Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 1137

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 1137 MD AMJAD HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1420 OF 1999 LEHANE J 15 AUGUST 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1420 OF 1999

BETWEEN: MD AMJAD HOSSAIN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEHANE J

DATE OF ORDER: 15 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1420 OF 1999

BETWEEN: MD AMJAD HOSSAIN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEHANE J

DATE: 15 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, a Bangladeshi national, arrived in Australia on 4 September 1997. He carried a Bangladeshi passport issued, he said, in a false name and bearing an Australian visa (he has subsequently obtained, in Australia, a Bangladeshi passport in what he claims is his own name). On 21 October 1997, he lodged an application for a protection visa. A criterion for such a visa is that the applicant for the visa be a non‑citizen in Australia to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol related to the Status of Refugees (Migration Act 1958 (Cth) s 36(2)). The application form was lodged on behalf of the applicant by a migration agent. It was incomplete, because the questions requiring particulars of the basis of the applicant's claim to be a refugee were answered "please see my statutory declaration when provided". No statutory declaration was ever provided to the Minister. It followed that the "application" was not valid (Migration Act s 45; Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435). Section 47(3) of the Migration Act provides that the Minister is not to consider an application that is not a valid application. Nevertheless, a delegate of the Minister considered the application and purported to refuse it. 2 On 28 November 1997, the applicant lodged an application for review by the Refugee Review Tribunal of the decisions purportedly made by the delegate. The applicant provided to the Tribunal various documents said to establish his identity and some aspects of his circumstances. The Tribunal informed him, by letter dated 7 October 1999, that it was not prepared to make a favourable decision on the papers. The Tribunal offered the applicant a hearing on 4 November 1999, an offer which the applicant accepted. On 3 November 1999, however, the applicant submitted a medical certificate, on the basis of which he claimed to be unable to attend the hearing the following day. The hearing was accordingly stood over to 11 November. Up to that time the foreshadowed statutory declaration, setting out the basis of the applicant's claims, had still not been provided either to the Minister or to the Tribunal. The declaration, dated 10 October 1999, was provided to the Tribunal on 10 November 1999. 3 The Tribunal proceeded to conduct a hearing on 11 November 1999. It gave its decision orally at the conclusion of the hearing and then, on 17 November 1999, sent the applicant, as required by s 430D of the Migration Act, a copy of the statement prepared in accordance with s 430. Its decision was to affirm the decision of the delegate not to grant the applicant a protection visa. 4 The applicant now seeks judicial review of the Tribunal's decision under Pt 8 of the Migration Act. The sole ground stated in the application (which the applicant lodged himself, though he appears to have had some assistance – probably not legally qualified assistance – in its preparation) is error of law "involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision" (Migration Act s 476(1)(e): the application may be taken to raise both limbs of that ground). At the hearing, however, counsel for the Minister drew attention to the fact that the invalidity of the initial application for a protection visa might, having regard to cases such as Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 and Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560, have the result that the decision of the Tribunal was liable to be set aside under s 476(1)(b) or (c) of the Migration Act. The Minister indicated that he would consent to an amendment of the application so as to raise those grounds, submitted that I should refuse to follow Li Wen Han and Kundu and that accordingly the application should be dismissed and suggested that, in any event, I should defer delivering judgment until the Full Court had delivered its decision in a pending appeal which squarely raised the applicability of the grounds in s 476(1)(b) and (c) in cases such as the present. The applicant consented to that course.