SZANA v Minister for Immigration

[2003] FMCA 350

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZANA v MINISTER FOR IMMIGRATION [2003] FMCA 350

MIGRATION – Review of departmental decision – refusal to accept a fresh protection visa application – whether original visa application was valid – review of Refugee Review Tribunal decision – refusal of a protection visa – whether RRT had jurisdiction to entertain a second review application - review of Migration review Tribunal decision – refusal of a bridging visa – whether application to the MRT made within time – no reviewable error found.

Acts Interpretation Act 1901 (Cth), s.25C
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.29, 36, 45, 47, 48A, 48B, 261D, 261F, 417, 475A, 476, 483A

Migration Regulations

Bal v Minister for Immigration (2002) 189 ALR 566
Minister for Immigration v Li (2000) 103 FCR 486
Nader v Minister for Immigration (2000) 101 FCR 352
NAQQ v Minister for Immigration [2003] FCA 607
Wu v Minister for Immigration (1996) 64 FCR 245
Yilmaz v Minister for Immigration (2000) 100 FCR 495

Applicant: SZANA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ737 of 2003

Delivered on: 18 August 2003

Delivered at: Sydney

Hearing date: 18 August 2003

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ737 of 2003

SZANA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me for ex tempore judgment, an application filed on 11 July 2003. The application is made under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (“the Migration Act”). This Court has jurisdiction pursuant to s.483A of the Migration Act. An earlier application purports to seek review of a decision notified to the applicant on 28 April 2003. That appears not to have been filed and I am told that there was no such decision. A second application seeking to review decisions notified on 4 April 2003 and 31 March 2003 had been filed on 2 May 2003, but when the matter came before me on 4 July 2003, I adjourned the hearing of the matter in order to permit the applicant to file an amended application and written submissions. The amended application filed on 11 July 2003 seeks to review a decision notified to the applicant on 4 July 2003. The specific decision is not otherwise identified. First, the applicant claims that he has no criminal history in Australia; secondly, he wishes to appeal against the decision; thirdly, he wishes to renew his visa application for a protection visa; fourthly, he seeks to be released from immigration detention; and, lastly, he asserts that his original application for a protection visa was incomplete because of the absence of claims in that application.

2. The applicant asserts that he has been incorrectly barred by s.48A of the Migration Act from making a second application for a protection visa. The applicant’s grounds are set out in the amended application. These are, in effect, that the applicant is a genuine refugee, that he was unable to make a proper application for a protection visa on his first attempt, due to language difficulties and lack of misunderstanding or assistance, and that his original protection visa application was invalid, and should not have been acted upon.

3. The applicant relies upon his amended application and also upon several sets of written submissions filed on 2 May 2003, 9 May 2003 and also two sets of written submissions filed in court today.  At the outset of the proceedings the applicant sought an adjournment of the hearing of the matter in order to obtain legal representation.  I refused that application on the basis that the applicant had had sufficient time to make arrangements for such legal representation as he may wish.

4. The background circumstances in this matter are somewhat complex and have only recently become more clear.  The general background is set out in paragraphs 2 to 20 of the respondent’s written submissions filed on 1 July 2003 and in paragraphs 3 to 18 of further written submissions prepared on behalf of the respondent Minister and filed in court this morning.  I accept the following statement of background information as accurate:

   The applicant is a citizen of Turkey who entered Australia on 20 October 1987.

   On 1 July 1997, the applicant lodged parts B and C of an application for a protection visa.

   On 10 July 1997, the applicant sent to the Department a document containing outlining his claims for protection under the Convention.

   On the same day, the application was refused by a delegate.

   The Refugee Review Tribunal (“the RRT”) affirmed the delegate’s decision to refuse the application on 22 October 1998.

   On 7 April 1999, Her Honour Mathews J dismissed an application for judicial review.

   On 5 May 1999, the applicant applied to the Minister for a more favourable decision under s.417 of the Migration Act or permission to make a fresh application under s.48B.

   On 10 August 1999, the applicant was notified that the request in respect of s.48B would not be referred to the Minister, in accordance with the Minister’s guidelines.

   On 19 November 1999, the applicant was notified that his request in respect of s.417 had been referred to the Minister but that the Minister had decided not to consider exercising his power in this case.

   In or about mid-December 1999, the applicant’s bridging visa ceased to be in effect but he continued to remain in Australia.

   The applicant was detained at Villawood Detention Centre on 28 February 2003.

   On 17 March 2003, the applicant applied for a bridging visa.  This application was refused by a delegate on the following day.

   On 21 March 2003, the applicant sought permission to make a second protection visa application. By letter dated the same day, an officer of the Department advised the applicant that he did not fall within the Minister’s guidelines and that his further request under s.48B would not be referred to the Minister.

   Also on the same day, the applicant sent an application for review to the Migration Review Tribunal (“the MRT”).  The application was deficient in various respects.  It identified the subclass of the visa for which he had applied as a bridging visa (for which he had recently been refused) but indicated that the decision was dated 14 May 1999.  The application attached a submission dated 14 January 1998 which had apparently been prepared for his original protection visa application.  The application was received by the MRT on 25 March 2003.  Following a conversation with the applicant, on 25 March 2003, the MRT sent the form to the RRT believing it had been sent to them in error.  Subsequently, the RRT having received applications itself (see below) the application to the MRT was returned to it with documents concerning the bridging visa application (which had been sent to the RRT).

   On 26 March 2003 and again on 31 March 2003, the applicant lodged applications directly with the RRT.

   By decision dated 2 April 2003 and sent by letter dated 4 April 2003, the MRT advised that the application to review the bridging visa decision had been made out of time.

   By decision dated 14 April 2003 and handed down on 1 May 2003, the RRT concluded that it did not have jurisdiction to consider the application.  It considered that the applicant was not the subject of any RRT-reviewable decisions to which the applications could validly apply.

   On 2 May 2003, the applicant commenced the present proceedings which were said to concern decisions notified to the applicant on 4 April 2003 and 31 March 2003 [this has since been amended to identify a decision notified on 4 July 2003].  The application appears to seek:

   a)permission to renew his application for a protection visa (claim 3); and

   b)release from detention.

   On 20 May 2003, the applicant made an application for an extension of time to file an appeal against the judgment of Mathews J made on 7 April 1999.  That application was refused on 10 June 2003: NAQQ v Minister for Immigration [2003] FCA 607.

5. In addition, Mr Lloyd, for the respondent Minister, read an affidavit by his instructing solicitor, Ms Hanstein, which also explains the background circumstances.  Further, I accepted two documents as exhibits from the applicant, which provide further explanation.  They were a letter to the applicant from his then solicitors, dated 16 July 2003 (exhibit A1).  The applicant waived legal professional privilege in that document.  The other document was a letter from the applicant to the Minister's Department dated 28 July 2003. 

6. Briefly, what has happened in this matter is this:  the applicant made an application for a protection visa on 1 July 1997.  At that time, the form of application completed by the applicant was only partially completed.  In particular, the applicant failed to set out in the application his claims of persecution.  However, on 10 July 1997 the applicant sent to the Department a document in the Turkish language setting out his protection claims.  That document was, apparently co-incidentally, received on the same day that the Minister's delegate rejected the protection visa application.  That decision of the delegate appears on page 27 of the court book. 

7. It is apparent from a reading of that decision record that the delegate did not have before him the document in the Turkish language setting out the applicant's claims of persecution.  I note in particular that the decision record records that no claims of persecution were advanced by the applicant.  Nevertheless, the applicant's claims were received by the Department on that day.  Subsequently, the RRT dealt with an application to review the decision of the delegate on 22 October 1998.  The applicant did not attend a hearing before the RRT despite an invitation to do so.  He did make written submissions.  The RRT rejected the applicant's claims and affirmed the decision of the delegate.

8. The applicant sought judicial review of that decision of the RRT and that application was dismissed with costs by the Federal Court on 7 April 1999.  An application for an extension of time to appeal to the Full Federal Court against that decision has been refused.  It is not open to me to review the decision of the RRT made in 1998, given that that decision has already been reviewed by the Federal Court and the review application has been dismissed. 

9. More recently, the applicant sought to make a second protection visa application. The Department refused to accept the fresh protection visa application in reliance upon s.48A of the Migration Act.

10. The applicant contends that that decision of the Minister (or his delegate) to refuse to allow a fresh protection visa application is wrong in law because his first protection visa application was not a valid application.  The applicant sought a review by the RRT of the delegate's decision and that was dealt with by the RRT on 14 April 2003.  The decision of the RRT was that it did not have jurisdiction to consider the application.  That decision by the RRT appears to be correct.  Accordingly, there is no basis on which I could disturb that decision of the RRT. 

11. In addition, the applicant was placed in immigration detention earlier this year.  He sought a bridging visa which was refused on 18 March 2003 on the basis that he did not satisfy the criteria for the grant of a bridging visa.  Briefly, the delegate decided that the applicant could not be granted a bridging visa because there was no outstanding application for a substantive visa and the applicant had not made (and was not making) acceptable arrangements to leave Australia.  The applicant applied to the MRT for a review of that decision. However, he did not apply in time.  On 2 April 2003, the MRT decided that, because the review application was made out of time, the MRT could not deal with it.  That decision also appears to be correct. 

12. In so far as the present application before me seeks to re-agitate the applicant's claims to a protection visa, I have no relevant jurisdiction.  Those arguments go to the merits of the original decision that was made to reject his protection visa application.

13. To the extent that the present application seeks to challenge the continuing detention of the applicant, I find that the detention of the applicant is lawful under the Migration Act. The applicant is detained on the basis that he is an unlawful non-citizen and that he should be detained while his status is finally determined and pending removal from Australia. The applicant is pursuing these present proceedings before me to re-agitate, among other things, his entitlement to have a protection visa application considered. It is only when that is resolved that the removal of the applicant from Australia becomes imperative.

14. The applicant has sought and been denied a bridging visa in order to secure his release from detention, but it appears on the material before me that that decision was properly made.  The applicant did not satisfy the criteria for the grant of a bridging visa.  In addition, the review application made to the MRT was not made within the statutory time limit and the decision by the MRT to refuse that application was correct. 

15. The only remaining issue before me is whether the applicant is barred by s.48A of the Migration Act from lodging a second visa application. The relevant decision is the decision of the delegate (and/or the Minister) to refuse to entertain a further protection visa application.

16. The second decision of the RRT on 14 April 2003 notes that on 5 May 1999, the applicant applied to the Minister requesting that he exercise his public interest power under s.48B of the Migration Act to determine that s. 48A does not apply and to permit a further application for a protection visa. The request was assessed by an officer of the Ministerial Interventions Unit as not meeting the ministerial guidelines for the exercise of the s.48B power. The request was accordingly not referred to the Minister for consideration under s.48B of the Act. However, I have been told by Mr Lloyd (and I accept) that a request under s.417 of the Migration Act was referred to the Minister, who decided not to intervene (or to consider doing so). A further request to be allowed to make a second protection visa application was rejected by a delegate on 21 March 2003.

17. I cannot review a decision of the Minister under s.417 of the Migration Act or s.48B (s.476(2)). I find, however, that at two stages in that process, (and most recently on 21 March 2003) a decision was made by a departmental officer that a fresh application for a protection visa should not be entertained. I conclude that it is that decision which I am presently called upon to review. For the purposes of these proceedings I find that I have jurisdiction to review that decision, but that no relief can be granted if the first protection visa application was valid. The outcome of the application, insofar as it bears upon that decision, depends upon a determination on the issue of whether the original protection visa application was a valid one. These issues are set out in paragraphs 19 and 20 of Mr Lloyd's further written submissions. I accept the following submissions and adopt them for the purposes of this judgment:

    a)Subject to the Migration Act, the Minister has power to grant visas to non-citizen to permit them to travel to and enter Australia and/or to remain in Australia: s.29;

    b)there is a class of visa known as protection visa: s.36;

    c)the regulations may prescribe the way for making an application for a visa: s.45;

    d)generally, an application for a visa is valid if, and only if, it is for a visa of a class specified in the application and it is made in the way required s.45: s.46;

    e)the Minister must not consider an application which is not valid: s.47;

    f)for the purposes of ss.45 and 46 of the Migration Act, if an application is required for a particular class of visa, the following matters are set out in Schedule 1 of the regulations: (a) the approved form; (b) the visa application charge; and (c) other matters relating to the application: reg 2.07;

    g)a criterion for the grant of a protection visa is that, at the time of making an application, the applicant must claim to be a person to whom Australia has protection obligations and make specific claims under the Convention: Reg 866.21;

    h)if a person, as in the present case, lodges the forms to apply for a protection visa but does not make claims, indicating that claims will follow, the application is not validly made at that time; it is inchoate:  Yilmaz v Minister for Immigration (2000) 100 FCR 495, Spender J at [19], Gyles J at [69]-[71]; Nader v Minister for Immigration (2000) 101 FCR 352, Hill J at [50]-[52];

    i)if, before the delegate makes a decision, the promised information is provided, the amalgam of the original forms and later claims constitutes a valid application:  Yilmaz, Spender J at [20], Gyles J at [72];

    j)if the promised information is supplied after the purported decision of a delegate but before the RRT has made a decision, then the RRT has jurisdiction to make its own decision on the then-complete protection visa application and to substitute its own decision for that of the delegate even though the earlier decision had not been authorised by the Act:  Yilmaz, Spender J at [22]-[24], Gyles J at [93];

    k)An inchoate application will be completed by a later statement of claims only if the later statement is made to the Department and, hence, not if it is made solely to the RRT: Minister for Immigration v Li(2000) 103 FCR 486, Full Court at [77];

    l)if a visa applicant complies substantially with the requirements of the approved form, the application will be a valid one: s.25C of the Acts Interpretation Act 1901 (Cth); Wu v Minister for Immigration (1996) 64 FCR 245, RD Nicholson J, with whom Jenkinson J agreed, at 279; and Bal v Minister for Immigration (2002) 189 ALR 566, Full Court at [37];

    m)an application form which contains claims that identify a Convention reason for the applicant’s claimed fear will, in this respect, comply substantially with the requirements of the form. It is not necessary to be able to distil from a form answers to all questions on the form:  Bal, Full Court at [38]-[40];

    n)in the present case, the applicant lodged an application on 1 July 1997 which omitted claims under the Convention but made such claims to the Department on 10 July 1997, making the previously inchoate application complete on that date;

    o)while the claims provided on 10 July 1997 were in Turkish and not English, the form did not require (as opposed to request) that the information be provided in English. The position may be contrasted with other provisions of the Migration Act or regulations which do require that written information be provided in English, for example: ss.261D(4)(b) and 261F(1)(a)(ii); see also reg 2.52(3);

    p)it follows that the applicant’s original protection visa application was valid and, hence, his subsequent attempts to lodge a second application were barred under s.48A of the Migration Act.

18. In particular, I accept that an application which is incomplete, in that it does not set out the grounds on which a visa is claimed, is not a valid visa application.  It has been found in such circumstances to be inchoate.  However, if before a decision is made, the application is completed, the application becomes a valid application.  It is necessary that the application is completed by submission of necessary material to the Department rather than to the review tribunal.  In this case the application was completed when the information setting out why the applicant claimed to be a refugee was sent to the Department on 10 July 1997.  That was the day on which the delegate made his decision to reject the application.

1. It does appear that either the application was incomplete at the time that the delegate made his decision or, alternatively, that the delegate failed to take into account the claims made by the applicant.  On either basis it would at the time have been open to a court to conclude that the decision of the delegate was invalid.  However, when the matter came before the RRT in 1998 the application had been completed in that all the necessary components of it had been put before the Department. 

2. There is a question of whether the RRT on that occasion acted lawfully in affirming what was probably an invalid decision of the delegate.  However, it is not open to me in these proceedings to re-agitate that question as it has already been dealt with.  The legality of the RRT decision on that occasion has already been dealt with by the Federal Court, albeit, without the benefit of the information now before me.

3. In any event, even if I had jurisdiction to review that decision, I would not have been minded to exercise my discretion to grant relief, even if I had found invalidity, given that five years have passed since the RRT made that decision, and given that the RRT found, on the basis of all of the material put before it, that the claims made by the applicant were internally inconsistent and unconvincing.  In those circumstances, both on the basis of delay and on the basis of futility, in my view, it would not be appropriate to have exercised discretion in order to grant prerogative relief, even if that course were open to me (which it is not). 

4. I can find no legal error in the decision of the Department to refuse to entertain a fresh protection visa application.  The application made by this applicant became a valid application on 10 July 1997.  A valid application was considered and dealt with by RRT.  The Federal Court has not disturbed the decision of the RRT.  In the circumstances, I find that the ministerial delegate properly declined to put the matter before the Minister and properly determined that the applicant was not entitled to make a fresh application for a protection visa.

5. As I have already noted, no issue arises in relation to the later decision of the RRT that it lacked jurisdiction to consider that decision.  In addition, I confirm that there is no basis to disturb the decision of the MRT to reject a late application to review the bridging visa decision nor, indeed, is there any basis for me to disturb the earlier Departmental decision to refuse a bridging visa.  I will therefore dismiss the application before me.

6. On the question of costs, the applicant being wholly unsuccessful and the Minister wholly successful, Mr Lloyd submits that an order for costs should be made.  He submits that given the complexity of this matter and the fact that there have been two hearings before the Court it would be appropriate to fix costs in the sum of $6,000.  I am told that the Minister's actual legal costs are considerably higher than that.  The applicant maintains the view that he did not make a valid original visa application and in substance maintains the merits of the present proceedings before the Court.

7. The matter was a complex one and the resolution of the matter has not been assisted by the rather confusing sequence of events by which the applicant sought to challenge various decisions affecting him.  The Minister has been put to substantial expense in responding to the present application before me and in explaining properly the relevant circumstances so that I could make an informed decision.  I am satisfied that it would be appropriate to make an order for costs fixed in the sum of $6,000. I will so order. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  22 August 2003