Migration Act 1958 (Cth) ss 45, 46, 47, 48A, 48B, 54, 55, 65, 69, 349, 415 and 476

Judiciary Act 1903 (Cth) ss 39B and 44

Acts Interpretation Act 1901 (Cth) s 25C

Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186 - cited

Capistrano v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 154 - cited

Brettingham-Moore v Municipality of St Leonards [1969] HCA 40; (1969) 121 CLR 509 - cited

Onea v Minister for Immigration and Multicultural Affairs [1997] FCA 1472; (1997) 80 FCR 254 - cited

Minister for Immigration and Multicultural Affairs v Hayman [1999] FCA 217 - cited

Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 459 - cited

Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234 - cited

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 - applied

Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 - cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 - cited

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 - cited

Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386 - cited

Paramanthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 160 ALR 24 - cited

The King v Postmaster-General; Ex parte Carmichael (1928) 1 KB 291 - cited

Nguyen v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 639 - cited

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 - cited

Abebe v The Commonwealth [1999] HCA 14; (1999) 162 ALR 1 - cited

Johnstone v The Commonwealth [1979] HCA 13; (1979) 143 CLR 398 - cited

Fencott v Muller (1983) 152 CLR 570 - applied

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v "A"

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

1. The respondent file and serve any application for leave to amend and any submissions in writing he may wish to make concerning the amendment and the issue of costs within seven days.

2. The appellant file and serve any responding submissions in writing he wishes to make within seven days of the receipt of the respondent's submissions.

3. In the event no application for leave to amend is made within seven days the appeal is to be allowed, the orders of the primary judge are to be set aside and the respondent's Application is to be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

"Murphy's law is sometimes stated as requiring that everything which can go wrong will go wrong. It has a sub-law. That is that when something goes wrong everything else thereafter goes wrong too. The present case demonstrates this sub-rule." (Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 394 per Hill J)

1 The matter the subject of the present appeal is yet another demonstration of the sub-rule. The "something" that went wrong was simple. In an endeavour to forestall the effect of proposed amendments to the Migration Regulations 1994 ("the regulations"), that would have prevented the respondent from continuing in his employment after 30 June 1997, his former solicitor lodged his application for a Protection visa on that day without having sufficient instructions to complete the application, as required, by the respondent stating the reasons why he was claiming to be a refugee.

2 The application was in the approved form for a Protection visa (Form 866). Questions 36-40, which related to the reasons why the respondent was claiming to be a refugee, asked why the respondent left Sri Lanka, what he feared may happen to him if he returned, who he thought may harm or mistreat him if he returned and why he thought he would be harmed or mistreated if he returned.

3 The respondent answered the questions by stating that he was seeking Australia's protection so that he did not have to go back to Sri Lanka; otherwise, the respondent stated:

"I will be forwarding a statutory declaration detailing my claims for refugee status soon in response to questions 36-40."

4 The statutory declaration was not forwarded "soon", or at all, as the respondent's solicitor was awaiting a response to her request to the Department to be informed of the name and telephone number of the officer who would be dealing with the matter so that she could "discuss the provision of further material in support" of her client's application.

5 Meanwhile, on 24 July 1997 the delegate of the Minister, whose task it was to determine the application, without prior notice to the respondent's solicitor, decided that:

* as the respondent had not presented any claims in his application he was unable to conclude that any harm the respondent may fear was of sufficient gravity to amount to persecution within the terms of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention");

* on the "available" evidence the respondent did not have a real chance of persecution for a Convention reason if he returned to Sri Lanka;

* he was satisfied that the respondent was not a person to whom Australia has protection obligations under the Refugee Convention;

* the grant of a Protection visa was therefore to be refused.

6 The respondent might have applied for a review by the Refugee Review Tribunal ("the RRT") of the decision as a decision to refuse to grant a Protection visa: see ss 411 and 415 of the Migration Act 1958 (Cth) ("the Act"). Alas, the next mishap occurred. The respondent's former solicitor left instructions with her secretary to ensure that the application for the review was lodged within 28 days of the notification of the decision, being the time prescribed by s 412(1)(b). The instructions were not carried out, with the consequence that the application was not lodged within the required time. That omission resulted in the respondent losing any entitlement to a review by the RRT of the delegate's decision and the RRT having no jurisdiction to entertain a review.

7 The solicitor for the respondent applied to the Minister, under s 48B of the Act, to permit him to make another application for a Protection visa while he was still in Australia. The Minister, who can only invoke s 48B if he thinks it is in the public interest to do so, declined to permit another application.

8 In the result the respondent, through no fault of his own, was not able to have his application for refugee status considered on the merits by the delegate, the RRT or the Minister.

9 The respondent applied to Hayne J in the High Court of Australia for relief, under s 75(v) of the Constitution, in respect of the decision made by the delegate. His Honour ordered that any further proceedings for an order nisi for prohibition, certiori or mandamus against the Minister or the delegate be remitted to the Federal Court pursuant to s 44(1) of the Judiciary Act 1903 (Cth). The parties appeared to argue the matter before the learned primary Judge on the basis that the respondent's application for a Protection visa was a valid application for the purposes of the Act and was able to be entertained, as such, by the delegate.

10 Three contentions of the respondent found favour with the primary Judge. The first was that the delegate, although aware that the respondent's application foreshadowed the delivery of material critical to his claim for refugee status, determined that he would decide the application without waiting to receive that material or informing the respondent that he was proposing to do so. Accordingly, his Honour concluded that the delegate failed to discharge his duty to have regard to "all of the information in the application" (s 54(1)) and to "give proper consideration" to the respondent's application.

11 The second argument that found favour with his Honour was that there had been a denial of procedural fairness. The primary Judge concluded that, notwithstanding the prescriptive provisions in the statutory scheme in relation to the material to which the Minister or his delegate was obliged to have regard, there was no manifestation of a legislative intent to deny an applicant for a Protection visa an opportunity to have the application considered "in a fair and meaningful way". His Honour found that the information, "which was plainly essential to support the application" had been clearly foreshadowed in the application. In these circumstances, the primary Judge concluded that it was a denial of procedural fairness for the delegate to ignore that fact and to proceed, without awaiting that information, to make a decision refusing the application.

12 The third ground which succeeded before his Honour was that the delegate's conduct, including his decision, was unreasonable in the Wednesbury sense: see Associated Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. His Honour concluded that the unreasonableness of the delegate's conduct was so manifest and extreme that no reasonable decision maker would act as the delegate did.

13 The primary Judge was critical of the delegate's failure to respond to the request of the respondent's former solicitor for the name of the officer who was dealing with the matter to enable the solicitor to discuss the provision of the further material needed to support the application. His Honour concluded that the delegate's conduct in proceeding to reject the application in those circumstances was "unprincipled" and led the delegate to "engage in what might almost be described as an elaborate charade". Although senior counsel for the Minister argued that the delegate was entitled, indeed obliged, to act in accordance with the expressed legislative objective of expeditious and efficient determination of visa applications, plainly that objective is not to be achieved at the expense of fairness. That is particularly the case in respect of an application for refugee status where the Minister, or his delegate, is acting as the repository of, and is giving practical effect to, Australia's obligations under the Refugees Convention.

14 However, blameworthiness in the present matter goes both ways. The conduct of the respondent's former solicitor led to, what was described by his Honour as, "a shambles". She lodged an application that was incomplete in critical respects, which contravened mandatory requirements of the Act and the regulations and failed to provide the further information, which her client's application stated was to be forwarded "soon".

* the delegate's decision refusing the respondent a Protection visa be quashed with effect from the date it was made;

* the respondent's application for a Protection visa, together with such material as the respondent now desires to file in support of the application (which was to be filed within 21 days), be referred back to the delegate or to any other person nominated by the Minister for further consideration.

16 The Minister has appealed against his Honour's orders, contending that the delegate decided the application in accordance with the legislative scheme and that his Honour erred in finding that duties were imposed on the delegate that were not warranted in the circumstances or by the Act.

17 In the course of the appeal the Court raised with counsel whether a threshold question was whether there was a "valid" visa application for the purposes of the Act and, if not, whether a valid decision had been made under the Act to refuse to grant a Protection visa to the respondent. The fact that that issue, as a matter of law, had not been argued before his Honour or raised as such in the proposed Order Nisi does not preclude the Full Court from considering it, provided that the parties have been afforded an opportunity to be heard on the issue: see Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186, 194-195, 199 and 205; Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 at 308 and 317 and Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117; (1998) 85 FCR 115 at 129; Grant v Repatriation Commission [1999] FCA 1629 at [20]. The parties subsequently filed written submissions in accordance with directions of the Court.

18 Section 29 provides that, subject to the Act, the Minister may grant a non-citizen a visa to remain in Australia. Section 36 provides for a class of visa known as a Protection visa which may be granted to a non-citizen who is a person to whom Australia has protection obligations under the Refugees Convention.

19 Section 40 provides that the regulations may specify the circumstances in which visas of a specified class may be granted. Regulation 2.04 provides that, for the purposes of s 40 and subject to the regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant part of Sch 2 are the circumstances set out in that part of Sch 2. Schedule 2, which contains provisions with respect to the grant of sub-classes of visas, provides in cl 866.21(a) that all applicants for a Protection visa must satisfy the primary criteria one of which was that, at the time of the application, the applicant must make:

"specific claims under the Refugees Convention."

20 Section 45 provides that, subject to the Act and the regulations, a non citizen who wants a visa must apply for a visa of a particular class. Section 45(2) provides that the regulations may prescribe the way of making an application in specified circumstances or for a visa of a specified class. Relevantly, s 46 provides that an application for a visa is a valid application, if, and only if, it is for a visa of a class specified in the application and it is made in the way required by s 45(2). Section 45(2) only "authorises a prescription of the way for making an application in specified circumstances, not the circumstances in which a visa may be granted": see Capistrano v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 154 at 158 and Ramos v Minister for Immigration and Multicultural Affairs [1999] FCA 934 at [13] and [27]. Thus, if an application is not made in the way prescribed by the regulations it is not a valid visa application under the Act.

21 Regulation 2.07 provides that, for the purposes of ss 45 and 46 of the Act, if an application is required for a particular class of visa, the matters that are set out in the relevant Part of Sch 1 are the approved form (if any) to be completed by an applicant, the visa application charge and other matters relating to the application. Regulation 2.07(3) states that an applicant must complete an approved form in accordance with any directions in it. Schedule 1 of the regulations, which relates to classes of visas, contains a note that the Schedule sets out the specific ways in which a non-citizen is to apply for a visa of a particular class. The note continues:

"An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act ss 45, 46, and 47."

22 Item 1126 of Sch 1 provides for a Protection visa application in Sub-Class 866, the visa application charge and certain other matters not presently relevant.

23 The consequence of the foregoing provisions would appear to be that, subject to s 25C of the Acts Interpretation Act 1901 (Cth), an application that is not on an approved form and completed in accordance with the directions in it has not been made in the way prescribed by the regulations. For the purposes of s 45(2) of the Act a duly completed approved form, as a condition prescribed for making an application, is a prescription of the way an application is to be made rather than a specified circumstance in which a visa of a specified class may be granted.

24 Section 47 imposes an obligation upon the Minister to consider a valid application for a visa until, inter alia, the Minister grants or refuses to grant the visa. Section 47(2) provides that to avoid doubt the Minister is not to consider an application that is not a valid application. Section 47(3) provides that a decision by the Minister that an application is not a valid application is not a decision to refuse to grant the visa.

25 Sections 52 and 53 provide for the manner in which communications may occur between the Minister and a visa applicant. Section 54 provides that a Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all information in the application. Section 54(2) provides that information is in an application if the information is set out in the application or in a document attached to it or given pursuant to s 55. Section 55 provides that until the Minister has made a decision the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. However, s 55(2) provides that the Minister is not required to delay making a decision because the applicant might give or has told the Minister that the applicant intends to give further information. Sections 56-60 provide for the manner in which further relevant information might come to be considered by the Minister prior to determining to grant or refuse to grant a visa.

26 The provisions to which I have referred in Subdivision AA (ss 44-51) and Subdivision AB (ss 52-64) demonstrate how prescriptive the legislature has been as to the steps that a visa applicant and the Minister are obliged or permitted to take in relation to the provision of information relevant to a decision to grant or refuse to grant a visa prior to the decision being made. In these circumstances, absent some specific conduct on the part of the Minister that might raise a legitimate expectation that information will be considered by the Minister in a manner not specifically provided for under the statutory scheme, a visa applicant will have some difficulty in persuading a court that he or she has an entitlement to be heard, or that the Minister is obliged to afford that applicant an opportunity to be heard, other than in the manner provided under the Act. The legislature has considered and provided for the precise manner in which an opportunity to be heard is to be afforded in respect of a decision by the Minister to grant or to refuse to grant a visa. Therefore it is unlikely that a court, under the guise of procedural fairness, will engraft upon the legislature's provisions additional rights in respect of the same matters: see Brettingham-Moore v Municipality of St Leonards [1969] HCA 40; (1969) 121 CLR 509 at 524 per Barwick CJ (with whom Menzies J and Windeyer J agreed).

27 A critical aspect of the statutory scheme in respect of visa applications is the requirement in ss 45, 46 and 47 that it is only to apply in respect of a valid application for a visa. That requirement is re-inforced by s 65 (in Subdivision AC) which provides that, after considering a valid application for a visa, the duty of the Minister is to grant the visa if satisfied that the relevant criteria and conditions have been satisfied and, if not so satisfied, to refuse to grant the visa. Under the statutory scheme there appears to be no power to make a decision to grant or refuse to grant a visa other than after considering a valid application.

28 Section 69(1) provides that non-compliance by the Minister with Subdivisions AA or AB in relation to a visa application:

"does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed."

29 Thus, although non-compliance by the Minister with a provision in Sub-Division AA or AB does not have the consequence that the decision to grant or refuse to grant a visa is not a "valid decision" under the Act, the preservation of the decision for review is subject to the important qualification that if it is established to have been a "wrong" decision it can be set aside, as such, on review. As I later explain, if the non-compliance is such that it invalidates the decision, the decision will be a "wrong one" and therefore liable to be set aside on review.

30 Section 69(2) provides that where the Minister deals with a visa application in a way which complies with Subdivisions AA and AB the Minister:

"is not required to take any other action in dealing with it."

31 Section 66 provides for notification of a decision made under s 65. Applications to review the Minister's, or his delegate's, decision in respect of a visa application may be made to the Migration Review Tribunal ("the MRT") under s 347 or where applicable, to the RRT under s 411. In the context of the statutory scheme to which I have referred, the "review" referred to in s 69(1) appears to be a review provided for under the Act, being review by the MRT (Pt 5), the RRT (Pt 7) or the Federal Court (Pt 8).

32 A valid application for a Protection visa in Sub-class 866, inter alia, is one where the visa applicant completes the approved form for the visa application in accordance with the directions contained in the application. In the present case the respondent used the approved form but contrary to the directions in it did not complete the application by stating his reasons for claiming refugee status in response to Questions 36-40. As a consequence of that omission the respondent also failed to satisfy one of the primary criteria for the visa as he did not make specific claims under the Refugees Convention at the time of his application. Indeed, the required information was not provided, and accordingly no specific claims were made by the respondent under the Refugees Convention, prior to the delegate's decision to refuse to grant a Protection visa. Plainly, these circumstances raise the issue of whether a valid application and a valid decision was made under the Act.

33 The consequences of a failure to make a valid visa application under the Act have been considered in several recent decisions. In Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 the Full Court held that the effect of ss 45, 46 and 47 and reg 2.07 is that an application for a Protection visa must be on an approved form. Carr J at 261 and RD Nicholson J (with whose reasons Jenkinson J agreed) at 278-279 concluded that there was no room left by the statute for the concept of a constructive application or substantial compliance with the provisions for a form by conduct falling short of use of the prescribed form. RD Nicholson J (at 279) said that the failure to use the prescribed form resulted in there being no valid application and the Minister was enjoined from considering it.

34 In Onea v Minister for Immigration and Multicultural Affairs [1997] FCA 1472; (1997) 80 FCR 254 Finkelstein J concluded that the Minister was not entitled to consider an application for a visa made on an incorrect form. His Honour applied Wu and stated (at 261):

"On the proper construction of ss 46 and 47(1) and the regulations, the Minister is not required to consider any application for a visa unless that application is made on the appropriate form. It is the condition which must be satisfied before the Minister can exercise his power to consider an application: compare SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229 at 245; Attorney-General (NSW) Ex rel Franklin Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955. No other form will do. This is what the Parliament has laid down."

35 Finkelstein J again considered the consequences of using the wrong form in Minister for Immigration and Multicultural Affairs v Hayman [1999] FCA 217. Hayman concerned the power of the Immigration Review Tribunal to grant a visa different from that specified in the application; the application was on an approved form for a visa of a different class than that granted by the tribunal. His Honour at [19] regarded Wu as deciding that ss 45 and 46 disclose a clear intention:

"on the part of the parliament that unless an application for a visa is made in the prescribed form and in the prescribed manner no valid application exists."

36 His Honour observed at [21 and 22] that if the Minister considers an invalid application then on the review of the Minister's decision:

"The tribunal is in no better position than the Minister as regards a decision under review. It has power to affirm the decision, vary the decision or set the decision aside and substitute a new decision: see s 349(2). In addition, for the purposes of its review, the tribunal may exercise all of the powers and discretions that are conferred on the person who made the original decision: see s 349(1). But the tribunal does not have any power in relation to the grant of a visa that is greater than the power of the original decision-maker. Accordingly if the Minister is only able to consider a valid application for a visa, so too is the tribunal."

37 Section 349(4) (in respect of the MRT) and s 415(4) (in respect of the RRT) afford further support for his Honour's conclusions as to the limited power of the tribunals on review of a decision made in respect of an invalid application. The sub-sections provide that the tribunal must not, by varying a decision or setting aside and substituting a new decision "purport to make a decision that is not authorised by the Act or the regulations". Further, if a tribunal decision is reviewed by the Federal Court under Pt 8, grounds of review include that the person who purported to make the decision had no jurisdiction to make it (s 476(1)(b)) and the decision was not authorised by the Act or the regulations (s 476(1)(c)). Thus, if a decision preserved by s 69(1) is a decision that is not authorised by the Act, the decision would nevertheless be a "wrong" decision and liable to be set aside, as such, on review.

38 In the present case the problem is different to that which arose in Wu, Omea and Hayman in that the respondent applied for a Protection visa using the approved form but failed to complete it in accordance with the directions in it. Although the prescribed form has been used the application has not been made in the manner prescribed by the regulations: see s 45(2) and reg 2.07(3).

39 As the omission in question was a failure to comply with the prescribed form, s 25C of the Acts Interpretation Act applies. The section provides:

"Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient."

40 In Wu RD Nicholson J concluded (at 279) that, as the use of a prescribed form for an application had been imported into the provisions of the Act by reason of ss 45-47, it was inappropriate to approach the issue of use of the prescribed form as falling within s 25C of the Acts Interpretation Act. Although Wu was not concerned with an application form that was partially completed that issue was considered. Carr J (at 261) observed that in the case of a partially completed form it might be necessary to consider whether there has been a substantial compliance of the type considered by the Full Court in Hamilton v Minister for Immigration and Ethnic Affairs [1994] FCA 1424; (1994) 53 FCR 349. Similarly, RD Nicholson J (at 279) said it would be open to argument whether the inadequate use of the form satisfied requirements of the legislation, because to hold otherwise:

"would possibly occasion great injustice by precluding an applicant who has endeavoured to properly embark upon an application from consideration: Hamilton at 359; Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 46 FCR 117 at 123."

41 After expressing the view that there was room for the operation of substantial compliance once an approved application form was brought into being, RD Nicholson J (at 280) said:

"Such a result is not without purpose. Completion of the form requires the applicant to make the declaration of a Convention reason previously referred to. [The trial judge] characterised that declaration as a "very important piece of information". To construe the provisions as requiring strict compliance has a purpose consistent with the legislation, namely to avoid applications coming before the Minister which do not have a Convention reason to support them."

42 Subject to s 25C of the Acts Interpretation Act a valid application for a visa is only made, inter alia, if the approved form for that visa is used and completed in accordance with the directions in it: see s 45(2) and reg 2.07. However, the approved form in any particular case is not prescribed by the Act or the regulations. Rather, it is a form which the Minister may, in writing, approve: see reg 1.18(a). As is plain from Form 866, the approved form contains a large number of questions of varying relevance to the issue of whether an applicant has satisfied the criteria or other conditions for the grant of a Protection visa. Information sought in an approved form can relate to both substantive and procedural matters that better enable the Minister to discharge his functions in relation to visas under the Act.

43 I can see no reason for discerning a legislative intent that a failure to complete an approved form in accordance with any or every direction in it should necessarily result in the application being invalid for the purposes of the Act. There is much to be said for the view that the intent of the legislative scheme is that information necessary to enable the Minister or his delegate to decide the substantive issues raised by a visa application must be provided as directed in an approved form. However, I do not accept that the same intent exists in respect of all of the information sought in an incomplete form irrespective of the significance or relevance to the outcome of the application or the uncompleted parts of it. I respectfully agree with the observation of RD Nicholson J in Wu that a literal approach to compliance "would possibly occasion great injustice". I would add that such an approach would be a triumph of form over substance which I do not regard the legislature as intending in an area fundamental to the human and family rights of those falling within the purview of the Act, many of whom could be expected to experience some difficulty in duly completing approved forms.

44 Plainly, in the present case there has not been substantial compliance; rather, there has been substantial non-compliance. The information that was not provided as directed in the form related to the respondent's "specific claims under the Refugees Convention", a primary criterion for the grant of a Protection visa.

45 Accordingly, the decision to refuse to grant the visa was made in contravention of the requirement in the Act not to consider an invalid application (s 47(3)) and was not authorised by s 65, which only empowers the Minister to refuse to grant a visa after considering a valid application for a visa. The issue arising is whether a visa decision made upon an invalid application is an invalid decision under the Act.

46 It can now be taken to be accepted that, at least since the decision of the High Court in Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234, the issue of validity has to be determined by reference to whether it was a purpose of the legislation that an act in breach of a provision should be invalid. The test was recently stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 at 516 by McHugh, Gummow, Kirby and Hayne JJ as follows:

"A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". [Footnotes deleted]

47 The requirements in ss 45-47 import the requirements of the regulations, including reg 2.07 which, together with s 25C of the Acts Interpretation Act, require that an applicant must substantially comply with the obligation to complete an approved form in accordance with any directions in it. In those circumstances for the purpose of determining validity it is appropriate to treat the Act and the regulations as constituting a "single legislative scheme" (Brayson Motors Pty Ltd (In liq) v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651 at 656-657) and it is inappropriate to speak of the regulations as being subordinate to the Act (Hunter Resources Ltd v Melville at 250).

48 Section 65 provides for the power of the Minister to grant or to refuse to grant a visa to be exercised only after the Minister has considered a "valid application" for a visa. Thus, s 65, together with the requirement in s 47(2) that the Minister is not to consider an invalid application, afford strong support for the view that the legislature intended that a visa decision on an invalid application was not authorised by the Act and was an invalid decision.

49 In my view s 69 does not, of itself, operate to validate a visa decision purportedly made under s 65 on an invalid application. I accept that considering an invalid application, contrary to the requirement in s 47(2) not to do so, is a non-compliance by the Minister for the purpose of s 69(1). If the non-compliance related only to the issue of considering an invalid application it need not necessarily result in invalidity on a review of the decision. Thus, if information omitted from an application is later provided, consideration of the invalid application need not result in invalidity of the visa decision. Whilst it is unnecessary to consider that situation in the present case it is clearly arguable that the subsequent provision of the information might overcome the initial invalidity. The answer to that question would involve consideration of the role of ss 54(1), 54(2)(c) and 55 which require the Minister to have regard to all of the information "in the application" which, for the purposes of s 54(1), includes information provided subsequently under s 55. It may be that in such circumstances a valid application is to be regarded as having been made when the subsequent information is provided: see Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 at [25].

50 However, the present case does not only concern non-compliance with s 47(2) or whether the subsequent provision of the omitted information can result in a valid application. Rather, it is primarily concerned with a decision made under s 65 to refuse to grant a visa, after considering an invalid application. Non-compliance with s 65, being in Subdivision AC rather than Subdivisions AA or AB, is not covered by s 69(1). Whilst s 69(1) preserves the validity of a decision for the purposes of review where there has been non-compliance with Subdivisions AA and AB, it does not purport to extend to a decision made, on an invalid application, under s 65. Under s 65 the Minister is only authorised to make a decision to grant or refuse to grant a visa on a valid application.

51 Section 65 reveals a clear legislative intent that the Minister was not to have the power to grant or to refuse to grant a visa on an invalid application. As was observed by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at [119] the section, which is a "provision of central importance", imposes upon the Minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised at discretion, depending on whether the conditions precedent to the exercise of the power have been satisfied. I would add that if, contrary to my view, ss 65 and 69(1) were in conflict or inconsistent, s 65, as the leading and specific provision, would prevail over s 69(1) as the subordinate and general provision: see Project Blue Sky Inc at 509-510.

52 The language of the relevant provisions and the scope and object of the Act lead me to conclude that it was the purpose of the legislature that a decision to grant or refuse to grant a visa applied for on an invalid application is a decision which was made without power and is invalid save to the extent that particular provisions of the Act might expressly or impliedly provide otherwise. For example, in addition to decisions whose validity is preserved, at least for the purpose of review, by s 69(1), it is plain that judicially-reviewable decisions, for the purposes of Pt 8, include decisions made without authority under the Act or without jurisdiction: see ss 476(1)(b) and 476(1)(c). Such decisions, as with decisions covered by s 69, may be intended to have operative effect pending a review of the decision under the Act.

53 A further example relates to the grant of a visa which occurs when a record of it is made: see s 67. The visa "has effect" after it is granted (s 68) but can be cancelled in the circumstances provided for, inter alia, in Subdivision C of Division 3 Pt 2 of the Act. One such circumstance is that the visa should not have been granted because the grant was in contravention of the Act (s 116(1)(f)). Thus, a visa granted pursuant to an invalid decision is intended to have effect as a visa until cancelled in accordance with the Act.

54 Accordingly, whether a decision is invalid and is to have no operative effect whatsoever depends on a consideration of the particular section with which a case is concerned. The main issue in the present case relates to the entitlement of the respondent to make, and have the Minister determine, a valid application for a Protection visa. Thus, it is appropriate to consider the issue of validity, inter alia, in the context of s 48A of the Act and to determine whether that section applies to the respondent.

55 If the respondent now makes a valid application for a Protection visa, subject to s 48A of the Act, the Minister is to consider and determine the application: see ss 47(1) and 47(2)(b). Section 48A provides that, unless the Minister determines under s 48B that s 48A is not to apply, a non-citizen who has made an "application for a protection visa" in Australia where "the grant of the visa has been refused" may not make a further application for a Protection visa while in Australia. Section 47(3), which provides that the Minister is not to consider an invalid application, and s 47(4), which provides that where a decision is made that the application is not valid it is not a decision to refuse to grant a visa, afford some support for the view that for the purposes of s 48A the prior refusal of a Protection visa is to be a valid refusal to grant the visa in exercise of the power conferred by s 65.

56 The purpose of s 48A is to prevent multiple and continuing applications for a Protection visa after the first application has been refused in the exercise of the Minister's power to do so under s 65. As the Minister has no power to refuse to grant a Protection visa applied for on an invalid application, it does not appear to serve any useful purpose to prevent a person making a valid application if the prior "refusal" was in respect of an invalid application that was not capable of being properly determined, under the Act, on its merits. The context of s 48A and the mischief sought to be remedied by it (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408) suggest that it is intended only to apply in respect of a person who has made an application for a Protection visa which has been "refused" by a valid decision under s 65 of the Act.

57 If I were in doubt on the issue of construction, absent clear legislative intent, I would be hesitant to arrive at any other construction of s 48A where to do so could result in Australia giving effect to its obligations under the Refugees Convention in a capricious and arbitrary manner by denying applicants an entitlement to have at least one application for a Protection visa validly decided in accordance with the merits: see Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386 at 396-397. Further, I regard it as improbable that the legislature intended that result: see CIC Insurance Ltd v Bankstown Football Club Ltd at 408. For the above reasons I have concluded that s 48A does not preclude the respondent from now making a valid application under the Act for a Protection visa, as the decision to refuse to grant him a Protection visa was, for the purposes of s 48A, not a valid or operative decision to refuse to grant a Protection visa.

58 If, contrary to my view, the delegate had power on an invalid application to make a valid decision to refuse to grant a visa I would have concluded, as the primary Judge did, that the delegate did not discharge his duty to give the application for a Protection visa "proper, genuine and realistic" consideration on the merits: see Paramanthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 160 ALR 24 at 57 and the cases there cited. The failure of the delegate to properly, genuinely and realistically consider the claim for refugee status on the merits is evident in his decision. As explained above the application was not one that was capable of being considered on the merits as, not only was no material provided in respect of the respondent's claims, but no specific claims under the Refugees Convention were made by the respondent. Yet, the delegate purported to make a decision on the merits when he must have known that he was unable to do so on the material before him. The lack of genuineness is manifest in the statement in the decision that:

"Based on the available evidence, I find that the applicant does not have a real chance of persecution for a Convention reason if returned to Sri Lanka."

59 As no inquiry was made by the delegate as to the "available evidence" I am unable to discern how he could make a proper, genuine or realistic decision "[b]ased on the available evidence".

60 As I shortly explain, it is now too late to remedy the invalidity of the application. Subject to the issue of jurisdiction, it may have been appropriate for the primary judge to quash the decision by reason of its invalidity: see The King v Postmaster-General; Ex parte Carmichael (1928) 1 KB 291. However, it would not have been appropriate to remit the decision back to the Minister or a delegate as the only proper, genuine and realistic consideration that could have been given to the invalid application, apart from complying with the duty in s 47(3) not to consider it, would be to refuse it on the ground that the primary criterion required by s 40, reg 2.04 and cl 866.21(a), that specific claims under the Refugees Convention be made at the time of the application, had not been met. As it would be futile to remit the respondent's invalid application for further consideration by the Minister on the merits, the appropriate order, apart from quashing the decision, would have been to otherwise refuse relief: see Nguyen v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 639 at 647-648 and the cases there cited.

61 The primary relief sought, pursuant to s 75(v) of the Constitution, on the proposed Order Nisi of the respondent was stated as follows:

"The first and second respondents DO SHOW CAUSE WHY A WRIT OF MANDAMUS should not be issued out of this Court directed to the firstnamed respondent, or alternatively the secondnamed respondent, requiring them to cause the application for grant of a Protection Visa made by the applicant on 30 June 1997 to be determined according to law and A WRIT OF PROHIBITION should not be issued out of this Court directed to the secondnamed respondent to prohibit him from acting upon or giving effect to the decision of the first respondent of 24 July 1997 to reject the application for the grant of a Protection Visa made on 30 June 1997 by the applicant and A WRIT OF CERTIORARI should not be issued out of this Court directed to the first and secondnamed respondents to quash the decision of the firstnamed respondent made on 24 July 1997 to reject the application of the applicant made on 30 June 1997 for the grant of a Protection visa."

62 Each of the grounds relied upon for the relief sought was premised upon an obligation by the Minister or his delegate to consider and determine the respondent's application on the merits. Those grounds were denial of natural justice, failure to have regard to all of the information in the application, unreasonableness, failure to take into account the fact that further material addressing the merits was to be provided and unfairness. As no valid application was made the Minister, or his delegate, were obliged not to consider and determine the application on the merits.

63 However, in the events that occurred, the delegate purported to make a decision under s 65(1) of the Act without having power to do so. In the usual course a decision made without power, which is sought to be relied upon as having operative effect, would give rise to prohibition under s 75(v) of the Constitution: see Re Wilcox; Ex parte Venture Industries (1996) 66 FCR 511 at 531-533 and the cases there cited. Further, the Minister, by treating the delegate's decision to refuse to grant a Protection visa as valid and operative for the purposes of s 48A, maintains that he is not obliged to consider a valid application for a Protection visa that the respondent desires to make and have considered on its merits. In maintaining that position the Minister is not only wrongly acting upon or giving effect to a decision which is not a bar to the respondent's intended application for a Protection visa, but is also proposing not to discharge his duty under ss 47(1) and 47(2)(b) to consider and determine the new application, even if it is a valid application. That course of conduct can give rise to mandamus under s 75(v) of the Constitution.

64 Senior Counsel for the Minister accepted that if the Court arrived at the conclusion that the decision to refuse to grant the visa did not preclude the respondent from making a further application for a Protection visa, subject to the question of jurisdiction, it would be appropriate to grant declaratory, rather than prerogative, relief to enable the respondent to make that application. The grant of declaratory relief in such circumstances enables the parties to ascertain their legal rights and obligations in respect of the controversy that has arisen between them: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582 and Oil Basins Ltd v The Commonwealth [1993] HCA 60; (1993) 178 CLR 643 at 648-649. Baxter Healthcare v Comptroller General of Customs [1997] FCA 131; (1997) 72 FCR 467 is an example of a case where the Full Court (at 501) granted appropriate declaratory relief to ensure that the administrative decision maker acted in accordance with law when reconsidering a matter remitted for further consideration.

65 Counsel for the respondent contended that there was no need for a further application as the deficiency in the earlier application could now be remedied by provision of the information omitted from that application. I do not accept that contention. Although the application might have been capable of being treated as validly made at a later date, if and when the requisite information foreshadowed in the application to be provided "soon" was so provided, that did not happen in the present case. The application of the respondent was invalid when made and when the decision was made upon it: cf Phanouvong at [24] and [25]. In the circumstances of the present case it is too late to contend that the deficiency in the invalid application can now be remedied.

66 Accordingly, subject to the issue of jurisdiction, the declaration to which the respondent might be entitled is that under the Act, while he is in Australia, he has the right to make a valid application for a Protection visa. The grant of any declaratory relief would be in lieu of the issue of the prerogative relief to which the respondent may otherwise have been entitled.

67 Putting to one side the past misconceptions of the parties as to their respective rights and obligations under the Act, in the events that have occurred the real justiciable controversy in the present matter is one in which the respondent wishes to have an application by him for a Protection visa considered under the Act by the Minister on its merits and the Minister is contending that he is under no obligation to do so even if the respondent lodges a valid application for a Protection visa. That controversy is one that arises under the Act and is within the Court's original jurisdiction under s 39B(1A)(c) of the Judiciary Act. As the controversy is also with respect to a matter in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth it is also within the Court's original jurisdiction under s 39B(1) of the Judiciary Act. The Court plainly has jurisdiction in those circumstances to grant relief, on the remitter from the High Court under s 44(1) of the Judiciary Act, unless Pt 8 of the Act, and in particular s 485, operates to preclude the Court from having or exercising jurisdiction in the matter.

68 Section 475(1) of the Act provides that, subject to sub-section (2), judicially-reviewable decisions, which may be reviewed by the Court under Pt 8 of the Act, are decisions of the MRT, the RRT and other decisions made under the Act or the regulations relating to visas. However, s 475(2) provides that an RRT-reviewable decision is not a judicially-reviewable decision. An RRT-reviewable decision includes, relevantly, a decision to "refuse to grant a protection visa": see s 411(1)(c). As a judicially-reviewable decision is capable of being reviewed under Pt 8 for absence of jurisdiction (s 476(1)(b)) or absence of power (s 476(1)(c)), for the purposes of review under Pt 8, decisions that are alleged to be invalid on those grounds are reviewable decisions. However, it is not altogether clear that the delegate's decision in the present case, made without power and not being authorised by the Act or preserved by s 69(1), was nevertheless an RRT-reviewable decision under s 411(1)(c) and s 475(2)(d). If it is not, then it may well be a judicially-reviewable decision, being a decision under the Act (s 475(1)(c)) which under Pt 8 may be set aside on review on the ground of its invalidity.

"(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

(2) ...

(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903 the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part."

70 Section 486 provides that the Federal Court's jurisdiction with respect to judicially-reviewable decisions is exclusive save for the jurisdiction of the High Court under s 75(v) of the Constitution.

* the decision made by the delegate is not a "judicially-reviewable decision" in respect of which the Court has jurisdiction under s 486;

* the Court does not have the jurisdiction conferred under s 39B of the Judiciary Act 1993 (Cth) in respect of the RRT-reviewable decision made by the delegate which is a decision "covered by sub-section 475(2)";

* the remitter by the High Court under s 44(1) of the Judiciary Act could not operate to confer jurisdiction, as under that sub-section a remitter is limited to matters in which the Federal Court had "jurisdiction with respect to the subject matter and the parties".

72 Thus, so it was said, s 485 of the Act effectively "renders the power of remitter useless": see Abebe v The Commonwealth [1999] HCA 14; (1999) 162 ALR 1 at [100] per Gaudron J. Senior counsel also pointed out, as was stated in Johnstone v The Commonwealth [1979] HCA 13; (1979) 143 CLR 398 at 409 per Aickin J, that s 44 of the Judiciary Act does not authorise the High Court to confer jurisdiction; rather, what it does is to confer jurisdiction only in cases where the High Court "is authorised to remit the proceedings" and does in fact so remit. It was then contended that the remitter by the High Court under s 44(1) of the Judiciary Act does not confer on the Federal Court jurisdiction over a subject matter or parties which, in the present case, it otherwise lacks.

73 There is considerable force in the submissions of senior counsel. However, under s 485 of the Act the removal of the jurisdiction conferred on the Federal Court under s 39B of the Judiciary Act in respect of judicially-reviewable decisions and decisions covered by s 475(2), is stated not to affect the jurisdiction of the Court "provided" by Pt 8 or by s 44 of the Judiciary Act.

74 Section 485(3) limits the powers of the Court in respect of judicially-reviewable decisions remitted to the Federal Court under s 44 of the Judiciary Act. Thus, if the delegate's decision was not an RRT-reviewable decision it is not a decision covered by s 475(2) and would be a judicially-reviewable decision. In those circumstances the powers of the Court under s 485(3) on a remitter would enable the Court to grant relief based on the invalidity of the delegate's decision. Although a remitter in respect of decisions that are judicially-reviewable decisions is subject to the limitation imposed upon the powers of the Court by s 485(3), no such limitation is expressed to be imposed on the Court's powers on a remitter in respect of decisions that are not judicially-reviewable decisions. That outcome could be consistent with a legislative intent in respect of s 485(1) that, as there is no jurisdiction under s 44 of the Judiciary Act to remit other than in respect of judicially-reviewable decisions, there was no need to limit or otherwise deal with the Court's powers in respect of such decisions as it had none. The contrary view is that s 485(1) preserved remitters generally under s 44 of the Judiciary Act and did not intend to limit remitters to judicially-reviewable decisions. On that approach, the removal of the jurisdiction conferred under s 39B of the Judiciary Act is subject to an exception in respect of matters remitted under s 44 of that Act.

75 Although both parties relied upon certain observations made in Abebe at [20], [21], [99], [100], [170], [178] and [278] and in Minister for Immigration and Multicultural Affairs v Eshetu at [154-155] those cases were concerned with the operation of ss 481 and 485 in respect of judicially-reviewable decisions. In that context certain observations were made as to the powers of the Federal Court in a matter arising under the Act where the matter involves the review of a decision of the tribunal, which is a judicially-reviewable decision: see for example in Abebe at [100] per Gaudron J and at [207] per Kirby J. A significant issue in Abebe related to whether Pt 8 can confer jurisdiction in part of a matter or limit the "matter" in respect of which jurisdiction is conferred by limiting the power of the Court to resolve the whole of the justiciable controversy. The jurisdictional issue in the present case relates to the question of whether s 485(1) precludes the power to remit in respect of a decision that is not a judicially-reviewable decision where the Court otherwise has jurisdiction in respect of the parties and subject matter by reason of s 39B of the Judiciary Act.

76 In the present case it is unnecessary to determine the jurisdictional issues raised by s 485(1), including whether:

* the delegate's decision is an RRT-reviewable decision and therefore not a judicially-reviewable decision;

* the remitter of the High Court is inutile if the delegate's decision was an RRT-reviewable decision and therefore not a judicially-reviewable decision;

as the matter before the Court, as explained earlier, is a matter arising under the Act that does not involve, or require, a review of the decision of the delegate. Put another way, using the terminology of s 385(1) of the Act, the jurisdiction the Court is exercising in the present case is not "in respect of" a judicially-reviewable decision or a decision covered by s 475(2). Rather, the exercise of jurisdiction is in respect of the present entitlement of the respondent to make a valid application for a Protection visa under the Act. Accordingly, s 485(1) does not operate to remove the Court's jurisdiction, conferred under s 39B of the Judiciary Act, as no relief is required in respect of a judicially-reviewable decision or a decision covered by s 475(2) to quell the real controversy between the parties: see Fencott v Muller (1983) 152 CLR 570 at 608-609 per Mason, Murphy, Brennan and Deane JJ.

77 The position might have been otherwise if it were necessary for the respondent to obtain relief quashing the decision of the delegate. However as I have concluded that, for the purposes of s 48A, the delegate's decision was not a decision made under the Act that the grant of the visa be refused, relief setting aside the delegate's decision is not required.

78 Accordingly, the Court has jurisdiction to grant appropriate declaratory relief in respect of a matter arising under the Act: see s 39B(1A)(c) of the Judiciary Act. Further, as the Minister has maintained that he is not under a duty to consider a valid application by the respondent for a Protection visa, the Court would also have jurisdiction under s 39B(1) of the Judiciary Act.

79 Although the issue of invalidity was extensively canvassed with the parties during the hearing of the appeal and the Court granted leave to the parties to file further submissions on that issue after the hearing, no declaratory relief in respect of s 48A was sought by the respondent in the event that the Court rejected his contention that the application was a valid application under the Act. In all the circumstances and, in particular, the desirability of ensuring that any remaining aspects of the controversy are finally resolved, it is appropriate to permit the respondent to apply for leave to amend, if so advised, in the light of these reasons for judgment. However, if the Minister now accepts that the respondent is entitled to make a valid application under s 48A then there would be no need for an amendment as the controversy will have been resolved.

80 The orders that are presently appropriate are that the appeal be allowed, the orders made by the primary Judge be set aside and, in the event that no application to amend the proceeding is made, the application be dismissed. If the respondent applies for leave to amend the proceeding and that leave is granted the issue of the relief, if any, to be granted will need to be determined.

81 The issue of costs is one of some difficulty. Although the Minister has succeeded in his appeal, the main problem in the present matter from the outset was the breach of duty by the delegate in considering the respondent's invalid application when s 47(2) enjoined him from so doing. That breach ultimately led to the respondent and the Minister erroneously relying upon s 48B as the only recourse open to the respondent, without litigation, to have a valid application for a Protection visa considered on the merits. However, the respondent has also succeeded to the extent that s 48B does not operate to prevent the respondent from having a valid application by him for a Protection visa considered on the merits.

82 As the question of costs of the Application, the hearing before the primary judge and of the appeal may depend upon the orders the Court makes after the receipt of the written submissions as to relief it is desirable that that question be the subject of any further submissions the parties may wish to make. I agree with Finkelstein J that if no submissions

are received there should be no orders as to costs with the consequence that each party should bear his own costs of the proceeding and of the appeal.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

83 The respondent is Sri Lankan by birth. He arrived in Australia on a student visa in 1996. That visa was valid until August 1998. However, in the early part of 1997, the respondent decided to apply for the grant of a protection visa under the Migration Act 1958 ("the Migration Act"). The respondent consulted Victoria Legal Aid where he was advised by Ms Kim Christine Boyd. For reasons not presently relevant, Ms Boyd advised the respondent that he should lodge an application for a protection visa before 1 July 1997.

84 The respondent subsequently provided Ms Boyd with a lengthy statement in support of his claim to be a refugee. He prepared it himself. However, it was poorly written, difficult to comprehend and did not focus on any of the relevant issues. Ms Boyd therefore decided to have the respondent complete the formal parts of the relevant form in support of his application for a protection visa. She made a conscious decision not to include in the form any of the salient facts concerning the respondent's background in Sri Lanka as set out in his statement. She considered that that material was so poorly expressed, and so obviously inadequate, as to make it inappropriate to attempt to make any use of it in support of his claims to be entitled to a protection visa.

85 The critical part of the relevant form contained a series of five questions numbered 36 to 40 inclusive. Beneath each of the questions, a substantial space was provided to enable an answer to be included in the form. The form stated that if more space was required, extra pages could be attached as required.

86 Instead of having the respondent attempt to answer the relevant questions, Ms Boyd arranged for question 36 to be answered as follows:

"I will be forwarding a Statutory Declaration detailing my claims to refugee status soon in response to questions 36-40."

Questions 37 to 40 inclusive were simply left blank. However, the remainder of the form, which contained questions seeking particulars of a purely formal nature, was fully completed. The respondent declared at the end of the form as follows:

"The information I have supplied on or with this form is complete, correct and up-to-date in every detail."

87 On the same day, Ms Boyd addressed a letter to the manager of the Onshore Refugee Program at the Department of Immigration and Multicultural Affairs. The letter enclosed the form and concluded as follows:

"Would you please advise me of the name and telephone number of the officer who will be dealing with this matter so that I can discuss the provision of further material in support of Mr [A's] application and arrangements for his student visa to be cancelled."

The Department acknowledged that it had received the application fee and the letter enclosing the form on 30 June 1997.

88 The first response that Ms Boyd received to her letter, and the form enclosed with the letter, was a copy of the reasons of the delegate of the Minister for Immigration & Multicultural Affairs ("the Minister") for his decision, dated 24 July 1997, purporting to refuse the respondent's "application". The delegate, in his reasons, concluded as follows:

"As the applicant has not presented any claims in his application, I am unable to conclude that any harm he may fear is of sufficient gravity as to amount to persecution within the terms of the UN Convention on Refugees.

Findings of Fact

Based on the available evidence, I find that the applicant does not have a real chance of persecution for a Convention reason if returned to Sri Lanka."

89 In the ordinary course, assuming that there had been a valid application by the respondent, he would have had available a relatively straightforward remedy for what had occurred. He could simply have sought review of the delegate's decision by the Refugee Review Tribunal ("the Tribunal"). Under the Migration Act, however, such an application for review must be lodged within 28 days of notification of the decision. For reasons that need not be recited, no such application for review was lodged within that period. The Tribunal had no power to extend the time for lodging such an application and, accordingly, the Tribunal had no power to consider any application for review.

90 Nevertheless, Ms Boyd sent an application for review to the Tribunal. On 4 February 1998, the Tribunal, as expected, rejected the application since it had not been lodged in time and there was no jurisdiction to entertain it.

91 On 30 September 1997, Ms Boyd wrote to the Minister requesting that he exercise the powers conferred on him under section 48B of the Migration Act. That section authorises the Minister to make a determination that an applicant who has been refused a protection visa may make another application for such a visa while still in Australia. Section 48A of the Migration Act would otherwise prevent the making of such an application. On 17 April 1998, the Minister informed Ms Boyd that he had decided not to exercise the powers conferred on him by section 48B of the Migration Act.

92 On 2 June 1998, the respondent applied to the High Court of Australia for an order nisi for prerogative writs:

(a) requiring the Minister and his delegate to cause the application for the grant of a protection visa made by the respondent on 30 June 1997 to be determined according to law;

(b) prohibiting the Minister from acting upon or giving effect to the decision of the delegate of 24 July 1997 to reject the respondent's application for the grant of a protection visa;

(c) quashing the decision of the delegate made on 24 July 1997 to reject the respondent's application for the grant of a protection visa.

93 On 2 June 1998, without making any order nisi and without giving reasons for his decision, Hayne J made the following orders:

"1. The further proceedings in this application for an Order Nisi for Writs of Prohibition, Mandamus and Certiorari against the First Respondent and Writs of Certiorari and Mandamus against the Second Respondent be remitted into the Federal Court of Australia, Victoria District Registry.

2. The application for an Order Nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court.

3. The Deputy Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

4. The costs of the application be costs in the cause."

94 Following remitter, a judge of the Court heard the matter at first instance on 10 December 1998. On 17 March 1999, the primary judge made the following orders:

"1. Pursuant to s 481(1)(a) of the Migration Act 1958 (Cth) the decision of the first respondent of 24 July 1997 refusing the applicant a protection visa be quashed with effect from 24 July 1997.

2. Pursuant to s 481(1)(b) of the Migration Act 1958 (Cth) the applicant's application for a protection visa of 30 June 1997, together with such material as the applicant now desires to file in support of that application, such material, if any, to be filed within 21 days of the delivery of these reasons for judgement, be referred to the first respondent, or, in the alternative, any other person nominated by the second respondent, for further consideration.

3. The second respondent pay the applicant's costs, including the costs of the proceedings in the High Court before his Honour, Hayne J."

95 From those orders, the Minister has appealed to the Full Court seeking orders that the decision of 17 March 1999 be set aside and that the application for an order nisi be dismissed. On 3 September 1999, the Court heard argument on the merits of the decision of the primary judge. In the course of argument, the Court raised the question of the jurisdiction of the Federal Court to entertain the matter remitted by Hayne J. That question had not been raised by either party before the primary judge, and it must be assumed that it was not raised by the parties before Hayne J. The parties subsequently made written submissions on the question.

96 The proceedings were commenced in the High Court of Australia under section 75(v) of the Constitution. Section 75 provides relevantly as follows:

"In all matters:

...........

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth

..........

the High Court shall have original jurisdiction."

The order for remitter to the Federal Court of Australia was made under section 44(1) of the Judiciary Act 1903. That provision is in the following terms:

" 44 (1) Any matter other than a matter to which sub-section (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted."

97 Thus, section 44 confers power to remit to a court "that has jurisdiction with respect to the subject matter and parties". Clearly enough, this Court has jurisdiction with respect to the parties to the proceeding. The question, however, is whether it has jurisdiction with respect to the subject matter of this proceeding.

98 Section 485 of the Migration Act provides as follows:

" 485. (1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

.....................

(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part."

The decisions covered by section 475(2) of the Migration Act include "an RRT reviewable decision". Under section 411(1)(c), an RRT reviewable decision includes "a decision to refuse to grant a protection visa".

99 If the Minister's delegate made a decision to refuse a visa in respect of a valid application, that was an RRT reviewable decision. If that is the case, the subject matter of the proceeding is an RRT reviewable decision within the meaning of that provision. Prima facie, therefore, the Federal Court would have no jurisdiction in respect of that subject matter by reason of the operation of section 485(1). In particular, the Court has no jurisdiction with respect to decisions that have been made by a delegate of the Minister but that have not thereafter been dealt with on review by the Tribunal. The reference to section 44 of the Judiciary Act in section 485(1) does not avoid that consequence.

100 When a person who makes a claim against the Commonwealth, in tort or in contract, brings a suit against the Commonwealth in the High Court, section 44 empowers the Court to remit the matter to a court that has jurisdiction in tort or contract and in matters in which the Commonwealth is a defendant. That is so even if that court would not have had jurisdiction if proceedings had been instituted there in the first instance. Since all the Supreme Courts of the States have jurisdiction in actions in contract and tort, and jurisdiction to entertain proceedings in which the Commonwealth is a defendant, the High Court has power to remit to any Supreme Court of a State a pending matter in which a claim in tort or contract is brought against the Commonwealth - Johnstone v Commonwealth of Australia [1979] HCA 13; (1979) 143 CLR 398 at 402.

101 Thus, jurisdiction of a like kind, falling short of actual jurisdiction, is sufficient to satisfy the requirement of section 44. For example, before section 39B of the Judiciary Act was enacted, the Federal Court had no power or jurisdiction to issue a writ of mandamus against an officer of the Commonwealth. Nevertheless, the Federal Court's jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 to compel the performance of a statutory duty imposed by a Commonwealth statute is of the same kind as that which might be exercised by the High Court upon an application for a writ of mandamus - see In re O'Reilly; Ex parte Bayford Wholesale Pty Ltd [1983] HCA 27; (1983) 151 CLR 557 at 559 and 561.

102 In such cases, the jurisdiction of a lower court is concurrent with the jurisdiction of the High Court. That jurisdiction, however, is conferred on the lower court by the Parliament, not by the High Court. Section 44 does not authorise the High Court to confer federal jurisdiction on a lower court. It confers federal jurisdiction on a lower court but only in cases where the High Court is authorised to remit the proceedings to a lower court and does in fact so remit - Johnstone v Cth at 408-409.

103 The matters that are within the jurisdiction of the Federal Court under section 486 of the Migration Act may well be matters that could be brought in the original jurisdiction of the High Court. In relation to such matters, the Federal Court would have jurisdiction conferred by section 486 of the Migration Act concurrently with that conferred upon the High Court by section 75(v) of the Constitution. The existence of such concurrent jurisdiction in the Federal Court would support a remitter to the Federal Court under section 44 of the Judiciary Act - Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577 at paragraphs 154 and 155.

104 However, in the absence of such concurrent jurisdiction, there would be no power of remitter. In other words, where there is concurrent jurisdiction for both the High Court and the Federal Court, and a proceeding is brought in the original jurisdiction of the High Court, so much of the matter in the High Court as is within the jurisdiction of the Federal Court may be remitted under section 44. However, section 44 does not authorise the remitter to the Federal Court of so much of a matter before the High Court as would not be within the jurisdiction of the Federal Court. So much is clear from the reference in section 44 to a court "that has jurisdiction with respect to the subject matter".

105 That conclusion was recognised by Gummow J when giving reasons for referring a question to the Full Court of the High Court in Re Minister for Immigration & Multicultural Affairs; ex parte Abebe [1998] HCA 16; (1998) 152 ALR 177 Gummow J said (at 180):

"In the present case, that provision [s 485(3)] operates to exclude the exercise of the remitter power for which the parliament otherwise has made provision in s44 of the Judiciary Act. That power of remitter is of considerable importance in facilitating the exercise by [the High Court] of its primary and unique functions. These are, first, in the original jurisdiction, the disposition of certain matters arising under, or involving, the interpretation of the Constitution and secondly, its function, subject to the grant of special leave, as a final court of general appeal for the whole nation. The result achieved by the [Migration] Act as it now stands is to encourage the twin evils of cost and delay and, it would appear, to impede the efficient administration of the migration laws."

Other members of the High Court made similar observations when the matter came before the Full Court in Abebe v Commonwealth of Australia [1999] HCA 14. Gaudron J, for example, observed (at paragraph 100), that section 485 rendered the remitter power under section 44 "effectively...useless." Kirby J, noting that the limitations in Part 8 of the Migration Act applied to limit the grounds of review available to the Federal Court upon remitter, commented (at paragraph 207) as follows:

"...[P]arliament has limited the grounds upon which the Federal Court may review a decision of the tribunal (and has applied those limitations to any matter or part of a matter remitted to that court by this court)...... Applications of this kind, in default of the availability of equivalent redress in the Federal Court (or of effective remitter to the Federal Court), is extremely inconvenient. It is also expensive and time-consuming."

[emphasis added]

Accordingly, section 485(1) does no more than recognise the possibility of concurrent jurisdiction. Whilst the Court's concurrent jurisdiction under section 44 is preserved by section 485(1), remitter under section 44 is limited to a matter with respect to which the Court has jurisdiction independently of section 44.

106 If, in a proceeding in the High Court, a claimant sought orders for prerogative writs, together with review of a "judicially reviewable decision under the Migration Act", so much of the proceeding in the High Court as consisted of the review of the judicially reviewable decision could have been remitted to the Federal Court. However, that is the extent of the permissible remitter under section 44. In so far as the matter consists of a claim for relief in respect of decisions covered by section 475(2), the matter could not be remitted.

107 It was only to the extent, if any, that the proceeding before the High Court included matter that was otherwise within the jurisdiction of the Federal Court that this matter could have been remitted to the Federal Court. As indicated above, if the delegate's decision was made in respect of a valid application the decision in respect of which prerogative writs were sought was an RRT reviewable decision. As such, it was not within the jurisdiction of the Federal Court. Accordingly, the order for remitter was not effective to confer jurisdiction on the Federal Court in respect of that matter.

108 It would follow that the proceeding in the Federal Court, as presently constituted, is incompetent, since the order for remitter would not have been effective to confer any jurisdiction in respect of the matter on the Federal Court. The matter was commenced in the High Court. In so far as the matter is not within the jurisdiction of the Federal Court, it still remains before the High Court. The questions that were decided by the primary judge would be questions for the High Court, exercising original jurisdiction. Subject to the comments made below, I would set aside the orders made by the primary judge and make an order dismissing the application as incompetent.

109 In the course of argument, the Court raised with counsel for the parties the question of whether or not the document lodged by the respondent on 30 June 1997 was a valid application within the meaning of section 46 of the Act. That question will have some significance in relation to section 48A of the Act. As I have indicated above, the Minister has declined to exercise the discretion conferred by section 48B of the Migration Act. If, however, no valid application was lodged on 30 June 1997, then, notwithstanding the apparent determination by the Minister's delegate of the purported application, the respondent may yet be entitled to lodge an application for a protection visa.

110 The parties were directed to submit such further written submissions as they were advised on the question of the validity of the purported application. Pursuant to that direction, the Court received a written submission on behalf of the respondent dated 10 September 1999 in which the respondent contended that he had made a "valid application" on 30 June 1997. The reasons for that contention were set out in some detail.

111 Subsequently, the Court received further submissions, dated 21 September 1999, on behalf of the Minister. Those submissions pointed out that the question of whether or not the respondent's application was a "valid application" for the purposes of section 46 of the Act was not raised before the trial judge and that argument before the trial judge proceeded on the basis that the application was a valid application. In the submission, the Minister supported the respondent's contention that the application was a "valid application". The Minister did so, however, on the limited basis that the respondent substantially complied with the requirements of the Migration Act when making the purported application.

112 As the proceedings are presently constituted, the validity of the purported application is not an issue before this Court; nor is the question of whether section 48A would now preclude an application by the respondent or a protection visa. The proceeding has been conducted, both in the High Court and at first instance in this Court, on the basis that the application is valid. For the reasons indicated, if that is correct, this Court has no jurisdiction to review the delegate's decision.

113 If the respondent wants to resile from the position adopted in his further submissions to the Court, he should be given the opportunity of seeking leave to amend the proceeding so as to seek a declaration concerning the validity of the application lodged on 30 June 1997 and whether the respondent is precluded from lodging such an application by the operation of section 48A of the Act. There does not appear to be any reason why the questions would be excluded from the jurisdiction of this Court by section 485 of the Migration Act. Accordingly, the Federal Court could decide the questions.

114 Since the question of jurisdiction was not raised before the trial judge, there should be no order as to the costs of this proceeding. Similarly, there should be no order as to the costs of the appeal. However, since there has been no argument as to costs, the question of the costs of the appeal to date should be reserved, pending resolution of the question now raised.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

On appeal from a single justice of the Federal Court

116 The material facts and the relevant statutory provisions that govern the outcome of this appeal are to be found in the reasons of the other members of this Court. I will not repeat them.

117 The argument below proceeded upon the basis of two untested assumptions. The first was that the Federal Court had jurisdiction to deal with the application for the issue of prerogative writs that had been remitted to it under s 44 of the Judiciary Act 1903 (Cth). The second assumption was that the application for a protection visa lodged by the respondent was a valid application that the Minister was required to consider. It is necessary to consider the validity of each assumption. For reasons that will become apparent the resolution of these apparently unrelated issues will show that the appeal should be allowed.

118 There can be no doubt that the application for a protection visa lodged by the respondent was not a valid application. Section 46 of the Migration Act 1958 (Cth) gives the criteria for a valid application for a visa. One requirement is that it be made "in the way required by subsection 45(2)": s 46(1)(b). Section 45(2) provides that the regulations may prescribe the way for making an application. The regulations do make such prescription. Regulation 1.18 provides that the Minister may approve forms for use in making an application for a visa. The approved form for a protection visa is form 866: Migration Regulations 1994, Schedule 1, Item 1126. Regulation 2.07(3) provides that an applicant must complete an approved form in accordance with any directions on it. Two of the directions that appear on form 866 are that the applicant must "complete [the form] in English" and that the applicant "must answer all questions". Those directions were not complied with. Nor were they substantially complied with.

119 It is true that on the appeal neither the respondent nor the Minister sought to contend that the application was not valid even when the issue was raised by the Court. But that cannot effect the way in which the Court must deal with the matter. In the first place the parties to this proceeding are not litigating private rights. The public interest requires the appeal to be determined on the true issues. In the second place, where the jurisdiction of the Court is a consideration, it is for the Court to decide, and not for the parties to concede, all questions of fact and law.

120 As the application was not a valid application for a visa, the Minister was not entitled to consider it. The reason is clear. Under the Migration Act, subject to certain immaterial exceptions, a visa is granted, if at all, to a person who has made an application for the visa: s 45(1). Accordingly, if there is no application for a visa, one cannot be refused: it is not a unilateral process. I can illustrate the point by an unusual example. In 1943 an English junior was included in the list of new Kings Counsel. It was mistakenly assumed that he had applied for silk. In the absence of an application there is no doubt that the junior did not become one of His Majesty's counsel, learned in the law, in 1943. To ensure that only a person who has applied for a visa can be granted it, s 47(3) provides that: "the Minister is not to consider an application that is not a valid application". It is true that the Minister must consider whether an application is or is not a valid application. If the Minister decides that a particular application is not a valid application and therefore determines that he is not to consider it, that is not a decision to refuse to grant a visa: s 47(4). It could not be a decision to refuse to grant a visa, because such a decision can only be made after a valid application for a visa has been considered: see s 65.

121 In this case a delegate of the Minister considered an invalid application for a visa in contravention of s 47(3). According to the delegate, he decided to refuse to grant the visa. Of course, that is not a proper characterisation of what the delegate did. In reality the delegate made no decision at all. His act was devoid of legal content.

122 This conclusion is not affected by s 69 of the Migration Act which provides:

"(1) Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it."

One purpose of this section is to prevent compliance with subdivision AA or AB being treated as a condition of the exercise of the power to grant or to refuse to grant a visa. The section can have no application in the present case for two reasons. First, it applies only in the case of a decision to grant or to refuse to grant a visa. Here, as I have demonstrated, no such decision has been taken. Second, it applies when there has been non-compliance with the relevant statutory provisions (those found in subdivision AA and AB) in relation to a visa application. That can only occur, in my opinion, when there has been non-compliance with regard to a valid visa application and not a purported or invalid application.

123 When the Minister has considered a valid application for the grant of a visa and has refused to grant it, the Federal Court does not have jurisdiction to review the decision. Such a decision is defined by s 411 as an "RRT-reviewable decision" and by the combined effect of: s 475 which sets out what are judicially reviewable decisions; s 485 which limits the jurisdiction of the Federal Court in respect of decisions taken under the Migration Act; and s 486 which confers jurisdiction on the Federal Court in respect of judicially-reviewable decisions. An RRT-reviewable decision is not a decision which is amenable to review in the Federal Court. The fact that the application to review the decision was instituted in the High Court and then remitted to the Federal Court under s 44 of the Judiciary Act does not result in the Court obtaining jurisdiction for the reasons given by Emmett J.

124 It follows from the foregoing that the appeal must be allowed and the orders made by the trial judge be set aside. If I am correct in my view that the delegate did not make a decision to refuse to grant a visa, there is no decision that can be quashed; his act can be regarded as nugatory or void and there is no need for an order quashing the decision (Brygel v Stewart-Thornton [1992] VicRp 70; [1992] 2 VR 387 at 391) although it might be made: The King v Postmaster-General; Ex parte Carmichael (1928) 1 KB 291. However, the order directing the invalid application to be further considered was wrongly made and must be set aside. If the delegate did decide to refuse to grant a visa (a view which I do not hold) the Federal Court has no jurisdiction to review it.

125 An aspect of the controversy between the parties concerns whether the respondent is presently entitled to make an application for a protection visa. If he has already made an application which has been refused, the respondent would not be entitled to make a further application while still in Australia unless the Minister determined otherwise: that is the effect of s 48A and s 48B. No doubt it is for this reason that the Minister contends that the respondent had made a valid application for a protection visa which has been refused. Having rejected this argument it necessarily follows that there is nothing preventing the respondent lodging a valid application for a protection visa. If the respondent wishes to obtain formal relief in respect of this issue (for example, by the grant of a declaration of right) he must make application to amend the process currently before the Court. In that regard I agree with the orders proposed by Merkel J. I agree with His Honour that the Court has jurisdiction to determine the "real justiciable controversy" between the parties.

126 As regards the costs of the appeal and of the hearing below I agree with both Merkel and Emmett JJ that the parties be permitted to make submission on the orders that should be

made. If no submissions are received I would order that each party should bear his own costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.