SZKUO v Minister for Immigration (No.2)
[2009] FMCA 498
•27 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUO v MINISTER FOR IMMIGRATION (No.2) | [2009] FMCA 498 |
| MIGRATION – Application for declaratory relief that applicant is not liable to removal and injunctive relief to restrain the respondent from removing the applicant from Australia and continuing to detain the applicant – whether an application for a protection visa has been finally determined in circumstances where the Refugee Review Tribunal’s decision is found to have been affected by jurisdictional error but constitutional writ relief was refused and the application for judicial review dismissed – whether the applicant’s bridging visa continues in circumstances where he has had notification only of a purported privative clause. |
| Acts Interpretation Act 1901 (Cth), s.15AA Migration Act 1958 (Cth), ss.5(9); 5(9)(a); 189; 196; 198; 198(6); 425; 426A; 430; 430(1); 430B(6); 474; 476; 476(1); pt.5; pt.7 Migration Regulations 1994 (Cth), sch.2 |
| SZKUO v Minister for Immigration & Anor [2007] FMCA 2073 SZKUO v Minister for Immigration & Anor [2009] FCA 93 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295 SZIMG v Minister for immigration and Citizenship [2008] FCA 368 Keen v Telstra Corporation Limited (2006) 230 ALR 313 Tervonen v Minister for Justice and Customs (No.2) [2007] FCA 1684 Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 Lansen v Minister for Environment and Heritage [2008] FCAFC 189 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 |
| Applicant: | SZKUO |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 631 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 May 2009 |
| Date of last submission: | 13 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Patrick Reynolds |
| Solicitors for the Applicant: | Ms May Guo, Fragomen Lawyers |
| Solicitors for the Respondent: | Mr Andras Markus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 631 of 2009
| SZKUO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application made to the Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on the basis that it seeks relief in respect of the following migration decisions:
i)A decision under s.198 of the Act to make arrangements for the removal of the Applicant from Australia and in respect of which the Applicant was notified on or about 20 February 2009; and
ii)The decision under s.189 and/or s.196 of the Act to continue to detain the Applicant and/or refuse to release the Applicant from detention in respect of which the Applicant received notification on 11 March 2009.
It is common ground between the parties that the Court has jurisdiction under s.476(1) to consider the application before it for the relief sought. The Court is also satisfied that it has jurisdiction to consider the relief sought in the application.
On 4 September 2000, the Applicant arrived in Australia from China on a passport issued in his own name on 7 May 1998 and a temporary business visa issued on 28 August 2000.
The Applicant’s claims in support of his protection visa
On 3 October 2000, the Applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs (“the Department”). The Applicant provided a statement in support of his protection visa application, also dated 3 October 2000.
The Applicant claimed that in November 1998 his father organised Falun Gong activities in China with the assistance of the Applicant. The Applicant stated that on 28 May 1999 he and others participated in a demonstration in support of Falun Gong which lasted for three days. The Applicant said a few days later his father suddenly disappeared without a trace and thereafter the Chinese government declared Falun Gong as “an anti-government organization”. The Applicant stated that he was investigated, arrested and detained for 16 days and ordered to enter “study class”. The Applicant stated that, following his release, his activities were watched and that he lost his freedom. The Applicant stated that he was ordered to report his thoughts regularly to the government. The Applicant stated that he obtained his passport with the assistance of friends and immediately left China for Australia.
The Delegate’s decision
On 18 October 2000, the Applicant was notified that his application for a protection visa had been refused. The delegate of the Department who refused the application found the Applicant’s claims to be “general and devoid of any detail regarding his beliefs and commitment” to Falun Gong. The delegate otherwise found the Applicant’s claims of his father’s disappearance to be lacking in credibility and found there was no evidence to suggest that the Applicant would come to the attention of the authorities in China now or in the future. The delegate found that the Applicant was not a person to whom Australia has protection obligations under the Refugees Convention as amended by Refugees Protocol.
The Tribunal’s decision
On 21 November 2000, the Applicant lodged an application for review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”).
On 2 February 2001, the Tribunal wrote to the Applicant informing him that the Tribunal had looked at the material relating to his application but was not prepared to make a favourable decision on that information alone. The letter invited the Applicant to come to a hearing before the Tribunal to give oral evidence and present arguments in support of his claims. The letter informed the Applicant that, if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
On 18 February 2001, the Applicant responded to the hearing invitation indicating that he wished to attend the hearing and requesting an interpreter to assist him. The hearing information form provided by the Tribunal indicated that the Applicant had failed to attend the Tribunal at the time and date at which the hearing was scheduled.
In its decision record, the Tribunal noted that the Applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. The Tribunal noted that the Applicant had responded to the hearing invitation indicating that he wished to attend, however, no contact had been received from the Applicant to explain his failure to attend. Accordingly, the Tribunal purported to exercise its discretion pursuant to s.426A of the Act to decide to make its decision on the review without taking any further action to enable the Applicant to appear before it.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to the evidence provided by the Applicant to the Department in support of his application and also country information in relation to the treatment of Falun Gong practitioners in China. The Tribunal was not satisfied on the evidence and material before it that the Applicant was a Falun Gong practitioner and noted matters that it would wish to have discussed and explored with the Applicant at a hearing. The Tribunal then affirmed the decision under review.
The Applicant’s application for judicial review
On 22 June 2007, the Applicant filed an application for review of the Tribunal’s decision with the Federal Magistrates Court.
In support of his application to the Court, the Applicant read an affidavit, sworn/affirmed by him on 16 June 2007, in which he stated that he had in fact attended the offices of the Tribunal at the time and on the day of his scheduled hearing and made himself known to reception. He stated that reception told him that he would be called when it was his turn. He stated that he waited for about 20 minutes and approached reception again. He stated that reception then made a phone call, following which reception told him that he could go home and that he would be contacted by the Tribunal later.
On 21 December 2007, Cameron FM dismissed the Applicant’s application for judicial review (SZKUO v Minister for Immigration & Anor [2007] FMCA 2073).
In the course of his reasons, Cameron FM accepted the Applicant’s evidence and found that the criteria for s.426A of the Act had not been satisfied. His Honour found that, in the circumstances, the Tribunal had exceeded its jurisdiction in proceeding to make a decision on the review application.
However, Cameron FM found the Applicant’s delay in filing an application for judicial review of the Tribunal’s decision to be unsatisfactorily explained. Accordingly, Cameron FM refused to exercise his discretion to grant the Applicant the Constitutional writ relief sought.
On 16 February 2009, Flick J dismissed an application for leave to appeal from the decision of Cameron FM (SZKUO v Minister for Immigration & Anor [2009] FCA 93).
On 11 March 2009, the Australian Government Solicitor wrote to the Applicant’s lawyers on behalf of the Department disputing the Applicant’s assertion that a bridging visa granted to the Applicant on 3 October 2000 remained in effect. The letter made clear that in the Department’s view, by operation of subclause 010.511(b)(iii)(A) of schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), the Applicant’s bridging visa had ceased 28 days after notification to the Applicant in 2000 of the Tribunal’s decision to affirm the decision of the delegate not to grant him a protection visa. The letter informed the Applicant’s solicitor that, for those reasons, the Applicant is an unlawful non-citizen and, accordingly, would not be released from immigration detention.
On 12 March 2009, the Applicant’s solicitor responded to the Australian Government Solicitor’s letter sent on behalf of the Department. The Applicant’s solicitor’s letter stated that the Applicant disputed that he had been notified of the Tribunal’s decision according to law, because that decision was a “purported privative clause decision and was therefore not a decision” under the Act that enlivened the obligation of the Department under s.198 of the Act to remove the Applicant. Further, the Applicant’s solicitor’s letter stated that the Tribunal’s decision, being infected by jurisdictional error, was no decision at all. The letter stated that therefore the Applicant’s application for a protection visa had not been finally determined and, accordingly, the Applicant could never be removed under s.198 of the Act. The letter went on to say that, in those circumstances, given that there is no ability for the Department to remove the Applicant, the Applicant cannot be kept in indefinite detention.
The present proceeding
On 17 March 2009, the Applicant filed an application in this Court seeking declaratory and injunctive relief to prevent his removal from Australia and to provide for his immediate release. The application for interlocutory relief was heard by me on 13 May 2009. The relief sought was refused on that date supported by reasons given ex tempore.
On 23 April 2009, the Applicant filed an amended application containing the grounds upon which he now relies for the relief sought.
The orders sought in the amended application are as follows:
“The Applicant claims:
1. The application be granted.
2. A DECLARATION issue to the effect that:
(a)the Applicant’s PV Application has not been “finally determined” as defined in s 5(9) of the Act;
(b)the Applicant’s BVA granted on or about 3 October 2000 has not ceased to have effect and remains valid until such time as his PV Application is “finally determined”;
(c)the Applicant is not an unlawful non-citizen liable for continued Detention under s 189 or s 196 of the Act;
(d)the Applicant is not an unlawful non-citizen liable to be removed under s 198 of the Act.
3.A writ of the nature of HABEAS CORPUS issue, directed to the Respondent, for the release of the Applicant.
4.An INJUNCTION be granted, restraining the Respondent from:
(a) removing the Applicant from Australia; and
(b) continuing to detain the Applicant.
5. The Respondent pay the Applicant’s costs.
6. Such further or other order as this Court considers fit.”
The grounds of the amended application are as follows:
“1.On or about 9 April 2008, the Applicant was detained by officers of the First respondent’s (“Minister”) Department and he continues to remain in detention (“Detention”). The Detention was, and is, unlawful because s 189 and/or s 196 of the Act do not, and/or or does not, authorise the Detention:
(a)on 3 October 2000, the Applicant made a valid application for a Protection (Class XA) visa (“PV Application”), being a substantive visa which can be granted when he is in the migration zone;
(b)by virtue of the Applicant’s PV Application, on or about 18 October 2000 the Applicant received notification that he has been granted a Bridging A (Class WA) visa (“BVA”);
(c)as at the time of the Applicant’s Detention, the Applicant was not, nor is he now, an unlawful non-citizen, because he held, and presently holds, a BVA;
(d)further, or in the alternative, the Applicant was not, and is not, an unlawful non-citizen liable to be in Detention because he is not a person:
(i) liable to be removed from Australia under s 198 (or s 199) of the Act;
(ii) liable to be deported under s 200 of the Act;
(iii) the subject of an application which has been “finally determined” within the meaning of s 5(9) of the Act;
hence the Detention is not for a purpose authorised by s 189 and/or s 196 of the Act.
2.Further, in the above circumstances, the Applicant is not liable to be removed pursuant to s 198 (or s 199) of the Act, or at all.”
As stated above, the Minister has detained the Applicant pursuant to s.189 of the Act on the basis that he is an unlawful non-citizen. Relevantly, s.189 of the Act is as follows:
“s.189(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.”
The Minister proposes to remove the Applicant pursuant to s.198(6) of the Act which states as follows:
“s.198(6) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) the non‑citizen is a detainee; and
(b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(iii) the visa cannot be granted; and
(d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.” (emphasis added)
Section 5(9) of the Act defines what is meant for the purposes of the Act by “finally determined”. Section 5(9) is as follows:
“s.5(9) For the purposes of this Act, an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.” (emphasis added)
Part 5 deals with review by the Migration Review Tribunal and is therefore irrelevant to the proceeding before this Court. Part 7 deals with reviews by the Refugee Review Tribunal and is the relevant Part for the purposes of the proceeding before this Court. It is common ground that the relevant definition for the case before this Court is that contained in s.5(9)(a) of the Act.
The Applicant was represented in this Court by Mr Reynolds, of counsel. The Applicant contends that his application for a protection visa has not been finally determined because the Minister’s decision is still subject to review under Part 7 because no valid decision has been made by the Tribunal.
The Respondent was represented by his solicitor, Mr Markus. The Respondent contends that the decision by the delegate, dated 18 October 2000, refusing the Applicant a protection visa, is no longer subject to any form of review because the Federal Magistrates Court dismissed the proceeding before it which sought Constitutional writ relief in respect of the Tribunal’s purported decision, dated 26 July 2001.
At the heart of the submission by counsel for the Applicant is a submission that “a decision” as referred to in s.5(9)(a) of the Act does not include a purported privative clause decision and that the decision of the Tribunal is a purported privative clause decision. Therefore, no valid review has been completed in respect of the Delegate’s decision; and, therefore, the Applicant’s application for a protection visa has not been “finally determined”.
In support of that submission, counsel for the Applicant relied on various statements of members of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”). In particular at [51] where Gaudron and Gummow JJ stated:
“A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”
And at [53]:
“… it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.”
And at [153] where Callinan J stated that:
“Once it is recognised that a court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences.”
The Applicant also referred the Court to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (“Plaintiff S157/2002”) at 506; 509) where the High Court of Australia held that an administrative decision which involved a jurisdictional error was no decision at all and is therefore not a privative clause decision as defined in s.474 of the Act. The High Court found that a privative clause decision does not extend to include a decision apparently or purportedly made under the Act.
In Bhardwaj, the High Court of Australia found that the tribunal was entitled to complete its review by correcting in a second decision a jurisdictional error in the first decision. The High Court found that in the first decision, the tribunal had not conducted a review as required by the Act and as such had failed to exercise jurisdiction.
Counsel for the Applicant then took the Court to various authorities that had applied the principles in Bhardwaj (SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295 per Rares J at [59]; SZIMG v Minister for immigration and Citizenship [2008] FCA 368 per Rares J at [24]; Keen v Telstra Corporation Limited (2006) 230 ALR 313 per Rares J at [29]; Tervonen v Minister for Justice and Customs (No.2) [2007] FCA 1684 per Rares J at [115]). However, none of these cases raised the issue before this Court of the legal effect of a decision affected by error where, upon judicial review of the decision of the administrative body, Constitutional writ relief was refused.
Bhardwaj cannot be understood to stand for the proposition that jurisdictional error on the part of an administrative decision-maker always means that the decision is no decision or a decision without legal consequences (Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27]). Bhardwaj did not consider the circumstances where, having found that a decision-maker has made a decision infected by jurisdictional error, the Court refuses to issue Constitutional writs in the exercise of its discretion. The refusal to issue Constitutional writs means that the Court will not compel the decision-maker to treat the decision as no decision at all (Lansen v Minister for Environment and Heritage [2008] FCAFC 189 at [166]).
It is clear that neither Bhardwaj nor Plaintiff S157/2002 considered the status of an administrative decision affected by jurisdictional error in the absence of a challenge to its validity, or, after a court has found such error to have existed but declined to treat the decision as a nullity. Bhardwaj cannot be taken to be authority for the universal proposition that jurisdictional error on the part of a decision-maker would lead to the purported decision having no consequence whatsoever (Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 (“Jadwan”)).
In Jadwan Gray and Downes JJ made clear that the legal and factual consequences of a decision will depend on the particular statute. Their Honours referred to McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where their Honours stated as follows:
“An act done in breach of a condition regulation the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.” (Gray and Downes JJ at [42])
Counsel for the Applicant also referred to SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [52] (“SZFDE”) where the High Court held that a decision made in circumstances where a fraud has been perpetrated on the tribunal is no decision at all and the tribunal’s jurisdiction remains “constructively unexercised”. SZFDE was concerned with a fraud found to have been perpetrated on the tribunal by the applicant’s migration agent.
In my view, SZFDE is not a case that is relevant to the proceeding before this Court, nor, does it support a submission that the jurisdiction of the Tribunal is “constructively unexercised”. It may be that the Tribunal acted in excess of its jurisdiction. However, I accept the submission of the solicitor for the Respondent that those notions are not always the same.
It is also important to consider the nature of the error found to have been made by the Tribunal. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 (“Brian Lawlor”) at 342, Deane J stated the principle as follows:
“The exercise of a power conferred by an enactment will ordinarily involve, at least implicitly, assessment of the content of the power and determination of whether any conditions precedent to its existence or valid exercise has been fulfilled. Such assessment and determination, even if wrong or mistaken, are incidents of the power conferred. A decision as to the exercise of the power which is based upon and is the result of a wrong assessment of content or a mistaken determination that conditions precedent have or have not been fulfilled will, in terms of legal effect, be void or voidable. It is none the less proper, in the context of a legislative scheme for review of decisions made under the enactment, to regard the decision as a “decision under” the enactment.” (emphasis added)
A decision is a fact to be distinguished from its legal consequences. A decision made beyond power but within its intended exercise does not carry the same legal consequences as it would have carried if there had been power to make it. The legal consequences which it does carry depend upon the effect attributed by the law to the fact of the decision (Brian Lawlor at 307). Smithers J in Brian Lawlor at 307 cited with approval the principles as enunciated by the then President of the Administrative Appeals Tribunal, Brennan J, as follows:
“Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court of an appeal tribunal. The denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court or appeal tribunal to review, quash or otherwise affect the decision. The right to invoke the jurisdiction depends upon the terms of the law creating that right and conferring jurisdiction to grant relief against the decision in question.” (emphasis added)
In the case before this Court, the Tribunal clearly had power under s.426A of the Act to proceed to make its decision on the review without taking any further action to invite the Applicant to come to a hearing. However, the valid exercise of that power was dependent upon certain conditions precedent having been fulfilled. The effect of the finding by Cameron FM that the Tribunal was not entitled to exercise its power under s.426A of the Act, was that His Honour’s finding was tantamount to the Tribunal making a mistaken determination that conditions precedent had been fulfilled, namely, those conditions precedent identified in s.425 of the Act.
The authorities have made clear that an invalid administrative decision can have operational effect under some statutes, such as where it may be necessary to treat an invalid decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for discretionary reasons (Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 413 (“Leung”); Bhardwaj per Gleeson CJ). In Leung, Finkelstein J, with whom Beaumont and Heerey JJ agreed, stated at 413 as follows:
“There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.” (emphasis added)
Section 5(9) must be construed in light of the purpose of the scheme of the relevant legislation. It is clear that the purpose of s.198 and s.5(9) is to bring to finality the dispute between the parties. To that end, the legislation ought to be construed so as to give effect to that purposive intention (s.15AA of the Acts Interpretation Act 1901).
The provisions of s.198 concerning removal are mandatory in that an officer must remove as soon as practicable an unlawful non-citizen in the circumstances variously specified in s.198. The relevant provisions should be construed so as to enable identification with precision the point of time when an application has been finally determined. Neither s.198 nor s.5(9) refer to a “valid decision”.
A “decision” in s.5(9) ought be construed so as to give effect to the purpose of the legislation, which is to identify the point of time when an application for a protection visa made under the Act is no longer subject to any form of review and the litigation between the parties is at an end.
It is no longer open to the Applicant to impugn or challenge the validity of the Tribunal’s decision dated 26 July 2001. The Applicant could not commence a fresh proceeding for Constitutional writ relief in respect of that decision without being met by a defence of res judicata or issue estoppel, since the question of his entitlement to Constitutional writ relief in respect of that decision was finally determined by Cameron FM when His Honour dismissed the Applicant’s application for such relief. In short, the Tribunal has purported to make a decision. That decision has not been set aside. No other person has standing to challenge the validity of the decision.
It may be that, where the Tribunal has purported to make a decision which is affected by jurisdictional error, the Tribunal could of its own motion reconsider that decision because of that error. In those circumstances, the Tribunal’s review may not yet be complete. However, that is not the question raised by the language of s.5(9).
The Tribunal’s decision is a decision under the Act. Cameron FM then refused to quash the Tribunal’s decision and dismissed the Applicant’s application seeking that order. The Tribunal’s decision has not been set aside and therefore is not a decision without effect.
The legal effect of the orders made by the Federal Magistrates Court and the Federal Court of Australia are that the delegate’s decision refusing the Applicant a protection visa is no longer subject to any form of review. Irrespective of any finding by the Federal Magistrates Court of error in the Tribunal’s decision, Cameron FM refused the relief sought and dismissed the application before him. The Federal Court of Australia dismissed an application for leave to appeal from the orders made by Cameron FM. In the circumstances, the decision made in respect of the Applicant’s protection visa application is no longer subject to any form of review under Part 7 of the Act.
In the circumstances, review of the Delegate’s decision to refuse the Applicant a protection visa has been finally determined. Accordingly, the Applicant’s detention pursuant to s.189 or s.196 is lawful, as would be the removal of the Applicant from Australia pursuant to s.198 of the Act.
The Applicant’s bridging visa
Counsel for the Applicant submitted that the Applicant’s bridging visa remains in effect pursuant to subclause 010.511(b)(iii)(A) of the Migration Regulations 1994 (Cth) (“the Regulations”) because the decision of which notice is to be given to the Applicant must be a valid decision at law. Counsel for the Applicant relied on the same arguments outlined above as to why the decision was not a decision at law.
Where judicial review is sought of a decision following merits review, there is no automatic continuation of the original bridging visa. In such circumstances, a person is eligible for a further, new, bridging visa.
Clause 010.5 regulates when a visa is in effect. Relevantly, subclause 010.511 of schedule 2 of the Regulations provides that a bridging visa granted to a non-citizen who has applied for a substantive visa permits the holder to remain in Australia until:
“(b)(iii) if the substantive visa application is refused and the holder applies for merits review of that refusal – 28 days after notification of the decision of:
A) the review authority;” (emphasis added)
The Respondent concedes that, for the purposes of subclause 010.511(b)(iii), time does not start to run if “notification” is invalid.
The Applicant does not suggest that 28 days has not expired since he first had notice of the Tribunal’s decision. Neither does the Applicant suggest that he was not given notice of the decision in accordance with the legislative scheme. The Applicant’s submission is that the decision was not a valid decision and a proper construction of subclause 010.511(b)(iii) demands that it should be.
However, Mr Markus submitted that subclause 010.511(b)(iii) demands only that the Applicant be notified in accordance with the requirements of the Act and that it is irrelevant to compliance with those requirements whether the decision itself is valid or invalid.
The relevant legislative scheme is set out in s.430B(6) and s.430(1) of the Act.
Section 430B(6) of the Act requires, relevantly, that “the tribunal must notify the Applicant of the decision by giving the Applicant a copy of the statement under subsection 430(1)”.
Section 430(1) states as follows:
“(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.”
Section 430 of the Act creates an obligation on the Tribunal to create a written statement setting out certain information.
Section 430B(6) of the Act requires notification of a tribunal’s decision irrespective of whether that decision is valid or not. To construe s.430B(6) otherwise would be to deliver absurd consequences that plainly are not intended by the scheme of the Act. For example, the notification is of an administrative decision capable of review; how can an affected party consider their rights until they have received the decision.
Moreover, a tribunal can comply with s.430(1) of the Act even though the decision of which notice is given is an invalid decision. There has been no suggestion that the statement of the Tribunal’s reasons in the case before this Court does not comply with s.430(1) of the Act.
Sections 430B and 430(1) clearly focus on the validity of the notification, not the validity of the decision.
The scheme of the provisions makes clear that a reference to notification of the decision is a reference to a decision by a tribunal, whether or not the decision is later found to be affected by jurisdictional error. Regulation 010.511(b) of the Regulations does not require that the decision of which notification has been given must be a valid decision. It refers, relevantly, only to notification of the decision of the review authority, in this case, the Refugee Review Tribunal. Notice of that decision, even though it may have been affected by jurisdictional error, has been given.
In the circumstances, time commenced to run against the Applicant upon notification to him of the Tribunal’s decision and, in accordance with subclause 010.511(b)(iii)(A) of the Regulations, ran out 28 days after notification to the Applicant of that decision. Notification to the Applicant of the Tribunal’s decision occurred far more than 28 days ago.
In the circumstances, the Applicant no longer holds a valid bridging visa.
Accordingly, the grounds of the amended application are not made out and the orders sought by the Applicant should be refused.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 27 May 2009
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