REASONING ON THE APPEALS
58 To adapt an observation made by Gyles J in Yilmaz, at [68], there is something curious about these proceedings. The respondent to each appeal, having applied to the RRT for review on the merits of the delegate's decision to refuse a protection visa, applied to the Court for an order setting aside the RRT's decision. The respondents' applications for judicial review were each based on the ground that no valid application for a visa had ever been made and that therefore the RRT lacked jurisdiction to review the delegates' decisions on the merits. Yet it was the respondents themselves who had invited the RRT to take this course. As in Yilmaz, the Minister has taken no point about the form of the proceedings.
59 The Migration Act places great emphasis on the need for a visa applicant to complete a prescribed application form. The authorities have recognised, in particular, that ss 45-47 of the Migration Act manifest a clear intention that lodgment of an application in the prescribed form is an essential precondition to the exercise of the Minister's power to consider, and to grant or refuse, a visa.
60 In Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, the Full Court held that non-citizens who had arrived illegally in Australia were not entitled to be treated as persons to whom Australia had obligations under the Refugees Convention since they had not lodged applications in the prescribed form seeking protection visas. R D Nicholson J (with whom Jenkinson J agreed) explained the statutory scheme as follows (at 278-279):
"Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s 45(1) asserts that a non-citizen "must" apply for a visa of a particular class. Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed 'if, and only if' certain requirements are met. One such condition is that the application is made in the way required by ss 45(2) and (3), that is as provided for in [reg 2.07]. Section 47(1) confines the Minister to only considering a valid application for a visa. Section 47(3), 'to avoid doubt', enacts that the Minister is not to consider an application that is not a valid application. How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial [a]ct.
…
In my opinion, a reading of these provisions makes apparent that the only way in which a visa of a particular class can be obtained is for an application to be made for it on Form 866. Short of that there is no valid application and the Minister is enjoined from considering it".
Carr J expressed views to similar effect: at 261. See also Minister v A at 443, per Merkel J; Yilmaz, at [19], per Spender J, at [69], per Gyles J.
61 It was common ground in the appeals that neither of the "applications" lodged with the Department had been completed in accordance with the directions stated on Form 866. It follows that neither respondent complied with reg 2.07(3) and the applications, as originally submitted, were not valid applications: s 46(1)(b). The Minister was therefore precluded from considering each of the "applications" for a protection visa: s 47(3).
62 The authorities have acknowledged that, by reason of s 25C of the Acts Interpretation Act 1901 (Cth), substantial compliance with the requirements of reg 2.07(3) may be sufficient: Wu, at 278-79, per R D Nicholson J; Minister v A, at 444-445 per Merkel J. However, as occurred in Minister v A and Yilmaz, the respondents' failure to answer the critical questions on the prescribed forms meant that there had been no substantial compliance with the requirements of reg 2.07(3): Minister v A at 445, per Merkel J; Yilmaz, at [69], per Gyles J.
63 The majority in Yilmaz held that an application for a protection visa that omits essential information from Form 866 is not necessarily incurably invalid. The context in which the majority reached that conclusion is important. The appellant had lodged a Form 866 on 7 August 1997. The form, as lodged, omitted answers to critical questions, but contained the endorsement "statement to follow" opposite various questions. On 13 October 1997, the appellant signed a statutory declaration setting out his claims. It was posted to the Department on 15 October 1997. On that date, but before the statutory declaration had been received, the Minister's delegate refused to grant a protection visa. The delegate took this course not because the application was considered to be invalid, but on the ground that, in the absence of the missing information, the appellant could not establish his claim on the merits. On 22 October 1997, the appellant sought review by the RRT of the delegate's decision. The RRT subsequently affirmed the decision on the merits.
64 A majority of the Court (Spender and Gyles JJ; Marshall J dissenting) held that the RRT had acted within its jurisdiction and powers in affirming the delegate's decision. Both Spender and Gyles JJ took the view that, had the appellant's statutory declaration of 13 October 1997 been received by the Department prior to the delegate's decision on 15 October 1997, the appellant would have made a valid application for a protection visa. The delegate then would have had power, under s 65 of the Migration Act, to grant or refuse to grant the application. Their Honours went on to hold that, by virtue of s 415(1) of the Migration Act, the RRT had the same powers as the delegate.
65 Spender J explained why, in these circumstances, there would have been a valid application (at [19]-[21]):
"… when a person seeking a protection visa submits an 'application' which, in respect of the claims for protection under the Refugees Convention, notes 'statement to follow', it is not at that time a valid application. It is inchoate. The duty of a delegate of the Minister is not to consider it: s 47(3) of the Act.
If, before the making of the decision of the delegate, the promised information is supplied, in my opinion the amalgam of the original document with the claims foreshadowed in it, and the document expressing the claims that had been foreshadowed, constitutes a valid application, and the delegate is to exercise the powers referred to in s 65 of the Act in relation to it.
As a matter of common sense, it seems to me that an application based on grounds which are said to be 'to follow' is not complete until those grounds have been supplied".
66 Gyles J observed (at [70]) that there was "much to be said" for the view that an incomplete prescribed form did not constitute an application at all. The alternative view was that the application in its original form had been made but was invalid. He expressed the opinion (at [72]) that if the missing information had been received before the delegate's decision "it would have completed the application or cured the defect, whichever may be the correct analysis".
67 In Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908, a case decided four days before Yilmaz, Hill J considered the effect of an applicant supplying to the Department information foreshadowed in an incomplete Form 866. His Honour held that the proper analysis was as follows: (at [50]-[52]):
"[T]he applicant lodged what can be referred to as an 'inchoate' application completed by the supply of information, which supply, while clearly not operating with retrospective effect to validate an application already lodged, did operate for the first time to cause there to be brought into existence a valid application. So long as the provision of the information operated to complete the application before consideration by the Minister, the decision of the Minister could not be invalidated, because at the time of consideration by him, there was a valid application, and in consequence the decision of the Minister was a valid decision.
…
Once the statement referred to in the Application Form to be forthcoming was in fact provided, it had to be read with the form then lodged. Once this happened there was then an application which the Minister was obliged to consider …".
68 Hill J considered that the only difficulty with this argument lay with s 54 of the Migration Act, which required the Minister to have regard, in deciding whether to grant or refuse a visa, to all of the information "set out in" or "attached to" the application. His Honour took the view that information was "in" an application if it was incorporated by reference.
69 In both Yilmaz and Nader, the Court was concerned with a situation, either actual or hypothetical, where an applicant, who had lodged an incomplete Form 866 and who had promised additional information, subsequently forwarded a document containing that information to an office of Immigration (as defined by reg 1.03) before the decision making process had commenced. In these circumstances, the view has been taken that the two documents (the Form 866 and the document containing the promised information) can be read together. Accordingly, a valid application is taken to be lodged when the promised information is supplied.
70 The circumstances in the present appealsare, of course, different because the information foreshadowed in each Form 866 was never supplied by the respondents to an office of Immigration. Mr Li never provided the "attachment" referred to in the incomplete Form 866. Rather, he supplied a detailed submission to the RRT, in support of his application for review of the delegate's refusal to grant him a protection visa. That submission did not purport to be the attachment omitted from the Form 866. Most importantly, there is nothing to indicate that Mr Li's submission was ever forwarded to or received by the Department or, for that matter, by the Minister's delegate. In Mr Kundu's case, the submission was forwarded by his agent to the RRT, not to the Department. There is nothing to suggest that it was ever received at an office of the Department.
71 The Minister's principal contention was that the submissions forwarded by Mr Li and Mr Kundu to the RRT completed the inchoate initial applications or in some other manner constituted valid applications. The difficulty confronting this contention lies in reg 2.10(1)(b). On the face of it, reg 2.10(1)(b) requires an application for a visa to be made at an office of Immigration. It is difficult to see how that requirement can be complied with if an essential component of a valid application (that is, the information foreshadowed in, but not accompanying the original application) is supplied, not to an office of Immigration, but to a different body located at a different address.
72 Regulation 2.10(1)(b) is plainly drafted on the assumption that an application for a visa is to be considered by the Minister, at least in the first instance. It proceeds on the basis that the prescribed form should not only set out the claims made by the applicant, but should be made at an office of Immigration. There are obvious reasons of administrative efficiency underlying the requirement that the application be made at an office of Immigration and not elsewhere. Among its other advantages, the requirement facilitates consideration of the application by the Minister, or his or her delegate. The requirement is consistent with the legislative insistence on completion of a prescribed application form, even to the point of conditioning the exercise of the Minister's powers on lodgment of a completed form.
73 The Minister sought to overcome this difficulty by submitting that reg 2.10(1)(b) does not prescribe "the way for making … an application" for the purposes of s 45(2)(a) of the Migration Act. It is true that, as the Minister contended, reg 2.10(1), unlike reg 2.07(1), is not prefaced by the words "[f]or the purposes of sections 45 and 46 of the Act". But neither is reg 2.07(3) which, as the Minister accepted, prescribes the way for making an application within s 45(2), namely the completion of an approved form in accordance with the directions contained therein.
74 The test of whether a regulation prescribes "the way for making … an application in specified circumstances" within s 45(2)(a) of the Migration Act is whether the regulation, objectively viewed, answers the statutory description. It is not essential that the regulation itself include words that identify the source of the statutory power to make the regulation. A regulation may be a valid exercise of a particular power even if the source of the power is not identified, or is incorrectly identified: Ramos v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 329 (FC),at 333. Nor is it to the point that there is some more general power, which might support a regulation in the same or similar terms; cf. s 504(1)(e) of the Migration Act, which permits regulations to be made in relation to the lodging of documents with the Minister or any other person or body.
75 Regulation 2.10(1)(b), objectively viewed, prescribes the way in which an application for a visa is to be made, namely at an office of Immigration. The regulation applies in specified circumstances, namely where an application is to be made in Australia. It is therefore a regulation that prescribes the way for making an application in specified circumstances within the meaning of s 45(2)(a) of the Migration Act. If an application does not comply with reg 2.10(1)(b), the consequence is that the purported application is invalid: s 46(1)(b).
76 The Minister's contention that the lodging of the incomplete Form 866 constituted the making of an application for the purposes of reg 2.10(1)(b) cannot be sustained. As Hill J pointed out in Nader, at [53], the legislation uses the term "application" in two senses. Sometimes, as in s 54, the word refers to the application form itself. On other occasions, as in ss 45 and 46, it refers to the process of applying for a visa which includes, but is not limited to, the completion of a prescribed application form.
77 Regulation 2.10(1)(b) is concerned not merely with the lodging of an approved application form, but with the process of applying for a visa. The incomplete Form 866 lodged by Mr Li on 4 July 1997 plainly did not constitute a valid application for a protection visa. Nor did it constitute the making of an application for the purposes of reg 2.10(1)(b). There could be neither a valid application, nor the making of an application, until the information necessary to complete the Form 866 had been supplied. The effect of reg 2.10(1)(b) is that the additional information had to be supplied at an office of Immigration, not to the RRT. The same analysis applies in Kundu.
78 It is not necessary to consider whether the supply of a document that does not purport to be the statement foreshadowed in the incomplete Form 866 can constitute compliance with reg 2.10(1)(b). Nor is it necessary to consider in what precise circumstances information can be said to be provided to an office of Immigration. The submissions to the RRT were never intended for, nor received by, the Department or the Minister. They were plainly not provided to an office of Immigration as required by reg 2.10(1)(b).
79 Contrary to the Minister's submissions, this is not a case for the application of the maxim "lex non praecipit inutilia". There may be debate about the wisdom of a legislative scheme that places so much emphasis on adherence to formal requirements. But given the assumptions underlying the scheme, there is obvious utility in requiring all the elements going to make up a valid application to take place at an office of Immigration. In the absence of such a requirement, there is a risk of documents going astray and of decisions being made (or not being made) without all relevant information being placed before the decision maker. If an applicant can complete a prescribed form in stages (as the legislation has been construed to permit), there are advantages in ensuring, even on pain of rendering an application invalid, that all components of a valid application form are provided to an office of Immigration.
80 The remaining arguments advanced by the Minister can be dealt with more briefly. It can be accepted, for present purposes, that a decision of the Minister's delegate to reject an invalid application for a visa is subject to review by the RRT, notwithstanding that the delegate contravened s 47(3) of the Migration Act by making the decision. It can be accepted, for present purposes, that a decision of the Minister's delegate to reject an invalid application for a visa is subject to review by the RRT, not withstanding that the delegate contravened s 47(3) of the Migration Act by making the decision. It can also be accepted that this result comes about, at least on one view, because of s 69 of the Act. It is one thing, however, for a decision improperly made by a delegate to be saved from invalidity by s 69 so as to be subject to review by the RRT. It is another to conclude that the legislation evinces a policy that an incomplete application lodged with the Department should be taken as complying with reg 2.10(1)(b). It is difficult to see how s 69, whatever its scope, can affect the construction of reg 2.10(1)(b).
81 Similarly, it is difficult to see how s 415(1) of the Migration Act, can support a decision by the RRT on the merits, in circumstances where no valid application has ever been lodged. Section 415(1) empowers the RRT, for the purposes of the review of a RRT-reviewable decision, to exercise all the powers and discretions that are conferred by the person who made the decision. Yilmaz held that s 415(1) permitted the RRT to review, on the merits, a decision of the Minister's delegate where a valid application for a visa had been lodged, albeit after the date of the delegate's decision. Yilmaz did not consider whether the RRT had jurisdiction to review on the merits a decision of the Minister's delegate where no valid application for a protection visa had ever been lodged. Nor did Yilmaz consider whether reg 2.10(1)(b) would be satisfied if the information required to complete a Form 866 were supplied to the RRT, rather than to an office of Immigration.
82 It strains language to say that the powers which are conferred on the RRT for the purposes of the review of a RRT-reviewable decision include the power to receive essential components of the prescribed application form. Regulation 2.10(1)(b) requires an application to be made at an office of Immigration in Australia. That includes all essential components of the prescribed application form. Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.