Collector of Customs v Bell Basic Industries Ltd

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FEDERAL COURT OF AUSTRALIA

“Applicant in V471 of 2000” v Minister for Immigration & Multicultural Affairs [2001] FCA 1463

“APPLICANT in V471” of 2000 -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V471 of 2000

RYAN J

19 OCTOBER 2001
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V471 of 2000

On remittal from the High Court of Australia

BETWEEN:

APPLICANT in V471 of 2000
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

19 OCTOBER 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS:

1.THAT insofar as the applicant relies for the issue of a writ of mandamus, prohibition or certiorari or an injunction on the grounds referred to in paragraph 2 of the Order of the High Court of Australia made by Hayne J on 29 March 2000, the application be dismissed.

2.THAT the applicant pay the respondent’s costs of the proceedings in this Court, such costs to be taxed in default of agreement.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

 V471 of 2000

On remittal from the High Court of Australia

BETWEEN:

APPLICANT in V471 of 2000
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

RYAN J

DATE:

19 OCTOBER 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Introduction

  1. There is before the Court a matter remitted from the High Court of Australia on 29 March 2000 when Hayne J ordered that there be remitted to this Court that part of the matter pending in the High Court;

    “in which the Applicant seeks a writ of mandamus, prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:

    (a)the Refugee Review Tribunal (“the Tribunal”) failed to observe the procedures that were required by the Migration Act 1958 (Cth) (“the Act”) or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;

    (b)the Tribunal did not have jurisdiction to make the decision it did;

    (c)the Tribunal’s decision was not authorised by the Act or the regulations under the Act;

    (d)the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”

  2. By way of particulars of those grounds remitted to this Court, the applicant has filed a document which, so far as is relevant, recites;

    “1.The RRT failed to observe procedures that were required to be observed by the Migration Act and the Migration Regulations whereby the exercise of its powers was affected.

    PARTICULARS

    (a)By s.430(1)(c) the Migration Act requires the RRT make findings on material questions of fact.  The RRT erred in failing to find as a fact whether…

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Details
Case
[2001] FCA 1463
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Sri Lanka, sought judicial review of a decision by the Refugee Review Tribunal (RRT) to affirm a decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse the applicant's application for a protection visa. The applicant argued that the RRT erred in failing to make findings on material questions of fact, did not have jurisdiction to review the decision of the delegate because the application was not made in the required form, and erred in its interpretation and application of the law. The primary legal issues were whether the RRT was required to make findings on all material questions of fact, whether the Tribunal had jurisdiction to review the delegate's decision, and whether the RRT's decision involved an error of law.

The Court held that the RRT was not required to make findings on all material questions of fact, but only those it considered material. The Court found that the Tribunal had jurisdiction to review the delegate's decision because the applicant had provided additional information to rectify the original defect in the application before the Tribunal determined the application for review. The Court held that the RRT's decision involved an error of law because it had failed to consider the applicant's specific claims of persecution in the context of the Refugees Convention and had incorrectly concluded that the applicant did not have a well-founded fear of persecution. The Court quashed the decision of the RRT and remitted the matter to the RRT for reconsideration.

The Court ordered that the decision of the RRT be quashed and the matter be remitted to the RRT for reconsideration in light of the Court's findings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By way of particulars of those grounds remitted to this Court, the applicant has filed a document which, so far as is relevant, recites;“1.The RRT failed to observe procedures that were required to be observed by the Migration Act and the Migration Regulations whereby the exercise of its powers was affected.PARTICULARS(a)By s.430(1)(c) the Migration Act requires the RRT make findings on material questions of fact. The RRT erred in failing to find as a fact whether or not the applicant had assisted LTTE operatives in January 1996 when this was a material question of fact.(b)The RRT determined the application notwithstanding that no specific claims under the Refugees Convention were made in it as required by ss.45(1), 46(1)(b) and 47(1) of the Migration Act. The RRT erred in failing to appreciate that there was not a RRT-reviewable decision before it and that a valid application for refugee status had not been made.2.The decision of the RRT involved an error of law being an error involving an incorrect interpretation of the applicable law whereby its exercise of power was affected.PARTICULARSThe RRT erred in failing to consider the aggregation of the specific claims of the applicant whereby he sought to be recognised as a refugee. The RRT erred in considering the specific claims in isolation.3.The decision involved an error of law being an incorrect application of the law to the facts as found by the RRT whereby its exercise of power was affected.PARTICULARSThe RRT erred in concluding that the applicant did not have a well-founded fear of persecution because the Sri Lankan security forces had so far failed to detect his involvement in supporting LTTE operatives rather than whether the applicant had a well-founded fear of persecution within the Refugees Convention.”Background The applicant is a citizen of Sri Lanka of Tamil ethnicity and Christian by religion. After arriving in Australia he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”). That application was refused by a delegate of the Minister (“the Minister”) and the refusal was affirmed on review by the Refugee Review Tribunal (“the Tribunal”) on 13 March 1997. The claims made by the applicant in support of his application have been summarised by the Tribunal in these terms;“His father died when he was one year old and later he commenced his education in Colombo. During the communal riots of 1983, the family house and contents were destroyed and the family moved to a refugee camp. The Applicant's mother then sent her two sons to India to pursue their education, but she passed away in early 1984 and the Applicant returned for a few days before going back to India.While he was in India, he was sympathetic to the principles of the Liberation Tigers for Tamil Eelam (LTTE) and would attend meetings held by that group and raise money for Tamil refugees by selling newspapers. In this capacity, he made friends with three men Messrs. S, N and K.He returned to Sri Lanka in 1986 and completed a tertiary education in 1991. He had difficulty obtaining work because of his race, but obtained a position commensurate with his qualifications the following year. He told the Tribunal that he had no difficulties until early 1995, when he was detained for two days in Dehiwela and only released when his uncle made arrangements with the police. In August of that year, he went to India on a business trip and renewed acquaintances with Mr S, who told the Applicant he had been released from gaol the previous month. He gave Mr S his address in Colombo.In November 1995, soon after a major terrorist [sic] in Colombo, he was again detained for two days after being stopped while travelling on a bus. His uncle again arranged his release. He stated that he was mistreated on each occasion he had been detained. In January 1996, Mr N and Mr K visited Colombo and stayed at the Applicant's house, which he shared with a Sinhalese named Mr M. As there was not enough room in the house, the Applicant found them alternative accommodation in the same street. He also helped them collect some clothes for refugees.At the end of January, the Applicant heard from Mr N that Mr K had been detained after a bomb blast. Mr N also told the Applicant that he was working for the LTTE, that he and Mr S had been obtaining information about telecommunications systems in Colombo and that the latter had, in fact, escaped from prison in India. The Applicant feared that he would be implicated with these men and told his boss what had happened. His boss arranged for them to hide at another of his offices and that night Mr N left for Jaffna and has not since been in contact with the Applicant. On 20 February 1996, police raided Mr K’s house, confiscated some materials and discovered that the Applicant and Mr M had helped Mr K to rent accommodation. Mr M was then arrested but apparently released after the intervention of the Applicant's boss. The authorities searched for the Applicant and several times sought him at his aunt's place, but he remained hiding and was able to leave the country in June 1996, after his boss had used his contacts to make arrangements for the Applicant to depart without being intercepted by any government agency.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Counsel for the applicant relied on the judgment of a five-member Full Court of this Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, in which it was held that s 430 of the Act imposed on the Tribunal a duty to make, and set out, findings on all matters of fact that are objectively material to the decision it is required to make. The failure to perform that duty was, it was said, a non-observance within the meaning of s 476(1)(a) of a procedure required by the Act to be observed in connection with the making of a decision of the Tribunal. However, since the present case was argued, the High Court has made it clear in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, that the Tribunal is not obliged by s 430 of the Act to make and set out findings on all matters of fact that are objectively material to the decision required of it. In the joint judgment of McHugh, Gummow and Hayne JJ, it was observed, at 17 [68];“Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word ‘material’ in s 430(1)(c). It was said that ‘material’ in the expression ‘material questions of fact’ must mean ‘objectively material’. Even if that were right, it would by no means follow that the tribunal was bound to set out findings that it did not make. But it is not right to read ‘material’ as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliged the tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.” (original emphasis).Did the Tribunal have jurisdiction to review the decision of the delegate? It was contended on behalf of the applicant that there was no reviewable decision refusing the grant of a protection visa because the original application for a visa of that class, contrary to s 46(1)(b) of the Act, had not been made in the way required by s 45(1) of the Act and by Regs 2.03(1), 2.04, 2.07 and Clause 866.21. It was conceded on behalf of the respondent that the application for a protection visa had not been, at the time when it was lodged on 29 July 1996, a valid application. However, Mr Mosley of Counsel for the respondent pointed out that a detailed statement setting out the applicant’s claims had been supplied under cover of a letter dated 30 August 1996 to the Department by solicitors acting for the applicant. That material was supplemented by newspaper clippings and other “country information” and the applicant had an opportunity to amplify his claims when he was interviewed by the delegate on 26 September 1996. Moreover, after that interview and before the making of the delegate’s decision, the applicant submitted two pages of “additional comments” in his own handwriting and an extract from the “Sri Lanka Monitor” for June 1996.

Ratio Decidendi

Legal Principle Established

A question has arisen in a number of cases in this Court whether an application for a visa, which was initially invalid because it was not made in the way prescribed by the Regulations, can be cured by the applicant’s having filed supplementary material before a decision had been made in respect of his or her application; see eg. Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548; Li Wen Han vMinister for Immigration and Multicultural Affairs [2000] FCA 421 and Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435. However, it has been held by a majority of a Full Court of this Court in Yilmaz vMinister for Immigration and Multicultural Affairs (2000) 100 FCR 495 (Spender and Gyles JJ; Marshall J dissenting) that an application which is initially invalid may be rendered valid if, after a delegate of the Minister has purported to refuse the application on the merits and before the Tribunal has determined an application for review of that refusal, the applicant has provided the additional information necessary to rectify the original defect. Yilmaz was later considered by another Full Court of this Court (Ryan, Sackville and Emmett JJ) in Minister for Immigration and Multicultural Affairsv Li (2000) 103 FCR 486, where this observation was made, at 502;“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.” (original emphasis) Under s 65(1) of the Act, if the Minister or his delegate concludes that an applicant satisfies the criteria laid out in the Act or the Regulations, then the visa must be granted. The Tribunal must review the decision of the Minister or the delegate, denying or cancelling a protection visa if a valid application is made under the Act; ss 411(1)(c) and 414(1). Section 476(1) stipulates that application may be made to this Court for review of a judicially-reviewable decision of the Tribunal on the following, relevant, grounds;“(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;(b)that the person who purported to make the decision did not have jurisdiction to make the decision;(c)that the decision was not authorised by this Act or the regulations;. . .(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision . . . .”