FEDERAL COURT OF AUSTRALIA

Najarian v Minister for Immigration & Multicultural Affairs [2000] FCA 933

MIGRATION – application for a protection visa – review of decision of Refugee Review Tribunal – whether requirements of s 430(1) were satisfied – whether evidence upon which adverse credibility findings are based is required to be referred to in the reasons of the Tribunal – whether an invalid application – whether an application can be treated as being made upon the subsequent provision of the information omitted in the original application

Migration Act 1958 (Cth) ss 45, 46, 47, 54, 65, 415 and 430(1)

Acts Interpretation Act 1901 (Cth) s 25(c)

Migration Regulations Reg 2.07

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 – referred to

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 - applied

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 – referred to

Epeabaka v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 411 – considered

Hill v Green (1999) 48 NSWLR 161 - considered

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

Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908 - applied

Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 - considered

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

Samuel v Minister for Immigration and Multicultural Affairs [2000] FCA 854 - considered

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

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

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 - discussed

NAJARIAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 256 OF 1998

JUDGE:          MERKEL J

PLACE:          MELBOURNE

DATE:            19 JULY 2000

The Court orders that the application be dismissed with costs.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant is a citizen of Iran.  He applied for a protection visa on 14 March 1996 claiming that he was entitled to refugee status because he had a well-founded fear of political persecution if he returned to Iran.  His claim was rejected by a delegate of the Minister for Immigration and Multicultural Affairs and by the Refugee Review Tribunal (“the RRT”).  The RRT found that the applicant is not a refugee and, as a consequence, affirmed the decision of the delegate not to grant the applicant a protection visa.  The applicant has applied to the Court to review the decision of the RRT under Part 8 of the Migration Act 1958 (Cth) (“the Act”).

The decision of the RRT

2                     The applicant claimed that he was entitled to refugee status as he met the requirements of the definition of a refugee set out in Art 1A of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Refugees Convention”).  The applicant’s claim, that he has a well-founded fear of being persecuted for reasons of political opinion if he returns to Iran, was based upon four matters.

3                     The first was the applicant’s claim that he and a cousin were arrested and imprisoned in 1981 after they protested about the arrest and execution of another cousin of the applicant.  The second was the applicant’s claim that, notwithstanding his agreement after his imprisonment in 1981 not to take any part in further political activities, he again became active politically when he and his friends distributed to friends, and those they trusted, pamphlets opposing executions that were then taking place in Iran.  The applicant claimed that these activities led to his arrest in 1989 after which he and some of his friends were imprisoned without trial and tortured.  The applicant said that he and his friends were released after six months as they did not confess and the authorities did not know to which group they belonged.

4                     The third matter was the claim of the applicant that after his 1989 imprisonment the authorities refused to grant him an exit permit because of his political activities, although in 1994 he and his wife were issued with passports and exit papers by the Iranian authorities in order to enable the applicant and his wife to participate in an IVF program.

5                     The fourth matter related to the applicant’s claim that, a short time after his arrival in Australia with his wife, he was informed by his brother of the arrest in Iran of his friends and cousin who had mentioned the applicant’s name to the authorities as a member of their group.  The applicant claimed that, as a consequence of his previous co-operation with members of the group and their naming of him, the local police had come to his brother’s house in Iran searching for him.  The applicant claimed that he had been advised by his brother not to return to Iran as, if he did, he would arrested on landing at the airport.

6                     The applicant’s claims were based on his own evidence as he had been unable to obtain any corroborating evidence or material.  Accordingly, his claim to be a political refugee depended upon the extent to which the RRT was prepared to accept his evidence that he was of interest to, and was being sought by, the authorities in Iran by reason of his actual or perceived political activities.

7                     The RRT, after referring to the applicant’s evidence, stated that it did not find him to be “an impressive witness”.  The RRT stated that it had “significant doubt” about the applicant’s claims that he was imprisoned and tortured in 1981 and 1989.  However, the RRT did not finally resolve those matters as it was not satisfied, on the whole of the evidence available, that there was a real chance that the applicant would suffer political persecution should he return to Iran at the date of its determination, being 25 May 1998.  The main reasons given by the RRT for that conclusion were summarised by it as follows:

·        the applicant had stated that he had not engaged in political activity after his release in 1989;

·        the claim of the applicant that, as a result of his political activities, he was refused a passport for some time after 1989 was found to be unconvincing;

·        the RRT was not satisfied that the applicant was of any present interest to the Iranian authorities by reason of any of his political activities in the 1980s;

·        it was “fanciful” to suggest that the applicant would have been given documents by the authorities that permitted him to depart from Iran so that he could participate in an IVF program if he was of interest to the authorities by reason of his political activities;

·        the evidence about the recent interest of the authorities in the applicant was also found to be unconvincing and was said to be “inconsistent” with other evidence given by him;

·        accordingly, the RRT was not satisfied that the applicant “is of any present interest to the Iranian authorities”.

8                     Essentially, the RRT found the applicant not to be a credible witness and therefore rejected his version of the relevant events.  Counsel for the applicant, recognising the difficulties confronting him in challenging the RRT’s adverse credibility findings against his client (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 555-559) argued a number of grounds which were said to involve reviewable error by the RRT.  Several discrete issues emerged.  The first issue related to the finding of the RRT that the applicant’s evidence that his friends had given his name to the authorities, with the consequence that he was in danger of imminent arrest if he returned, was “inconsistent and unconvincing”.  It was contended that there was no basis for the finding as the applicant’s evidence on that issue had not been inconsistent.  Counsel also contended that the finding that the applicant’s evidence was inconsistent did not satisfy the requirements of s 430(1) of the Act: see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845.

9                     The second issue related to whether the RRT failed to consider whether the fear of persecution might be on the basis of perceived or imputed, rather than actual, political opinion: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571.

10                  A third issue related to whether the applicant’s application for a protection visa complied with the requirements of s 45 of the Act and reg 2.07 of the Migration Regulations (“the Regulations”).  The applicant contended that his application did not comply with those statutory requirements with the consequence that it was invalid and was not capable of being the subject of a determination under s 65 of the Act to refuse to grant a protection visa irrespective of whether he later provided the information: see Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 at 446-447 per Merkel J and at 460 per Finkelstein J.  More recently a majority in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 took a different view of the construction of s 65: see Spender J at [23]-[25] and Gyles J at [94]-[95] cf Marshall J at [54]-[56].

No evidence

11                  In its reasons for decision the RRT stated that it found the applicant’s evidence concerning the recent interest of the authorities in him to be “inconsistent and unconvincing”.  The basis for the conclusion that the applicant’s evidence was inconsistent was not stated in the reasons of the RRT but was raised by the RRT at the hearing: see the transcript of the hearing at 11-12.  It appears that, initially, the applicant had contended that the authorities had become interested in him since his arrival in Australia by reason of his political activities, including those that had led to his arrest in 1981 and in 1989.  The RRT put to the applicant that it was “fantasy land” to suggest that the Iranian authorities had given the applicant and his wife a passport and exit stamp if they were still interested in him as a result of those political activities which, on the applicant’s evidence, had ceased after 1989.  The applicant’s response was that he had been “co-operating with the group” after 1989 to which the RRT said: “Shifting sands really, is it not, Mr Najarian?”.  When the applicant answered “No” the RRT stated that it regarded the evidence given by the applicant as “not convincing”.

12                  In my view it was clearly open to the RRT to find that the applicant’s evidence as to recent events was inconsistent and unconvincing.  Whether the RRT’s reasoning on that issue was satisfactory, or even whether it is reasonable, is not an issue arising on an application for review under Part 8 of the Act; unsatisfactory reasoning or illogicality do not, of themselves, constitute errors of law: see Singh at [44]; Epeabaka v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 411 at 420-422 and Hill v Green (1999) 48 NSWLR 161 at 174 and 176.  Accordingly, the ground of review based on no evidence must fail.

Section 430(1)

13                  The majority judgment of Black CJ, Sundberg, Katz and Hely JJ in Singh is authority for the following propositions in relation to s 430(1):

·        a failure to comply with s 430(1) is a failure to observe procedures required by the Act to  be observed in connection with the making of a decision and therefore constitutes a ground of review under s 476(1)(a): see [43];

·        s 430(1) does not impose any obligation on the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached, although the RRT is obliged to set out its findings on any material questions of fact: see [44] and [47];

·        there is no specific requirement in s 430(1) for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made, although if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process: see [46];

·        the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  Consequently, it must make findings on questions of fact “that are central to the case raised by the material and evidence before it” or upon which the “decision, one way or the other, turns”, having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57];

·        a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56].  Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64];

·        fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62].

14                  The reasons of the RRT in the present case, although succinct and possibly overly brief, satisfy the requirements of s 430(1) as laid down in the majority judgment in Singh.  The critical material question of fact was whether the RRT was satisfied that the applicant was of any present interest to the authorities in Iran by reason of his actual or imputed political activities.  The RRT found against the applicant on that issue as it found his evidence to be unconvincing and, accordingly, rejected it.  The rejection was based essentially upon its adverse findings in relation to the applicant’s credibility.  The material question of fact for the purposes of s 430(1) was not the applicant’s credibility.  Rather, the fact, objectively determined, upon which the case turned was, as stated above, whether the applicant was of present interest to the authorities.

15                  In the summary I have given of the RRT’s reasons it is apparent that it explained why it had arrived at the conclusion which led it to reject the applicant’s claims.  Importantly, the approach of the RRT to the credibility issues was open to it on the material: see Kopalapillai at 552 and 556.  One of the reasons given by the RRT was that it found the applicant’s evidence concerning the recent interest of the authorities in him to be “inconsistent” with other evidence he had given.  As credibility is not a material question of fact, s 430(1) does not require the RRT to refer to all of the evidence upon which each adverse credibility finding is based.  Accordingly, the RRT was not required to detail in its decision the “inconsistent” evidence upon which it had based its conclusion.  It is relevant that “inconsistency” was only one of the reasons for the RRT’s rejection of the applicant’s evidence.  Other reasons it gave included the finding that the applicant’s evidence was unconvincing, and that the applicant was found not to be an impressive witness.

16                  On the basis of its various findings the RRT was not prepared to accept the applicant’s uncorroborated version of events as justifying or warranting a finding that he was of interest to the authorities in Iran by reason of his perceived or imputed political activities.  While the RRT did not expressly refer to the issue of any perceived or imputed political activities of the applicant, its finding that it was not satisfied that the applicant was of any present interest to the authorities implicitly rejected any case of perceived or imputed political opinion raised by the material.

17                  I am satisfied that the RRT explained why the decision went the way it did and provided the reasons for its decision in accordance with s 430(1).  Of course, if the RRT did no more than state it rejected an applicant’s version of events then a serious issue would arise as to whether the reasons complied with s 430(1).  However that is not what has occurred in the present case.

18                  Accordingly, the grounds of review based upon s 430(1) and the alleged failure of the RRT to consider the case on the basis of perceived or imputed political opinion have not been made out.

Invalid application

19                  On 14 March 1996 the applicant lodged an “Application for a Protection Visa (866)” in the prescribed form.   The prescribed form contained a number of questions relating to the basis for the applicant’s claim to be entitled to refugee status.  The applicant answered one of the questions by stating that he feared persecution and “torture and ultimately prison” in the event that he returned home but otherwise failed to answer the questions relating to why he had that fear.  The answers to those questions were plainly critical to any assessment of the applicant’s specific claims under the Refugees Convention and his failure to answer them constituted a substantial non-compliance with the requirement that the prescribed form be completed in accordance with the directions in it: see s 45 and reg 2.07(3).  Accordingly, without those questions being answered neither the delegate or the RRT, on a review of the delegate’s decision, had any power under s 65 to make a decision to either refuse to grant or to grant a protection visa on an invalid application: see s 415 and Minister for Immigration and Multicultural Affairs v A at 446-447 and 460-461.

20                  The prescribed form used by the applicant contained a section relating to documents provided with the application and a section relating to documents to be provided later.  The latter section was as follows:

“Documents you will provide later

  15   Please list all the documents you are not providing with this application, but will be providing later (for example, certified copies of passports, birth certificates, evidence of dependency).”

The section was completed by the applicant as follows:

“OUR CLAIM FOR REFUGE STATUS (PROTECTION VISA) WILL BE LODGE AT LATER STAGE.”  [sic]

21                  Prior to the claim being lodged, the Department of Immigration and Multicultural Affairs (“the Department”) wrote to the applicant informing him that his application had been received and would be processed.  He was also informed that if he had any additional information relevant to his application it should be given to the Department as soon as possible, but no later than 21 days after the date of the letter.

22                  It is common ground that, approximately a week after the application was lodged, the applicant lodged his “claim” for refugee status with the Department (“the claim”).  The claim answered the questions which were left unanswered in the original application.  If the claim had been provided in the original application it would have formed part of it and there would be no basis for contending that the original application was an invalid application.

23                  On 30 July 1996 the delegate made her decision on the basis, inter alia, of the material contained in the original application and the claim.  In the decision, which refused to grant a protection visa to the applicant, the delegate treated the application as a valid application.  The RRT, likewise, treated the application as a valid application under the Act.

24                  At the commencement of the hearing of the application for review of the RRT’s decision by the Court, the applicant applied for, and was granted, leave to raise, as an additional ground of review, the “invalid application” issue.  Counsel for the applicant contended that as the applicant had failed to complete the prescribed form in accordance with the directions contained in it the application was, and thereafter remained, an invalid application.

25                  Prior to the decision in Yilmaz, a number of recent decisions of single judges of the Court in relation to invalid applications had established that:

·        the Minister and his delegate have no power under s 65(1) of the Act to make a decision to refuse to grant a protection visa in respect of an invalid application;

·        the RRT has no power under the Act, on a review of a decision by the Minister or his delegate to refuse to grant a protection visa that has been applied for on an invalid application, to affirm the decision to refuse to grant a protection visa;

·        the provision of the information omitted from the invalid application after the decision of the delegate, but prior to the decision of the RRT, does not cure the invalidity.

26                  See Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 (Heerey J), Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560 (Lindgren J) and Samuel v Minister for Immigration and Multicultural Affairs [2000] FCA 854 (Wilcox J).

27                  In Minister for Immigration and Multicultural Affairs v A at 446 I adverted to the possibility of information omitted from an application being provided later, stating that it was “clearly arguable that the subsequent provision of the information might overcome the initial invalidity”.  In Han, Kundu and Samuel it was held that where that information has been provided after the delegate’s decision, but prior to the decision of the RRT, that does not have the effect of validating the invalid application: cf Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 at [25].  In Yilmaz, Marshall J at [54]-[56] agreed with the single judge decisions but Spender J at [23]-[25] and Gyles J at [94]-[95] disagreed with those decisions in holding that the original defect in an invalid application can be cured by the provision of the requisite information to the RRT.  In the Minister for Immigration and Multicultural Affairs v A (at 446), in adverting to that possibility I did not intend to suggest that I had formed any view on that issue or on whether Phanouvong was correctly decided as that issue did not arise for decision in Minister for Immigration and Multicultural Affairs v A and had not been argued.

28                  The cases to which I have referred did not have to decide the issue arising in the present case.  That issue is whether the provision of the omitted information, as foreshadowed in the original application, prior to the delegate’s decision cures the defect in the original application.  In that regard it is relevant to note that the omitted information is to form part of the material to which the delegate was required to have regard (ss 54 and 55(1) of the Act).  I would have some difficulty in reconciling the majority decision in Yilmaz as to the construction and operation of s 65 of the Act with the decisions of myself and of Finkelstein J in Minister for Immigration and Multicultural Affairs v A.  However, as I have not found it necessary to resolve that conflict in the present case it may best be left for another day.

29                  In order to determine whether the original application became a valid application upon the applicant lodging his “claim” with the Department, it is necessary to consider the relevant aspects of the statutory scheme applicable at the date of the delegate’s decision, being 30 July 1996.  Those aspects were succinctly summarised by Finkelstein J in Minister for Immigration and Multicultural Affairs v A at 460:

“Section 46 of the Migration Act 1958 (Cth) gives the criteria for a valid application for a visa.  One requirement is that it be made ‘in the way required by subsection 45(2)’: s 46(1)(b).  Section 45(2) provides that the Regulations may prescribe the way for making an application.  The Regulations do make such prescription.  Regulation 1.18 provides that the Minister may approve forms for use in making an application for a visa.  The approved form for a protection visa is Form 866: Migration Regulations 1994 (Cth), Sch 1, Item 1126.  Regulation 2.07(3) provides that an applicant must complete an approved form in accordance with any directions on it.”

30                  The approved form required that all questions be answered and stated that, if more space was needed, a sheet of paper or extra pages may be attached or inserted.

31                  As was observed by Finkelstein J, the Regulations do not prescribe the way an application is to be made.  In that regard, at the relevant time, the Regulations required use of the approved form, payment of the prescribed fee (if any) and that the application must be made by an applicant in Australia: see reg 2.07 and Sch 1, Item 1126 Protection (Class AZ) Visa.  It is relevant to observe that under the statutory scheme nothing of importance turned on the date on which the application was lodged.

32                  Although the applicant declared, in the printed form of the application, that the information supplied with the form “is complete, correct and up-to-date in every detail” his declaration was incorrect as he had not completed his claim for refugee status stating, instead, that it was to be provided at a later stage.

33                  The original application of the applicant was plainly incomplete in material respects at the time it was lodged with the Department and therefore was not capable of being a valid application for a protection visa until it was completed.  Under the Act a valid application for a protection visa could not be said to have been made to the Minister prior to the lodging of the claim for refugee status on or about 21 March 1996.  However, a number of matters have led me to conclude that on or about 21 March 1996, but not earlier, the applicant made a valid application for a protection visa.  Those matters may be summarised as follows:

1.      There was no power in the Minister or his delegate to consider an application that was not a valid application (s 47(2)), although the Minister was able to decide that an application was not a valid application (s 47(3)).

2.      Where an application is lodged using the approved form but, as a result of the form not being completed as directed, certain material information is omitted, the form is not a valid application at the date it is lodged.  However, there is nothing in the statutory scheme that provides that the incomplete form cannot become a valid application when the omitted information is supplied, provided that the information is supplied prior to the delegate’s decision.  Whether a defect in an invalid application can be cured during a review of a delegate’s decision by the RRT will depend on how the conflict between Minister for Immigration and Multicultural Affairs v A, Han, Kundu and Samuel and the majority decision in Yilmaz is ultimately resolved.

3.      If an applicant lodged an incomplete application using the approved form but requested that it be held and not processed by the Department until the applicant provided a further document with the omitted information, I can see no reason why the application should not be regarded as having been made when that document was provided to the Department.  Properly viewed, that is what occurred in the present case, although the request that the application be held but not processed is implicit, rather than explicit, from the failure of the applicant to complete the form in respect of his claim for refugee status and stating, instead, that it would be forwarded at a later stage.

34                  In the circumstances, it is my view that the application by the applicant for a protection visa under the Act was to be treated and deemed to have been made only when the claim for refugee status was lodged on or about 21 March 1996.  On that day the applicant provided the “extra pages” which contained his answers to the questions he had not answered in the approved form, thereby remedying any defect in the original application form.

35                  The same issue was considered by Hill J in Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908.  His Honour, for the reasons set out at [50] to [55], concluded (at [55]):

“…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.”

36                  I respectfully agree with the views and conclusion expressed by Hill J.  Similar views on that issue were expressed in Yilmaz by Spender J at [19]-[21] and Gyles J at [72].  I would add that any other approach to the resolution of the issues arising in the present case would be likely to lead to arbitrary, capricious and unjust outcomes under the Act.  Plainly, a court should be loath to arrive at a construction of the relevant statutory requirements having such consequences absent any clear legislative provision or demonstrable legislative intent or purpose that that construction was to apply.  There is no such legislative provision, intent or purpose in the present statutory scheme which contains no express requirement as to the manner in which an application is to be made.  Further, s 54 provides that information to which the Minister (or his delegate) must have regard includes information in a document attached to the application when made and information given after that date under s 55 (s 54).  Thus, unlike the situation that might apply after the Minister’s decision, it is not possible to discern any legislative purpose that might be served by construing the statutory requirements as implicitly requiring that a document provided after the lodging of an incomplete approved form, but prior to the Minister’s decision, cannot form part of the application.  The contrary view would “make a fortress out of a dictionary” which is not the object of statutory construction: see Cabell v Markham (1945) 148 F 2d 737 at 739 and Residual Assco Group Ltd v Spalvins [2000] HCA 33 at [27].

37                  Of course, a different situation may prevail where an application is made without using the approved form (see Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245) but that issue does not arise in the present case.

38                  It might be contended that the subsequent provision of the claim in a separate document did not remedy the earlier omission to answer the questions asked in the application about the claim for refugee status.  For the reasons stated above, and those stated by Hill J in Nader and Spender and Gyles JJ in Yilmaz, I am of the view that a valid application was not made until the claim was lodged.  As the prescribed form specifically provides that if more space is needed extra pages may be inserted or attached as required, the provision of the claim in a separate document can be treated as equivalent to answering the questions as directed.  Further, as Hill J observed in Nader at [54], the “legislative policy is as well satisfied where the application consists of two documents as where it consists of one”.

39                  In any event, for the reasons given by me in Minister for Immigration and Multicultural Affairs v A at 444-445, I am of the view that s 25C of the Acts Interpretation Act 1901 (Cth) would apply so that “strict compliance with the form is not required and substantial compliance is sufficient”: see also Finkelstein J (implicitly) at 460.  Plainly, upon lodging of the claim there was substantial compliance with the directions in the form.

40                  In Samuel, Wilcox J at [15]-[22] considered that the terms of ss 46 and 47 of the Act left no room for the application of s 25C of the Acts Interpretation Act, as Parliament’s intention to insist on strict compliance “could not have been made clearer” (at [17]).  However, his Honour did not find it necessary to express any view about the reservation expressed by me in Minister for Immigration and Multicultural Affairs v A concerning “immaterial omissions”.  In my view, whatever may be said as to the legislative intent concerning material omissions in an approved application, there is nothing in the legislative scheme that would suggest that immaterial omissions in the completed form would not have the benefit of s 25C.  It is to be noted that the Act and the Regulations do not prescribe the form to be used; rather, the form is to be one approved by the Minister.  Thus, I do not accept that the legislature intended that immaterial omissions in completing a form approved by the Minister, and which has not been the subject of any statutory provision, must result in an invalid application.  In my respectful opinion, whether the omission in a particular case is material or immaterial can only be relevant to whether there has been substantial compliance with the form rather than to whether strict compliance, in all cases, was intended by the legislature.  For the reasons given by me in Minister for Immigration and Multicultural Affairs v A, it is my view that a material omission would not constitute substantial compliance.

41                  Accordingly, for the above reasons I am satisfied that, relevantly, there is no legislative intention to exclude the operation of s 25C of the Acts Interpretation Act.

42                  In the present case, for the purposes of s 47, I have treated the application for a protection visa as having been made on or about 21 March 1996 when the claim was provided, and not on 14 March 1996.  On that basis, as at the latter date, if there was an omission to complete the form as directed it was plainly an immaterial omission.  Accordingly, in my view the application of the applicant for a protection visa was a valid application and the decision of the delegate to refuse to grant a protection visa to the applicant was a valid decision.  Consequently, the decision of the RRT to affirm that decision was also a valid decision.

Other grounds

43                  A number of other grounds were argued but in my view they have no substance.  It was submitted that the RRT had failed to engage in the task of assessing the future risk of political persecution as it failed to make definite findings as to relevant past events, such as the 1981 and 1989 arrests.  The findings of the RRT were that the applicant was of no present interest to the authorities in Iran and, therefore, he did not face a real chance of political persecution should he return to Iran.  The required assessment was undertaken but the result was adverse to the applicant’s claim.

44                  It was also contended that there was no basis for, and reasons were not provided for, the RRT’s conclusion that as the applicant received a passport and exit papers he was of no interest at that time to the authorities.  It was open to the RRT to conclude that it is unlikely that the Iranian authorities would grant exit papers to the applicant if he were being sought by them for political reasons.  Whether the RRT arrived at that conclusion was a matter for it, rather than the Court.  Thus, the manner in which the RRT dealt with that issue was open to it on the material and the reasons it gave for its conclusion did not constitute a failure to comply with s 430(1).

Conclusion

45                  For the above reasons the application is to be dismissed with costs.  Finally, I would like to acknowledge the assistance given in this matter by Mr Niall who accepted the brief for the applicant as pro bono counsel under the Court’s pro bono scheme.

Associate:

Dated:              19 July 2000