MZYIE v Minister for Immigration
[2010] FMCA 994
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYIE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 994 |
| MIGRATION – Whether application for visa valid – whether delegate functus officio upon giving notification of decision – whether application out of time is invalid. |
| Acts Interpretation Act 1901, ss.25C, 36(1) Legislative Instruments Act 2003, s.13 Migration Act 1958 (Cth), ss.47, 48, 69, 412, 474, 494 Migration Regulations 1994, regs.2.07(3), 4.31 |
| Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 15 MacMillan Bloedel Ltd v Minister of Finance (1985) 60 BCLR 145 Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122 Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCACA 199 Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZGME v Minister for Immigration and Citizenship & Anor (2008) 168 FCR 487 VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 |
| Applicant: | MZYIE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 500 of 2010 & MLG 1343 of 2010 |
| Judgment of: | Turner FM |
| Hearing date: | 3 December 2010 |
| Date of Last Submission: | 3 December 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 17 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Hymans Solicitors |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application filed 9 April 2010 and amended application filed
5 May 2010 in matter MLG500 of 2010 are dismissed.
The application filed 28 September 2010 in matter MLG1343 of 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 500 of 2010 & MLG 1343 of 2010
| MZYIE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 27 August 2010, which held that:
“As the application for review (of the delegate) was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction in this matter” (Court Book (“CB”) 143).
The Court heard the application on 3 December 2010 when Mr Gilbert appeared for the applicant and Mr Knowles for the first respondent.
The delegate refused to grant the applicant a Protection (Class XA) visa, and the Department notified the applicant by letter dated, and posted on, 28 October 2009 (CB 38 - 45)(the “first notification”).
On 21 December 2009 the applicant applied to the Tribunal for a review of the delegate’s decision (CB 71 - 74). The Tribunal found that it did not have jurisdiction because the application for review was received by the Tribunal outside the mandatory time limit and therefore was not a valid application (CB 87).
On 20 May 2010 the Department purported to re-notify the applicant of the delegate’s decision (the “second notification”). The decision is identical to the decision dated 28 October 2009 (CB 45) except that it was re-dated 20 May 2010 (CB 102) and the applicant’s name was corrected in the penultimate paragraph; which correction is not relevant in this judicial review. Whether the decision with the second notification was a new decision is not determinative, as once the delegate gave the first notification she became functus officio (post).
The applicant re-applied to the Tribunal on 25 May 2010 (CB 113) for review of the delegate’s decision.
The Tribunal decided that the question of whether it had jurisdiction depended on whether the application lodged on 25 May 2010 (CB 124) was a valid application under s.412 of the Migration Act 1958 (the “Act”)? (CB 139.7)
The Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement (CB 139.8).
The grounds of the application for judicial review are set out in the Amended Application filed with the Court on 5 May 2010. At the hearing, the applicant relied on ground 1(a) only (Transcript “T” p.2, l.29) which is as follows:
(1)The decision of the Second Respondent (“the Tribunal”) was made without jurisdiction or was affected by jurisdictional error in that it was not in accordance with law.
(a)The Tribunal found that the applicant had applied to the first respondent (“the Minister”) for the grant of a protection visa but the applicant’s Forms 866B and 866C received by the Minister’s department on or about
22 October 2009 did not constitute a valid application for a protection visa because the Statutory Declarations in each form were not signed or witnessed. This was in breach of the following direction at the beginning of each form:“You must answer ALL questions. If any question is not applicable, write ‘N/A’. Failure to do so may lead to your application being considered invalid”.
and thus Regulation 2.07(3) of the Migration Regulations 1994 (the “Regulations”).
Submissions by Mr Gilbert for the applicant
Mr Gilbert conceded that the application to review the first notification was clearly out of time (T p.4, l.13 and p.22, l.43).
Mr Gilbert submitted that he had a secondary argument in relation to the second matter (MLG1343 of 2010) (T p.9, l.20) that if the application was invalid the applicant seeks a declaration that he is not statute barred by s.48 or s.48A of the Act from making a valid application for a protection visa (order three sought in Application MLC1343 of 2010).
As the Court holds (post) that the application was valid, the secondary argument is not available.
Mr Gilbert relies on s.69 of the Act which is as follows:
69Effect of compliance or non‑compliance
(1)Non‑compliance by the Minister with Subdivision AA or AB or section 494D 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.
Mr Gilbert argues that even if the Court holds that the second notification was not a fresh decision [and the Court so holds as the delegate was functus officio (post)], s.69 preserves the right of review in relation to the second matter, as it preserves the decision for review. He argues that if the second notification is in breach of subdivision AA or AB, whether because the delegate was functus officio, or because there should not have been any dealing with it, s.69(1) preserves it for review.
First, the Court finds no breach of s.494D. Also it is not alleged, or apparent that the Minister has not complied with subdivision AA or AB of Division 3. Section 69 therefore does not preserve the second notification of decision for review.
Mr Gilbert raised the issue of estoppel but “recognised that the weight of authority is against the applicant”, and did not seek to argue the issue (T p.18, l.10).
Was the application for a protection visa valid?
Regulation 2.07(3) provides that:
An applicant must complete an approved form in accordance with any directions on it.
Mr Gilbert argues that the effect of reg.2.07(3) is that an application is invalid if the approved form is not completed in accordance with any directions on it. He referred to the Notes at the bottom of the first column of the Declaration (CB 23) and submitted that those “directions” were not complied with.
Mr Gilbert argues that the application was invalid as the Statutory Declaration was not signed and dated (CB 23). Mr Knowles submits that the application is valid and relies on the decision in Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 where at [39] the Full Court referred to the decision in Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273 wherein Justice Katz followed Justice Hill’s decision in Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 at [4], and Justice Tamberlin in Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122 at [15]:
“in holding that substantial compliance was to be assessed by reference to the purpose of the form in eliciting the applicant's claim to be a refugee within the Convention and that the questions posed in the form were only guidelines to that end”.
The Full Court in Bal continued:
“Accordingly, so his Honour held, it was not necessary to be able to distil from the applicant's responses, answers to all questions on the form”.
At [40]:
“We agree with the approach taken to the notion of “substantial compliance” in the present context by Heerey J in Nie and Katz J in Shahabuddin, outlined above. (See too, Wu at 280 per R D Nicholson J; Minister for Immigration and Multicultural Affairs v A per Merkel J at [43], [44]; Li v Minister for Immigration and Multicultural Affairs [2000] FCA 421; BC200001550 (Heerey J) at [49])”.
The Full Court in Bal (supra) decided that there was “substantial compliance” in that case, as the applicant made it clear from his answers how he claimed to satisfy the Convention definition of refugee.
Mr Knowles relies also on the decision in SZGME v Minister for Immigration and Citizenship & Anor (2008) 168 FCR 487 where the Full Court decided at [79]:
In this context, we agree with the submission of the Minister that the question of substantial compliance is judged by reference to compliance with Form 866 and not by reference to the individual parts. As was said in Bal 189 ALR at 573-574 [39]-[40]:
In Shahabuddin the applicant gave more detail of the "political opinion" ground on which he relied, stating that he had been a member of the Bangladesh Freedom Party and adding that a "statement would be sent very shortly". Katz J followed Hill J in Nader at [4] and Tamberlin J in Myint at [15], in holding that substantial compliance was to be assessed by reference to the purpose of the form in eliciting the applicant’s claim to be a refugee within the Convention and that the questions posed in the form were only guidelines to that end. Accordingly, so his Honour held, it was not necessary to be able to distil from the applicant’s responses, answers to all questions on the form.
We agree with the approach taken to the notion of "substantial compliance" in the present context by Heerey J in Nie and Katz J in Shahabuddin, outlined above. (See too, Wu at 280 per RD Nicholson J; Minister for Immigration & Multicultural Affairs v A per Merkel J at [43], [44]; Li v Minister for Immigration & Multicultural Affairs [2000] FCA 421 (Heerey J) at [49].)
[emphasis added]
Mr Gilbert sought to distinguish SZGME but the findings as to “substantial compliance” are relevant in the current matter, as are the other decisions referred to by Mr Knowles on that issue.
The decision in Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 15 was referred to where Justice Kenny expressed “no definitive view” on whether s.25C of the Acts Interpretation Act 1901 is applicable to the notion of “substantial compliance” in the context of the failure to complete the entire migration form in that case.
Section 25C 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.
Section 13 of the Legislative Instruments Act 2003 makes that Act applicable to legislative instruments.
Based on the above decisions the Court finds that details of how the applicant claims to satisfy the Convention definition of refugee can be found in the forms, and that there was “substantial compliance” with the requirements of forms 866C (CB 1) and 866B (CB 17). The Statutory Declarations are included to confirm that the detail is true and correct and to provide other specified information and authorisations.
The Court finds that the application for the visa was a valid application. As a result, the applicant is barred by s.48A(1) from making a further application for a protection visa while in the migration zone.
The prescribed period
Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed period is set out in reg.4.31 of the Regulations commencing on the day on which the applicant is validly notified of the decision. The relevant prescribed period was 28 days after the day on which notice is received [s.412(1)(b) reg.4.31(2)(b)]. There is no provision for an extension of time. An application sent to the Tribunal by post or by fax is taken to be given to the Tribunal when it is received at a Registry of the Tribunal [reg.4.31(4)].
The first notification of decision was sent to the applicant by post on the day the decision was made (CB 40-45). Section 494B(4)(A) was complied with.
The applicant is taken to have received the notification seven working days after the date of the document [s.494C(4)(a)]. Seven working days after the date of the first notification [excluding 28 October 2009 (s.36(1) Acts Interpretation Act 1901)] was 6 November 2009. The applicant therefore has 28 days from 6 November 2009 to lodge his application for review with a Registry of the Tribunal. The parties agreed that the last date for making the application was 7 December 2009 (T p.4, l.7).
The application was received by the Melbourne Registry on
21 December 2009 (CB 71) and was therefore outside the prescribed period. As stated above the Tribunal has no power to extend the prescribed times. The application for review was therefore outside the prescribed period and was invalid. The Tribunal was therefore correct in deciding that it had no jurisdiction to hear the application (CB 143).
Whether delegate functus officio?
The next issue is whether the delegate was functus officio on giving the first notification? being the state of a Tribunal or administrative body which has discharged its duty or performed its functions so that nothing further remains to be done. “One who is “functus officio” is precluded from again considering the matter even if new arguments or evidence are presented”: MacMillan Bloedel Ltd v Minister of Finance (1985) 60 BCLR 145.
It was agreed that the first notification of decision was validly given, the Court finds that to be correct.
Was the second notification of decision valid?
The Court accepts the submission of Mr Knowles that the delegate was functus officio upon giving the first notification. She therefore had no jurisdiction to give the second notification. As the second notification was invalid, it was no notification at all (CB 96), and the applicant could not validly apply for a review of it.
The Court accepts the submission of Mr Knowles that once the Minister has refused to grant a visa, there is no requirement to consider the visa application [s.47(2)(b)].
The Court finds that the application for review of the first notification was outside the statutory time limit, and there is no jurisdiction for the Tribunal to extend the prescribed times.
The Court finds that as the delegate was functus officio upon giving the first notification, the second notification was given without jurisdiction and therefore was no notification at all. As such, it did not provide a right for the applicant to seek a review of it. The Tribunal was therefore correct in deciding it had no jurisdiction to hear the application for review.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The applications for judicial review are dismissed.
Even if the Court had found an error of law as alleged, the Court would refuse to grant relief as the applicant’s claims have no merit as his fears are not for a Convention reason but because he fears being harmed because he has provided information to law enforcement authorities in the United Kingdom (CB 45.1).
Where there is an independent and unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”. [21] Re Refugee Revue Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].
As stated by Justice Kirby J in SZBYR at [88 - 89]:
“In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case”.
Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCACA 199 at [10]:
“Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [90].
And at [12]:
As was said of the writ of mandamus in The King against Commonwealth Court of Conciliation and Arbitration ; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at [400]:
“the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld”.
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Turner FM
Date: 17 December 2010
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