FEDERAL COURT OF AUSTRALIA

Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908

MIGRATION – refugees – incomplete application for protection visa lodged referring to statement to be later forthcoming – statement in fact supplied before application refused – whether invalidity of application when lodged cured by subsequent provision of information.

MIGRATION – refugees – failure to comply with procedures – whether Refugee Review Tribunal failed to provide particulars of anonymous and prejudicial allegation – whether failure constituted a ground of review.

ADMINISTRATIVE LAW – tribunals – Refugee Review Tribunal – whether tribunal not constituted by a member properly appointed in accordance with s 421 of the Migration Act 1958 (Cth) – whether nomination of member made in writing – if written nomination made, whether made by Principal Member of the Refugee Review Tribunal.

Migration Act 1958 (Cth) ss 421, 424A, 476(1)(a), 476(1)(b), 476(1)(c)

Herijanto v Refugee Review Tribunal (2000) 170 ALR 379 referred to

Velitchko v Minister for Immigration and Multicultural Affairs [2000] FCA 12 referred to

Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 distinguished

Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 discussed

Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 referred to

Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120 referred to

Minister for Immigration and Multicultural Affairs v “A” (1999) 91 FCR 435 discussed

Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 discussed

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD referred to

Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344 cited

Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560 discussed

Nie v Minister for Immigration and Multicultural Affairs [2000] FCA 347 discussed

SHAHRIAR HOSSEINI POUR NADER v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 508 of 1999

HILL J

10 JULY 2000

SYDNEY

THE COURT ORDERS THAT:

1. The application be allowed.

2. The matter be remitted to the Refugee Review Tribunal (differently constituted) to be heard again in accordance with law.

3. The respondent pay the applicant’s costs of the application up to and including the hearing on 1 May 2000.

4. No order be made as to costs of the affidavit and submissions made subsequent to the hearing date referred to in order 3.

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

REASONS FOR JUDGMENT

1                     The applicant, Mr Shahriar Hosseini Pour Nader (“Mr Nader”) applies to the Court for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), constituted by a Tribunal Member, Ms Rosser, affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant to him a protection visa. The Court has jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (as amended) (“the Act”) to review a decision of the Tribunal, but only on the limited grounds set out in that section.

2                     Mr Nader is a citizen of Iran who arrived in Australia in November 1996. However, it was not until 21 May 1998 that he lodged with the Department of Immigration and Multicultural Affairs a document entitled “Application for a protection visa”. For convenience I shall refer to that document as “the Application Form”.

3                     The Application Form was prepared by a solicitor. It is common ground that the form itself is the approved form 866 referred to in Part 4 of Schedule 1 to the Migration Regulations 1994 (“the Regulations”). A document headed “Part C”, which appears to be intended to be part of the approved form (and the case was argued on the basis that it was) contained the following questions numbered 36 through 40 respectively:

“Why did you leave that country?

What do you fear may happen to you if you go back to that country?

Who do you think may harm/mistreat you if you go back?

Why do you think they will harm/mistreat you if you go back?

Do you think the authorities of that country can and will protect you if you go back? If not, why not?”

4                     These questions were designed to elicit the claims of the applicant that he was a person to whom Australia owed protection obligations under the terms of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees to each of which Australia is a party. The Convention as amended by the Protocol is here referred to as “the Convention”. Expressed broadly, a person will be owed protection obligations if that person is a refugee as defined in the Convention. As defined in the Convention a person will be a refugee, inter alia, if the person has a well-founded fear of persecution on one or more of the grounds which are set out in Article 1A(2), which grounds include religion.

5                     To each of the questions Mr Nader answered:

“Summary and Claims and Statement will be provided”

6                     On 1 July 1998 the then solicitor for Mr Nader forwarded by letter the statement that was anticipated by the response in the form. The statement was signed by Mr Nader. In the statement Mr Nader set out the basis of his claim to be a refugee. It suffices, for present purposes, to say that Mr Nader claimed to have converted to Christianity from the Muslim faith while he was in Iran and as a result had been interrogated, hit during that interrogation, detained on a number of occasions and feared if he returned that he would be arrested, tortured, imprisoned or killed. He claimed that the authorities imputed anti Islamic and anti government opinion to him as a result of his conversion to Christianity.

7                     A delegate of the Minister rejected the claim of Mr Nader to be a refugee and thus refused to grant to him a protection visa. Mr Nader then applied to the Tribunal for review of the delegate’s decision. He was, as already indicated, unsuccessful.

8                     Prior to delivering its reasons the Tribunal had received a number of letters. Some were from members of the Iranian community saying that he was a strong believer in Islam and had not converted to Christianity. Of present relevance is a particular letter written by a person who asked the Tribunal not to reveal to Mr Nader his name. The Tribunal dealt with this letter in its reasons in two passages as follows:

“Mr X is the proprietor of a gymnasium in the Parramatta area. In a letter dated 30 May 1999 Mr X states Mr Hosseini Pour Nader to be of the Muslim faith. He further states that Mr Hosseini Pour Nader was aggressive to the extent that he excluded him from further attendance at the gym. Prior to the hearing, I contacted Mr X by phone. He confirmed the contents of his letter and stated that Mr Hosseini Pour Nader used to harass Christian men of Middle Eastern background who also used to attend the gymnasium. Mr X stated that Mr Hosseini Pour Nader used to tell these men that they should become Muslims. He also stated that Mr Hosseini Pour Nader used to organise other Muslims who went to the gym to say prayers. Mr X asked that his name and the name of the gymnasium not be revealed to Mr Hosseini Pour Nader as he was concerned that Mr Hosseini Pour Nader would take reprisals against him.”

9                     The Tribunal then refers to adverse evidence being given by members of Mr Nader’s family and continued:

“…I told [Mr Nader] that I had information from a gym in the Parramatta area indicating that he used to be involved in organising other Muslim participants to offer prayers. The information also indicated that he had been excluded from the gym because he had told gym participants of Middle Eastern background what are not Muslims that they should convert to Islam.”

10                  The Tribunal member recognised that the letter and evidence of Mr X would be adverse to Mr Nader’s case. Accordingly the Tribunal told Mr Nader that the hearing would be adjourned and that after the adjournment Mr Nader would be interviewed and would be given an opportunity to comment on the information. The learned Tribunal Member notes in her reasons, relevantly, that Mr Nader responded that he had never been excluded from any gym, that there were no Muslims at the gym he had previously attended and that he had not harassed anyone at the gym.

11                  Subsequent to the hearing I was provided with a copy of the relevant pages of the transcript of the hearing in the Tribunal where the Tribunal alerted Mr Nader to the material in the letter and where Mr Nader responded to the matter put to him by the Tribunal Member. It is fair to say that the material in the transcript, so far as it goes to what the Tribunal Member said to Mr Nader coincides with what is in the Tribunal’s reasons for decision. It may be remarked that in his response Mr Nader said that he had been to two or three main gyms (he named three) and said he had never been thrown out or led Muslims in prayer. He named the trainer of a Parramatta gym where he said he had trained for a year and a half and where he said there were no Muslims, that he had not then spoken English and from which he had not, he said, been expelled. The name he used either was or was not the name of the person who wrote the letter. It matters not which. At no time did Mr Nader know to which gym the letter referred, and at no time could he have been in a position to deal with the allegation by calling, as he said he could, the trainer at the gym he attended to demonstrate both that he had not continued to practice devoutly the Muslim faith and that he had not been thrown out for violence, if that was a relevant matter.

12                  The evidence of Mr X had a bearing on the decision although it was not the only evidence upon which the Tribunal relied in finding that Mr Nader had not converted to Christianity. That this is so appears from the following passage in the Tribunal’s reasons:

“Sixthly, I accept the evidence before me that Mr Hosseini Pour Nader was excluded from a gymnasium in the Parramatta area because he harassed non-Muslim men from the Middle East and told them that they should become Muslims. Whilst Mr Hosseini Pour Nader claimed that he has never been excluded from a gymnasium, written material before me clearly contradicts that claim. Mr Hosseini Pour Nader advanced no reason why a person associated with a gymnasium he has attended would make this claim. I consider that the behaviour that led to Mr Hosseini Pour Nader’s exclusion from the gymnasium is inconsistent with his claim that he considered himself to be a Christian at the time he left Iran.”

The grounds of review in this Court

13                  Mr Nader filed an application relying on a number of matters. By the time of the hearing, however, only three remained in issue. One of these matters was not directly dealt with in the application itself, but was raised in written submissions.

14                  First, it was claimed that the Act required the Tribunal to be constituted by a member appointed in writing by the Principal Member of the Tribunal. In the present case, it was said, there had been no appointment in writing and in consequence the Tribunal had been invalidly constituted. For this claim either section 476(1)(b) or 476(1)(c) were relied upon as relevant grounds of review.

15                  Secondly, it was claimed that the failure of Mr Nader to set out in his application form claims upon which he relied to be considered as a refugee, that is to say his failure to answer the questions stated in the Application Form save by reference to a statement to be later forthcoming, had the consequence that Mr Nader had not made a valid application. The invalidity of the application was not cured, it was said, by the subsequent letter of 1 July 1999. In consequence, there was no valid decision of the delegate which the Tribunal could review. Accordingly the decision of the Tribunal should be set aside and Mr Nader would be free to make a valid application, which could then be considered by the Minister and, in the event then of an adverse decision, that adverse but valid decision could then be reviewed by the Tribunal. Section 476(1)(b) (absence of jurisdiction) is relied upon as the relevant ground of review.

16                  Finally, it was claimed that the Tribunal had failed to give to Mr Nader in accordance with s 424A of the Act particulars of the name of Mr X or the name of the gym from which it was said that Mr Nader had been excluded. This was said to be a breach of the procedures which the Tribunal was required to observe and accordingly a ground of review under s 476(1)(a) of the Act. Since this ground was not directly or perhaps even indirectly raised in the application, it was be necessary for leave to be given to amend the application. Subject to permitting the Minister to file a relevant copy of the transcript of the proceedings and make any additional submissions after that had been done, there is no prejudice to the Minister and accordingly I would permit the amendment of the application to enable this ground to be argued.

17                  I turn now to deal with each of the claims advanced.

The constitution of the Tribunal

18                  The factual basis for this claim was a response to a request by Mr Nader’s present solicitor that he forward to him the Tribunal documents relating to the constitution of the Tribunal for the review. The Tribunal produced a document headed “Constitution” which showed that Ms Rosser had on 1 April 1999 been constituted as the relevant Tribunal Member for the Tribunal review. The document was unsigned. A copy of the unsigned document was then attached to an affidavit lodged some time after the time for filing affidavit evidence had expired but a few days before the hearing before me was due to commence. Easter also intervened between the date of the affidavit and the date of the hearing. In the time available the Australian Government Solicitor was unable to prepare and have sworn an affidavit directed to showing that there had in fact been a constitution in writing. Accordingly I directed that any affidavit evidence upon which the Minister proposed to rely in opposition to that filed on behalf of Mr Nader be filed within a week of the hearing. Counsel for the Minister stated from the bar table that in fact an affidavit would be filed showing that there had indeed been a written nomination. In these circumstances I deferred any argument that might be directed at the legal necessity for a written and signed nomination pending the Minister’s evidence being filed: see s 421 of the Act.

19                  An affidavit of Dr Nygh, the acting Principal Member of the Tribunal was subsequently filed with leave. He swore that an entry had been made of the allocation to Ms Rosser in a report entitled “Constitution Report” for the period 29 March 1999 to 4 April 1999. He had signed the report probably on 6 April (not the preceding day, which was Easter Monday, his practice being to sign the weekly allocations each Monday) but in any event no later than 7 April 1999. Since the hearing did not take place until August of that year, it is clear that the Constitution Report had been signed prior to the hearing,

20                  The applicant’s solicitor gave notice that he wished to cross-examine Dr Nygh on his affidavit. Given that the Principal Member of the Tribunal has the same immunity from cross-examination as a judge would have, there may have been some difficulty in requiring Dr Nygh to comply with the request, cf Herijanto v Refugee Review Tribunal (2000) 170 ALR 379. However, it is not necessary to consider that question. The request was subsequently withdrawn.

21                  However, it was submitted that, despite the affidavit, there had not been a nomination in writing as required by s 421. The substance of the submission was that it was clear from the affidavit that the nomination had been made by some person in advance of Dr Nygh signing the Constitution Report so that s 421 had not been complied with. There is, in my view, no substance in the submission. While it is obvious that some person had, in advance of Dr Nygh signing the report, prepared an allocation (it could readily enough be called a draft allocation) there is no suggestion that Dr Nygh was but a rubber stamp for someone else making the nomination. It would have been open to him, had he wanted, to have altered the nomination, rather than affixing his signature to it. The practical exigencies of administering a tribunal such as the Refugee Review Tribunal are that administrative officers make recommendations to those charged with the legal responsibility to make the particular decision for which the recommendation is made. But when, as here, and as one might expect would almost always be the case, the recommendation is implemented by the person charged with the making of the decision, it does not mean that the decision has been made by the person making the recommendation. The signing of the Constitution Report by Professor Nygh was the allocation which s 421 required. It was an allocation in writing. If Dr Nygh’s signature was required, it was on the Constitution Report. There is thus no necessity for me to determine whether the absence of a written nomination would impose a procedural requirement the failure to comply with which would be a ground of review under s 476(1)(a) of the Act: cf Velitchko v Minister for Immigration and Multicultural Affairs [2000] FCA 12 per Lindgren J.

Was there a valid application?

22                  The submission that failure to provide in the Application Form, by way of answers to the questions referred to earlier, information as to the grounds upon which Mr Nader was entitled to be considered as a refugee is founded upon a decision of Heerey J in Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421. In this case, his Honour set aside a decision of the Tribunal on the basis that the applicant in that case had not completed a valid application for a visa because the applicant had, as in the present case, indicated that further information would be forwarded later. The facts of the case differ, however, from the present in that, whereas in the present case, the promised information had been forwarded to the decision-maker before the decision which was later referred to the Tribunal for review had been made, in Li the decision forwarded to the Tribunal for review was made before the information was in fact supplied. It will be necessary to consider whether this factual difference has any significance to the outcome.

23                  It was the view of Heerey J that the legislative scheme, which his Honour outlined, attached special importance to the initial application and the need for the application to contain all information that is required, including the Convention claims which an applicant makes. His Honour said:

“Otherwise there is simply not an application at all. The detailed process laid down by the Act and Regulations has not validly commenced.”

24                  As a matter of comity, a single judge of this Court ought to follow a decision on like facts of another judge of the Court unless of the view that the first decision is clearly wrong. If the facts of the present case were indistinguishable, I would follow Li and conclude that the decision of the Tribunal should be set aside. Although counsel for the Minister formally submitted that the decision in Li was wrong, it is far from clearly wrong. In fact, as presently advised, I am of the view that it is correct. Apparently another case on facts similar to Li is listed for hearing before a Full Court at the next Full Court sittings. Subject to the High Court giving leave to appeal that decision, the resolution of cases such as Li is thus likely to be determined in a relatively short period of time.

25                  However, the real question debated before me, and which I have to decide, is whether the factual difference between Li and the present case should produce a different result. That requires me to consider the statutory framework and context, and the decisions referred to in Li afresh.

26                  The Act authorises the Minister to issue various types of visa (s 29) including a protection visa: see s 36. Generally speaking the only criteria upon which visas are authorised to be issued are to be found in Reg 2.03 and Schedule 2 of the Regulations which sets out the relevant criteria for protection visas in Subclass 866, which has to be read together with s 36 of the Act and the Convention. The various criteria have to be satisfied both as at the time of the Application (866.21) and at the time of the decision (866.22).

27                  One of the criteria relevant to a person seeking a protection visa under Subclass 866 is that the applicant “make specific claims under the refugees convention”. Although it is not a specific criterion that an applicant for a protection visa be lawfully in Australia at the time of making the application, a person in Australia but not lawfully here (referred to in the Act as an “unlawful non-citizen”, see the definition of that expression in s 14) must, when detected, be detained and is liable to be removed or deported: ss 189, 199 or 200. To avoid detention, and to enable Australia to comply with its obligations under the Convention a person seeking a protection visa would ordinarily apply for and be granted a bridging visa: s 37 and Part 2, Division 3, Subdivision AF of the Act. In some circumstances, at least, it may be relevant to the grant of a bridging visa that the person had made a valid application for a protection visa after arrival in Australia: see, eg, s 72(1)(c) and s 72(2)(b).

28                  Sections 45(1) and (2), the critical sections for present purposes, provide:

“(1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

(2) Without limiting subsection (1), the regulations may prescribe the way for making:

(a)                 an application in specified circumstances; or

(b)                 an application for a visa of a specified class; or

(c)                 an application in specified circumstances for a visa of a specified class.”

29                  Section 46 then provides:

“(1) Subject to subsection (2), an application for a visa is valid if, and only if:

(a) it is for a visa of a class specified in the application; and

(b)               it is made in the way required by subsection 45(2), including any way required by subsection 45(3) ...”

30                  Regulation 2.07 provides that for the purposes of ss 45 and 46 of the Act, if an application is required for a particular class of visa, the matters that are set out in the relevant part of Schedule 1 are the approved form (if any) to be completed by an applicant, the visa application charge and other matters relating to the application. The completion of an approved form in accordance with any directions in it is mandated by Regulation 2.07(3). Schedule 1 of the Regulations, which relates to classes of visas, contains a note that the Schedule sets out the specific ways in which a non-citizen is to apply for a visa of a particular class. The note then provides:

“An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47.”

31                  Under s 47 the Minister is obliged to consider “a valid application for a visa”. Subsections (3) and (4) of that section then provide:

“(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)               To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”

32                  The applicant for a visa may withdraw it under s 49.

33                  Section 54 requires the Minister to have regard to all information in the application. It is in the following terms:

“(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application

(2)               For the purposes of subsection (1), information is in an application if the information is:

(a)               set out in the application; or

(b)               in a document attached to the application when it is made; or

(c)                given under section 55.”

Section 55(1) provides that an application may give the Minister additional information prior to the time the decision is made. The Minister may himself get further information, including inviting the applicant orally or in writing to provide that information: s 62(1). After considering “a valid application”, the Minister may, if satisfied that the prescribed criteria are satisfied, grant the visa, or if not so satisfied refuse to grant the visa: s 65. The applicant must be notified of the decision and when the Minister refuses to grant the visa, the applicant may, apply to the Tribunal to have the decision reviewed: Part 7, Division 2 of the Act. The Tribunal has jurisdiction only to review “RRT-reviewable decisions” as defined in s 411. Although Division 2 Part 7 of the Act does not say so specifically, this must mean decisions in essence refusing to an applicant a protection visa where the decision of the Minister or delegate was validly made. It follows from the sections set out above that this means that it is only where an applicant has made a valid application for a protection visa that there can be a RRT-reviewable decision. Since the Minister can not make a decision on an application which is invalid, a fortiori, the power of the Tribunal to set aside the Minister’s decision and replace it with some other decision (see s 415(2)(d)) could only be exercised where there was a valid application. It may be noted that the Tribunal has no power just to set aside a decision. If it were to set aside a decision it must do so only in conjunction with substituting for that decision some other decision.

34                  Finally reference may be made to s 69 of the Act, which, although it has no direct relevance to the present case, has been the subject of some discussion in the cases. The section provides:

“(1) Non-compliance by the Minister with Subdivision AA or AB 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.”

35                  The statutory scheme which I have outlined above makes it very clear that the making of a valid application is an essential step, both in ensuring that an applicant is entitled to have his or her claims to be a refugee under the Convention assessed by the Minister, but also in ensuring that the merits review process which the Tribunal is authorised to undertake is actually commenced. Indeed, as already indicated, there could be circumstances where the making of a valid application for a protection visa ensures that the non-citizen is not liable to be detained or removed.

The previous case law

36                  There is no case which is precisely on point in resolving the present question. However, it is useful to turn to cases decided in other factual circumstances to see what guidance they provide.

37                  First, it may be noted that a full Court in Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 held that the effect of ss 45, 46 and 47 and Reg 2.07 was that an application for a protection visa had to be made in the approved form and substantial compliance was not enough. Nicholson J, with whose reasons Jenkinson J agreed, pointed out that the statutory language made it clear that an application made in the prescribed manner was an essential precondition to the power of the Minister to consider and grant a visa. His Honour did, however, suggest that once there was an approved form brought into existence there was room for the operation of substantial compliance. His Honour pointed to the legislative purpose of avoiding applications coming before the Minister which did not have a Convention reason to support them. Carr J was, generally, of a similar view (see at 261).

38                  Thereafter in Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 Finkelstein J held that the Minister was not required to consider an application for visa unless made in the prescribed form. If the application was not in the prescribed form then the Tribunal was held by his Honour, in the later decision of Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120, not to have had jurisdiction to conduct a review of a decision purporting to have been made by reference to the invalid application. The Tribunal’s powers could rise, his Honour held, no greater than the source of those powers, that is to say the decision referred to it.

39                  The next decision of relevance was Minister for Immigration and Multicultural Affairs v “A” (1999) 91 FCR 435. In that case an applicant for a protection visa had lodged an incomplete application form, indicating that further information would be forthcoming. Before the information was provided a delegate of the Minister decided the application adversely to the applicant, who, however, failed to appeal to the Tribunal within the time prescribed for applications for review. The applicant subsequently requested the Minister to exercise his power under s 48B of the Act to permit the applicant to make another application for a protection visa. The Minister refused and the applicant then applied to this Court for judicial review of that refusal. In the course of the appeal by the Minister to the Full Court, the Court, comprising Merkel, Emmett and Finkelstein JJ, raised with counsel the question whether the initial application was valid. Merkel and Finkelstein JJ (Emmett J not deciding) held that it had not validly been made, and in consequence the applicant had no need to apply to the Minister for permission to make a second application as there has never been an original application.

40                  Merkel J, after setting out the relevant statutory provisions to which reference has already been made, and the cases to which I have made reference suggested that not every failure to complete the approved form would necessarily lead to invalidity. However, his Honour was of the view that in the case before him (and it could not be distinguished from the present) there was no room for any substantial compliance doctrine, for there had been substantial non-compliance, by virtue of the failure to provide the specific claims upon which the applicant relied for the grant of the protection visa.

41                  Relevant to the present case is the following comment made by his Honour:

“In my view s 69 does not, of itself, operate to validate a visa decision purportedly made under s 65 on an invalid application. I accept that considering an invalid application, contrary to the requirement in s 47(2) not to do so, is a non-compliance by the minister for the purpose of s 69(1). If the non-compliance related only to the issue of considering an invalid application it need not necessarily result in invalidity on a review of the decision. Thus, if information omitted from an application is later provided, consideration of the invalid application need not result in invalidity of the visa decision. While it is unnecessary to consider that situation in the present case it is clearly arguable that the subsequent provision of the information might overcome the initial invalidity. The answer to that question would involve consideration of the role of ss 54(1), (2)(c) and 55 which require the minister to have regard to all of the information “in the application” which for the purposes of s 54(1), includes information provided subsequently under s 55. It may be that in such circumstances a valid application is to be regarded as having been made when the subsequent information is provided: see Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 at 25.”

42                  In the case before the Court, there had been a decision which purported to have been made under s 65 of the Act to refuse to grant a visa. Since s 65 did not fall within Subdivision AA or AB of the Act, but within Subdiv AC, s 69 had no application to preserve the validity of the decision for the purposes of review. As his Honour said, under s 65 the Minister was only authorised to make a decision to grant or refuse to grant a visa when there was a valid application. His Honour’s conclusion is summarised in the following passage at 604:

“The language of the relevant provisions and the scope and object of the Act lead me to conclude that it was the purpose of the legislature that a decision to grant or refuse to grant a visa applied for on an invalid application is a decision which was made without power and is invalid save to the extent that particular provisions of the Act might expressly or impliedly provide otherwise. For example, in addition to decisions, whose validity is preserved, at least for the purpose of review, by s 69(1), it is plain that judicially-reviewable decisions, for the purposes of Pt 8, include decisions made without authority under the Act or without jurisdiction, see s 476(1)9b) and (c). Such decisions, as with decisions covered by s 69, may be intended to have operative effect pending a review of the decision under the Act.”

43                  Emmett J did not find it necessary to decide whether there was an invalid application and the effect of such an application if there were. Finkelstein J was of the view that it was clear that there had not been a valid application and in consequence the Minister had not been entitled to consider it. When the delegate purported to do so his decision was “devoid of legal content”, that is to say he had made no decision at all. His Honour was of the view that his conclusion was unaffected by s 69, which section had no application for it applied only where there had been a valid decision to grant or refuse a visa. The section could only operate where there had been non-compliance with regard to a valid visa application and not a purported or invalid application.

44                  The case of Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489, to which Merkel J referred, again concerned an incomplete application. In this case the applicants had failed to file Part C of the application form. The application was rejected and thereafter there was an application to the Tribunal to review the decision to reject the application to grant a protection visa. The applicant during the course of the hearing provided the missing form to the Tribunal. However the Tribunal affirmed the decision of the Minister or delegate. Before Finn J the applicant submitted that there had been no valid application. This submission was accepted by his Honour. However, it was argued by the Minister that because the applicant had provided to the Tribunal the actual missing form there was, at that stage a valid application. Alternatively it was submitted that even if the visa application was invalid there had been a decision refusing to grant a protection visa and s 69(1) saved the decision of the Minister from invalidity, so that it was open to the applicants to seek review of the decision.

45                  Finn J held, first, that s 69(1) had the consequence that the Tribunal had before it a valid decision of the Minister, albeit that that decision was only valid unless and until set aside by the Tribunal on application to it. However, that resulted only in the conclusion that the result should be that the decision should be set aside. Secondly, however, his Honour took the view that the production to the Tribunal of the missing part of the form (Part C), the application which the Tribunal itself considered was a valid application, so that it was open to the Tribunal to exercise, in respect of it, all the powers and discretions which the Act conferred upon the delegate making the original decision, with the result that the challenged on this basis to the Tribunal’s decision failed.

46                  That leads finally to Li. In that case Heerey J, after referring to the discussion by Merkel J in “A” concluded that the decision of the delegate had been invalid because the Minister had no power to grant or refuse to grant a visa on an invalid application. However, the decision was, his Honour held, an RRT-reviewable decision. This followed, according to his Honour, because s 476(1)(b) and (c) conferred upon the Federal Court power to review decisions made without jurisdiction or decisions not authorised by the Act or the Regulations, so that the review process contemplated that the Court could review decisions of the Tribunal made by it beyond jurisdiction including, therefore, decisions made by the Tribunal on applications made by it to review decisions of the Minister made by reference to invalid applications: cf Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD at 4-5. His Honour then referred to the passage from the judgment of Merkel J set out at para 40 of these reasons, which passage was relied upon by counsel for the Minister, and continued:

“I would respectfully doubt whether that is the case, given the explicit requirement for the visa application form itself to contain, amongst other things, details of the specific Convention claims: s 40(1), reg 2.04, sch 2, ccl 866 [sic]. section 54(1) proceeds on the assumption that there is an application in existence, which must mean a valid application. Section 55 is concerned with ‘additional relevant information’. But additional to what? The answer must be, additional to the information contained in a valid application, the statutory precondition for the valid grant or refusal of a visa. But in any event in the present case there was no further information provided before the delegate’s decision. Therefor that decision was invalid, and the RRT should have so found.”

His Honour then referred to Phanouvong. His Honour disagreed with what Finn J had said, so far as his Honour had concluded that the consequence of the Tribunal having been supplied with the missing part of the form was that the Tribunal had considered a valid application, pointing out that while the Tribunal had the powers of the decision maker it did not have a first instance jurisdiction, but rather acted to review a decision of the Minister. The legislature had, in his Honour’s view, attached special importance to the initial application, in that the application had to spell out the Convention claim. Where the application was incomplete there was no valid application and in consequence the process with which the Act was concerned had not commenced. In a passage relied upon in the present case by the applicant, his Honour said:

“So, consistent with the policy of meticulously spelling out every step in the process and thus avoiding argument and uncertainty, the scheme says in effect that applicants must, at the time of lodging the application, put their case in the way the form required, but they are able to add to it.

It seems unlikely that Parliament intended that, notwithstanding the critical importance of the initial application form in the legislative scheme, ss 54 and 55 were to have the effect that the nullity of an invalid application form can be fixed up by the subsequent supply of information, even after the Minister’s decision.

There is in my opinion no power in the Minister to treat a non-complying ‘application’ as remedied by some subsequent document. No such power is conferred by the Act on the person who makes the RRT-reviewable decision. Therefore there is no such power for the RRT to exercise: s415(1).”

47                  The decisions certainly all support the submission that in the present case there was not a valid application. They support the proposition that where the missing information is not supplied to the Minister, or for that matter to the Tribunal, there is no valid decision which the Tribunal can review, so that, if the Tribunal proceeds to do so, its decision should be set aside, and the result is that, the applicant, having made no valid application, can start again.

48                  The decisions leave open the question, which arises here, whether the Tribunal has power to review a decision made by the Minister, or a delegate, where the application was invalid, but where information, not completed in the original application, has been supplied by the applicant to the Minister or delegate before the decision is given. There is, as well, a conflict in these decisions, as to the effect of s 69.

49                  The decision of Finn J in Phanouvong stands for the proposition that where the Minister considered an application that was not valid at the time of his consideration, the Tribunal has, by force of s 69(1) jurisdiction to enter upon a consideration of that decision, albeit that the Tribunal should merely do no more than decide there was an invalid application. The decision of Heerey J in Li arrives at the opposite conclusion.

50                  The decision of Merkel J suggests that it is clearly arguable that the subsequent supply of information has the consequence that any initial invalidity is overcome. The decision of Heerey J in Li stands for the proposition that the later supply of information does not operate to validate an invalid application.

Conclusions

51                  I would find, consistent with the authorities to which I have referred, that the application when lodged in its incomplete form with the Minister was invalid. That application could not, itself, be validated by the later supply of information: see per Heerey J in Li. However, I can see no reason why the proper analysis is not that what happened is that the applicant lodged what can be referred to as an “inchoate” application, completed by the supply of information, which supply, while clearly not operating with retrospective effect to validate an application already lodged, did operate for the first time to cause there to be brought into existence a valid application. So long as the provision of the information operated to complete the application before consideration by the Minister, the decision of the Minister could not be invalidated, because at the time of consideration by him, there was a valid application, and in consequence the decision of the Minister was a valid decision. On this basis it is unnecessary to consider the effect of s 69(1) at all.

52                  I reach this conclusion by commencing with s 45(1). That section makes it mandatory that there be an “application” . Section 46 makes it mandatory that the application be made in accordance with the Regulations prescribed under s 45(2). The Regulations require the application to be in the approved form and that the approved form be “completed”. Not to answer a question leaves the form incomplete and accordingly there to be no application. I leave out of consideration here the question whether there could be scope for the substantial compliance rule, because there was here no substantial compliance while the form was incomplete.

53                  Once the statement referred to in the Application Form to be forthcoming was in fact provided, it had to be read together with the form then lodged. Once this happened there was then an application which the Minister was obliged to consider and which the Minister was not directed not to consider under s 47(3). The one difficulty with this argument seems to lie with s 54. That section requires the Minister to have consideration to information “set out in” or “attached to” the application. Information supplied under s 55 could only extend to information which is provided after the application has been made. So, the question is whether information which is foreshadowed in the Application Form as intended to be supplied later, and in fact is supplied later, can be said to be information which is “set out in the application”, particularly having regard to the reference in paragraph (b) of that subsection that consideration can be given to “a document attached to the application when it is made”.

54                  In my view, there is no reason why information can not be regarded as being in an application when it is incorporated in it by reference. That is what has happened in the present case. Also, it is clear that s 54 is referring to an application form when it uses the word “application”. However, ss 45 and 46 use the word “application” or “apply” not to refer to an application form, but to refer to the process of application, notwithstanding that the process involves completion of an application form.

55                  Any other interpretation seems to me to produce very considerable administrative inconvenience and is capable of producing injustice to an applicant. Accepting that the legislative policy which gives significance to the application is concerned to ensure that when making his or her decision the Minister has before him or her details of the circumstances which ground the Convention claim of an applicant, that legislative policy is as well satisfied where the application consists of two documents as where it consists of one. Secondly, assuming the Minister rejects the application, but the Tribunal in fact sets aside the Minister’s decision to grant the application, the result would cause hardship to the applicant who would have to start again, not merely before the Tribunal, but also before the Minister. Thirdly, a consequence of the opposite view is that while an applicant has conveyed the entirety of his or her case for being granted a protection vis to the Minister, the Minister has no obligation to consider it, but, indeed, could, if other conditions were satisfied, detain the applicant and deport him or her.

56                  In my view, there was a valid application, not when the Application Form in its incomplete state was submitted, but once the information foreshadowed in the incomplete form was provided to the Minister. While it is clear, in accordance with the existing case law, that the information supplied could not operate retrospectively to validate the invalid application, it operated to complete the inchoate application and produce then, for the first time, a valid application. Thus Mr Nader had made a valid application for a protection visa to be granted to him and had done so before the application was considered by the Minister. In consequence, there is no need to consider any possible application of s 69 and in particular the conflict between the views of Finn J and those of Heerey J. That is a matter that can be left until the question arises in an actual case.

The inadequacy or otherwise of the particulars supplied under s 424A

57                  Section 424A of the Act provides as follows:

“(1) Subject to subsection (3), the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)               invite the applicant to comment on it.

(2) …

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)               that the applicant gave for the purpose of the application; or

(c)               that is non-disclosable information; or

(d) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;”

58                  The expression “non-disclosable information” is defined in s 5 to mean information or matter, inter alia the disclosure of which may affect the public interest or information or matter.

59                  There is little doubt that s 424A is part of the procedure which the Tribunal is bound to follow in conducting its review. So much is made clear, if that were necessary, by the explanatory memorandum circulated when the Migration Legislation Amendment Bill (No 1) 1998 (which, when enacted, inserted the section into the Act) was introduced into Parliament. As I said in Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344 (paras 32 and 33), s 424A is enlivened when the Tribunal forms the view that there is information that is relevant to the review and the information is or may be adverse to the applicant. There could be no obligation upon the Tribunal to produce to Mr Nader the letter, apparently from a gym owner, or perhaps an attendee of a gym, for the obligation under s 424A is an obligation to give particulars, not an obligation to produce documents.

60                  In order that the obligation under s 424A is enlivened, the information which the Tribunal has in its possession and to which s 424A has application, must, as I have indicated, be relevant to the review, that is to say, that it must be such that it could have a bearing on the outcome. One can infer that the legislative purpose of the enactment of s 424A (particularly where the failure to give natural justice is not a ground of judicial review in an application to this Court) was to ensure that an applicant could be apprised of such particulars of the information which the Tribunal has become aware of so that the applicant can have the opportunity of meeting whatever adverse consequence the information might have on the outcome of the review, whether by calling, if that course is desired, evidence to rebut it, or by commenting on it. Thus, the question of what is required by way of particulars will fall to be resolved by reference to the nature of the information the Tribunal has received.

61                  In the present case it must be doubted whether the name of the writer of the letter would fall within the category of relevance to which I have referred. There would be cases where a name might well have relevance. For example, if the Tribunal had become aware of information to the effect that a certain event had occurred in which the applicant and another person were participants, (an event which had some relevance to the applicant’s claim to be considered as a refugee) the information might well be unintelligible unless the name was supplied, so that the incident in question could properly be identified. Here, however, it is hardly of any relevance to the review whether the informant was person A or person B. The only relevance of the material in the letter to the review was whether it was in fact the case that at a gym the applicant had been involved in organising other Muslim participants to offer prayers and inciting those of Middle Eastern background, who were not Muslims, to convert. This information was no doubt relevant to Mr Nader’s claim that he had converted to Christianity, since it was his religion which founded his claim to be considered a refugee.

62                  There might well also be an argument, though it was not raised on behalf of Mr Nader, that the name of the letter writer was, in the circumstances, subject to an obligation of confidence. However, in my view, the name of the gym where these events were alleged to have happened was clearly a relevant particular for, unless Mr Nader had been told where it was that he was said to have led others in prayer or encouraged others to convert, it would be impossible for him to adduce evidence from others that this event did not happen. The significance of the name of the gym is perhaps emphasised because Mr Nader said, in response to such information as the Tribunal provided him, that he had not been excluded from any gym. It would be extremely difficult for Mr Nader to call evidence about what happened in all gyms in the Parramatta area (and the extent of the Parramatta area, could be the subject of debate) to show that he had not been excluded, that he had not called Muslims to prayer and that he had not proselytised the Muslim faith. If the name of the gym were known, the possibility of calling evidence would then have been open to him.

63                  It was submitted on behalf of the Minister that the evidence which was contained in the letter was not of great or perhaps any significance, given particularly that the Tribunal’s reasons for not believing Mr Nader had converted to Christianity were four in number. However, it can not be said that the Tribunal necessarily would have decided to reject the evidence of Mr Nader but for the material in the letter. It will be noted that the Tribunal accepted the material in the letter in preference to Mr Nader’s oral evidence. One may doubt the wisdom of accepting allegations from people who are not prepared to have their evidence subjected to scrutiny, let alone preferring that evidence to evidence on oath. One may, indeed wonder at the Tribunal member suggesting that Mr Nader had advanced no reason why the writer of the letter would make the claim when Mr Nader was not told who the writer was, and so would not be able to explain the motive of an anonymous informer. Be that as it may, it is clear that the Tribunal accepted that what the anonymous writer said was true. This was a matter which went directly to contradict the claim that Mr Nader had made. It went also to his credit. It assisted, if assistance were required, in the discrediting of other claims and evidence which Mr Nader made or gave. In my view, the Court would not, as a matter of discretion, affirm the decision of the Tribunal in such a case. It suffices that the material in the letter could have affected the outcome of the review.

64                  I would accordingly allow the application and set aside the decision of the Tribunal. The application should be remitted to the Tribunal to be heard again by a Tribunal differently constituted in accordance with law. The Minister should pay the applicant’s costs of the application up to and including the hearing. The subsequent costs, as relate to Dr Nygh’s affidavit and the attempts to have him cross-examined, as well as submissions in that regard all related to matters on which the applicant was unsuccessful. I would make no order as to those costs.

65                  After the hearing was completed attention was drawn to two judgments delivered on 3 May 2000.

66                  The first was a judgment of Lindgren J in Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560. That case involved an incomplete application form, not complete at the time the Minister or his delegate rejected the application for refugee status. As in Li, the information was supplied to the Tribunal. His Honour followed the decision of the full Court in “A” and Li, holding that while the Tribunal had jurisdiction to consider the Minister’s decision, that being an “RRT-reviewable decision”, nevertheless the Tribunal had no power to affirm what had been an invalid decision, having regard to the fact that the application, which had been considered, was invalid and the terms of s 47 of the Act which prohibited the Minister from considering the invalid application.

67                  His Honour did not decide whether the provision of the information to the Tribunal operated to complete the process of application, as I have held, because even if that had been the case the application would have had to be considered by the Minister or delegate. It could not be considered for the first time by the Tribunal for so to do would be for the Tribunal to make the initial decision when the Tribunal’s function is to review a decision once it has been made. Nothing in his Honour’s reasons thus touches upon the question which I was called upon to decide.

68                  The second judgment was a further judgment of Heerey J: Nie v Minister for Immigration and Multicultural Affairs [2000] FCA 347. In this case the applicant had answered each question in the application form, although some of the answers indicated that further information would be provided. Further submissions were provided some years later. The judgment does not make clear whether the further submissions were provided before the Minister made the decision which was thereafter referred to the Tribunal for review, or only at the time the matter came before the Tribunal. The latter would seem most likely to be the case having regard to such dates as appear in the judgment. His Honour distinguished his own judgment in Li on the basis that a fair reading of the answers given in the application made it clear that the applicant was making a claim that he feared persecution on the ground of political opinion and that all questions had been answered, albeit some by reference to further information being provided at a later time, and thus there was a valid application which the applicant was able to supplement by further information under s 55 of the Act. Again, the case is distinguishable from, and of no assistance in resolving, the present application.

69                  Before concluding this judgment I should like to comment upon one further matter. It was not a ground of review and probably could not fall under s 476(1). However, it should not be allowed to pass without comment. In the course of the hearing in the Tribunal, the Tribunal quizzed Mr Nader in some detail about the tenets of the Armenian Catholic faith to which he said he had converted in Iran and the beliefs of the Mormon Church which he said he had attended for some of the time he had been in Australia. In my view, the questioning was quite inappropriate. Assuming that it was possible for the translator properly to translate the questions, and for Mr Nader to understand them, it would simply not follow from the fact that a person could not answer them that the person had not converted to the one or the other religion. I know many who profess Christianity and whose native language was English, who would have been quite uncomfortable in answering the questions. Further, one may ask whether it was at all necessary for Mr Nader’s case that he have a detailed knowledge of either religion. If a person in Iran professed to convert to Christianity, that person could well be open to persecution on religious grounds whether he or she understood fully, or even not at all, the tenets of the religion which they said they had adopted.

Associate:

Dated: 10 July 2000