Thayananthan v Minister for Immigration & Multicultural Affairs

Background 3 The first and second appellants are husband and wife and the remaining appellants are their children. The appellants are ethnic Tamils and nationals of Sri Lanka. The first appellant applied for a protection visa by lodging an application form dated 25 November 1996. It is not in issue that the form was lodged on that day. Applications were also made by the other appellants as members of a family unit which were dependent on the application of the first appellant. It is convenient, from this point, generally to treat the first appellant's application as if it is the only application in issue in the appeal. All the questions in the application form lodged by the first appellant which were designed to ascertain the basis of his claim to be a refugee and whether he was entitled to a protection visa, were answered with the phrase: "See statement to be forwarded". In a statutory declaration dated 5 February 1997 the first appellant claimed that in Sri Lanka he had been detained on several occasions and beaten by reason of his political opinion, real or imputed, because he had been approached for aid by members of the Liberation Tigers of Tamil Eelam ("LTTE"). Precisely when the declaration was received by the Department is not clear, but it is not in issue that its contents were before the primary decision maker, the Minister's delegate, and that it was received by the Department some time shortly after 6 February 1997. 4 On 13 June 1997 the delegate refused the first appellant's application for a protection visa. The appellants sought review of that decision by the Tribunal. On 6 January 1999 the Tribunal affirmed the decision of the delegate to refuse to grant the protection visa. 5 The primary judge rejected the argument now advanced on appeal that the first appellant's application for a protection visa was invalid and that, as a consequence, the decision of the Tribunal was also invalid as the Tribunal had no jurisdiction to make it. The primary judge concluded that the issue had been determined by the Full Court in Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 ("Yilmaz") and he considered himself bound to find that the first appellant's application for a protection visa was valid. As will be apparent shortly, the notion of an application being required to be a valid application derives from the language of the Act: see, in particular, s 47(3).

The Act and Regulations 6 A number of provisions in the Act and in the Migration Regulations 1994 (Cth) ("the Regulations") have a bearing on the issue raised in the appeal. At the relevant time, they were in the following terms. 7 Section 40(1) dealt with circumstances for granting visas, and relevantly provided: "The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances." 8 Section 45 of the Act relevantly provided: "(1) Subject to this Act and the regulations, a non‑citizen who wants a visa must apply for a visa of a particular class. (2) Without limiting subsection (1), the regulations may prescribe the way for making: (a) an application in specified circumstances; or (b) an application for a visa of a specified class; or (c) an application in specified circumstances for a visa of a specified class. …" 9 Section 46(1) relevantly provided: "(1) Subject to subsection (2), an application for a visa is valid if, and only if: (a) it is for a visa of a class specified in the application; and (b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3); and …" It is to be noted that this provision created the notion of a valid application. 10 Section 47(1) of the Act provided that: "The Minister is to consider a valid application for a visa." By s 47(3) of the Act: "… the Minister is not to consider an application that is not a valid application." It can be seen that the obligations of the Minister depended on whether the application was valid. 11 Section 65, which is in subdivision AC of Division 3 of Part 2, relevantly provided: "(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. …" 12 Section 69 provided that: "(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. …" Sections 44 to 46 were in subdivision AA but, as just noted, s 65 was not. 13 Regulation 2.03 in Part 2 of the Regulations provided: "(1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; or (b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. …" 14 Regulation 2.04 provided: "For the purposes of section 40 of the Act, and subject to these 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 Schedule 2 are the circumstances set out in that Part of Schedule 2." 15 Regulation 2.07 provided: "(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1: (a) the approved form (if any) to be completed by an applicant; (b) the visa fee (if any) payable on an application; (c) other matters relating to the application. … (3) An applicant must complete an approved form in accordance with any directions on it." 16 Schedule 2 to the Regulations specified criteria for a range of visas including subclass 866 - protection visas, and prescribed, for a protection visa, primary criteria to be satisfied at time of application (cl 866.211): "The applicant claims to be a person to whom Australia has protection obligations under the refugees convention and: (a) Makes specific claims under the refugees convention; or (b) Claims to be a member of the same family unit as a person who: (i) Has made specific claims under the refugees convention; and (ii) Is an applicant for a protection (Class XA) visa." and primary criteria to be satisfied at time of decision, which included that (cl 866.221): "The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention." 17 Section 411 of the Act referred to the type of decisions which were reviewable by the Tribunal. They included in s 411(1)(c) "a decision to refuse to grant a protection visa". Section 415 of the Act, dealing with the powers of the Tribunal, provided: "(1) The Tribunal may, for the purposes of the review of an RRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. …"

The issues on appeal 18 The appellants invite the Court to decide two matters. If the first appellant's application for a protection visa was an invalid application when it was first lodged with the Department whether, having regard to the regulatory regime which governed the lodgement and consideration of visa applications, it was capable of becoming a valid application by reason of the supplementary information later furnished to the Department. The second was that assuming it did not become a valid application, whether there could have been a decision by the Minister's delegate enlivening the Tribunal's powers of review and the related question whether any decision of the Tribunal in respect of an invalid application was a decision the Tribunal had jurisdiction to make.

The decision of the Full Court in Yilmaz 19 The combined operation of the legislative provisions referred to earlier was considered by a Full Court in Yilmaz, in a similar, although not identical, factual context. In that matter, an application for a protection visa was lodged with the Department but the following critical questions in the application form were left unanswered, except for the phrase "statement to follow":

• why did you leave that country?
• what do you fear may happen to you if you go back to that country?
• who do you think may harm/mistreat you if you go back?
• why do you think they will harm/mistreat you if you go back?
• do you think the authorities of that country can and will protect you if you go back? If not, why not? 20 In that matter a statement, as foreshadowed in the original application, was forwarded to the Department but it was not received until five days after a decision had been made by the Minister's delegate to refuse Mr Yilmaz's application for a protection visa. However, Mr Yilmaz sought review of the delegate's decision by the Tribunal, which considered the application and, in doing so, had the statement that Mr Yilmaz had provided. The Tribunal affirmed the decision of the delegate not to grant a protection visa to Mr Yilmaz. Mr Yilmaz then unsuccessfully sought judicial review of the Tribunal's decision in this Court. On appeal, a Full Court considered the consequences of Mr Yilmaz's application having been made and considered by the delegate and the Tribunal in the way it was. 21 Each member of the Full Court accepted Mr Yilmaz's application, as initially submitted, was not a valid application. However the members of the Full Court were divided on the question of whether the invalid application was capable of later becoming a valid application. 22 Spender J indicated that an application of the type submitted by Mr Yilmaz was "inchoate". His Honour continued (at pars 19 to 21): "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." 23 Gyles J also did not accept that an application must be complete when lodged, and rejected the suggestion that any deficiencies cannot later be remedied. His Honour indicated that might be because the provision of a statement foreshadowed in the "application" had the effect of completing the application or, alternatively, curing a defect. His Honour said (at par 72): "…it seems to me that the words in Sch 2 '[c]riteria to be satisfied at the time of application' (which are the high point of the appellant's argument on this issue) refer generally to the time of application as contrasted with the time of decision, rather than referring to a particular date upon which the paper is first lodged. …where an application is expressed to be incomplete, in my opinion, 'time of application' would certainly comprehend the completion of it." 24 Marshall J took a different view and did not consider it possible that an incomplete, and therefore invalid, application could become a valid application if the requisite information was later supplied. His Honour quoted (at par 51), with approval, the following conclusion of Heerey J in Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421 (at pars 49 to 51): "The answer I think is to be found in the special importance which this legislative scheme attaches to the initial application. When lodged, the completed form must contain all the information required. In the case of a protection visa application for example, the completed form must set out the Convention claims. Otherwise there is simply not an application at all. The detailed process laid down by the Act and Regulations has not validly commenced. In that setting the legislative drafters might understandably have turned their minds to the possibility of an argument that in the absence of some specific provision the whole of the applicant's case had to be included in the application form when lodged. So, consistent with the policy of meticulously spelling out every step in the process and thus avoiding argument and uncertainty, the scheme says in effect that applicants must, at the time of lodging the application, put their case in the way the form requires, but they are able to add to it. It seems unlikely that Parliament intended that, notwithstanding the critical importance of the initial application form in the legislative scheme, ss 54 and 55 were to have the effect that the nullity of an invalid application form can be fixed up by the subsequent supply of information, even after the Minister's decision. There is in my opinion no power in the Minister to treat a non‑complying 'application' as remedied by some subsequent document. No such power is conferred by the Act on the person who makes the RRT‑reviewable decision. Therefore there is no such power for the RRT to exercise: s 415(1)." The decision of Heerey J was upheld on appeal: Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486, albeit on a different ground. The information supplied after the initial form was lodged was supplied to the Tribunal and not to an officer of Immigration as required by reg 2.10(1)(b). The Full Court analysed Yilmaz, implicitly accepting the reasoning of the majority but distinguished it on the basis that in Yilmaz the later information was supplied to the Department of Immigration. 25 The facts of Yilmaz required the Full Court also to consider the consequences of the Minister's delegate purporting to make a decision concerning an invalid application in the context of considering whether it was a reviewable decision for the purposes of s 411. 26 Gyles J, with whom Spender J agreed, appeared to accept (at pars 81‑84) that the decision of the Minister's delegate purporting to reject Mr Yilmaz's application was a valid decision, although it involved a contravention of s 47, because the decision was rendered valid by the operation of s 69(1). His Honour acknowledged that the delegate's decision involved an exercise of the power conferred by s 65, a section not expressly covered by the operation of s 69(1). However, Gyles J concluded that s 65(1) had not been breached because the opening words of that subsection, "after considering a valid application for a visa" did not create a precondition for the exercise of the power, but were, instead, an assumption on which the section proceeded. 27 Marshall J concluded there was no power to make a decision to grant or refuse to grant a visa other than after considering a valid application. No decision could be made by the Minister's delegate in respect of an invalid application. Marshall J held that any purported decision made under s 65 in respect of such an application would not be saved by s 69. 28 As to whether the Tribunal has jurisdiction to deal, on an alternative basis, with a purported decision notwithstanding that it might be invalid, Gyles J with whom Spender J again agreed, held that an invalid decision is nonetheless a "decision" for the purposes of ss 411 and 412 of the Act and thus a decision the Tribunal has jurisdiction to review. Such an approach was consistent with an established and settled line of authority concerning the jurisdiction of administrative tribunals generally; see: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213. 29 Marshall J again adopted a different view. His Honour held (at par 58): "… it is difficult to perceive something that is a nullity and in reality not a decision at all as qualifying as a decision for the purposes of s 411(1)(c) of the Act." 30 His Honour expressed the view that earlier decisions such as Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd have no bearing on the question of whether the Tribunal had jurisdiction in the present matter because those decisions involved review within a different statutory context, one that did not include a provision akin to s 65 which, in Marshall J's view, made consideration of a valid application an express condition of making a decision to grant or refuse to grant a visa.

Consideration of the appeal 31 It is necessary to emphasise, at the outset, the importance of Full Courts of this Court as intermediate courts of appeal adopting a consistent approach when interpreting legislation. It was a matter recently discussed by a Full Court in Telstra Corporation Ltd v Treloar (2000) 102 FCR 595. Branson and Finkelstein JJ said (at pars 26 to 28): "Speaking generally, appellate courts accept that they should act with caution before reviewing an earlier decision: see, for example, Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99-101. Courts have said it may be done if the earlier decision is 'manifestly wrong' or 'clearly erroneous', or if 'strong reasons' are shown, or if the 'maintenance [of the earlier authority] is contrary to the public interest': see the examples given by Aickin J in Queensland v Commonwealth (1977) 139 CLR 585 at 620ff; see also Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560. But, apart from suggesting caution, the cases provide little real guidance as to the circumstances in which it will be appropriate to review an earlier decision. The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter. The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court (contrast the position of the High Court, as to which see Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1) will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense." 32 In this matter the first issue we must address arises from the appellants' submission that the Tribunal did not have jurisdiction to review what was contended to be a decision to refuse to grant a protection visa which was not authorised by the Act. While the facts of Yilmaz were different, the analysis of Spender and Gyles JJ and the conclusions reached and referred to in pars 26 and 28 above are equally applicable to the circumstances arising in the present case. Notwithstanding the expression of views to the contrary, Marshall J dissenting in Yilmaz and Heerey J in Li Wen Han, we do not consider that the construction of the legislation adopted by Spender and Gyles JJ is patently incorrect, nor does it produce in the present circumstances, what would be regarded as consequences unintended or irrational having regard to the reasoning in Yilmaz. 33 This conclusion resolves the true issue raised in this appeal, being an appeal from an application for judicial review of a decision of the Tribunal raising the ground that the Tribunal purported to make a decision it did not have jurisdiction to make: s 476(1)(b) or made a decision not authorised by the Act: s 476(1)(c). However to the extent that the parties invited a determination of whether the decision of the delegate was valid, the ultimate answer is provided by the reasoning of Spender and Gyles JJ referred to in pars 22 and 23 above. While the reasoning of Spender and Gyles JJ differed in some respects, at least as to the way it was expressed, the conclusion of both members of the majority was that the invalid application could be rendered valid by supplementation and the application could become a valid application when it was so supplemented. We see no reason to depart from the conclusion reached by Spender and Gyles JJ. In the present case, the application of the first appellant became a valid application on the receipt by the Department of the statutory declaration of 5 February 1997. 34 We dismiss the appeal and order the appellants to pay the respondent's costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Respondent: Mr R R S Tracey QC with Mr W Mosley

Solicitor for the Respondent: Australian Government Solicitor