FEDERAL COURT OF AUSTRALIA

Bal v Minister for Immigration & Multicultural Affairs [2001] FCA 1191

immigration – applicant did not answer all questions on visa application – delegate of the Minister determined application refusing the grant of a visa – applicant applied for review of delegate’s decision to the Refugee Review Tribunal (“the Tribunal”) – Tribunal heard all the evidence the applicant sought to rely on but affirmed the decision of the delegate – applicant claimed that Tribunal could not review a decision which was not lawfully made – delegate did not have power to determine application as it was not a complete or valid application – Court’s discretion to refuse relief – alleged illogicality to the point of error of law – alleged actual bias.

Migration Act 1958 (Cth), ss 45, 46, 47(3), 69, 481(1)

Migration Regulations 1994 (Cth), reg 2.07, 2.10(1)(b)

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, cited

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906, distinguished & considered

Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486, followed & considered

Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273, followed

Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352, cited

Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122, cited

Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347, cited

Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831, referred to

Ullah v Minister for Immigration & Multicultural Affairs [2000] FCA 1321, cited

Walton v Gardiner (1993) 177 CLR 378, referred to

Stuart v Sanderson (2000) 100 FCR 150, referred to

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, cited

Henderson v Henderson (1843) 67 All ER 313, referred to

Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 964, cited

Al Mansour v Minister for Immigration & Multicultural Affairs [2001] FCA 58, considered

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, referred to

Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578, referred to

Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274, cited

Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181, cited

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, referred to

Bakhtyar v Minister for Immigration & Multicultural Affairs [2001] FCA 947, cited

Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71, referred to

Kodagodage v Minister for Immigration & Multicultural Affairs (V290/01 Full Court, unreported, 28 August 2001), referred to

METIN BAL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N6 of 2001

MADGWICK J

29 AUGUST 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

REASONS FOR JUDGMENT

HIS HONOUR:

1                     This is an application under Part 8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 17 November 2000, which affirmed the decision of a delegate of the respondent Minister to refuse the applicant the grant of a protection visa.

2                     The applicant is a citizen of Turkey and arrived in Australia on 21 March 1998.  On 29 April 1998, the applicant purportedly applied to the respondent’s department for the grant of a protection visa on the grounds that he was a refugee as provided for by Art 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.  This application was refused by the respondent Minister’s delegate on 2 May 1998.  On 11 May 1998 the applicant sought a review of the delegate’s decision and ultimately, by his solicitor, provided on 2 October 1998 a detailed Statutory Declaration outlining his claims.  He claimed to fear persecution in Turkey as a Kurd, a Christian, a person of left-wing political opinions and as an imputed supporter of the Kurdish insurgent organisation, the PKK.

3                     The applicant by his solicitor presented three issues.  The first was the contention that his original application to the respondent Minister for a protection visa was not a valid application because the applicant had not answered all of the questions on the prescribed form and therefore the Tribunal did not have jurisdiction to review a decision that was made without power.  The second was that the Tribunal proceeded so illogically that an error of law should be inferred and/or the review process should be regarded as having so miscarried as to indicate a constructive failure to exercise jurisdiction or that there was an error of law in that the Tribunal did not fully consider the applicant’s claim.  The third was that the Tribunal exhibited actual bias by so committing itself to the evidence adverse to the applicant and so belittling evidence that might have assisted him as to indicate a prior judgment that was not amenable to change by cogent argument.

A valid visa application?

4                     In the visa application form the applicant specified that Turkey  was the country to which he did not wish to return.  Question 36 asked “Why did you leave that country?”.  He responded, “I have been repeatedly and severely tortured by police because of my political opinion and because I am Kurdish, and because I am Christian.  Detailed statement follows.” 

5                     Other questions (37-40 inclusive) asked: if he went back,

·        what he feared might happen to him;

·        who he thought would harm or mistreat him;

·        why he thought he would be harmed or mistreated; and  

·        whether the authorities could or would protect him and, if not, why not?

To each of these questions, the applicant answered “See Q36”.

6                     It is an unattractive feature of the case, fortunately made irrelevant, in my opinion, by subsequent events, that the application was made on 29 April 1998 and as soon as 2 May 1998 refused by a delegate of the Minister, despite the indication that a detailed statement in support of the application would follow.  The applicant had arrived in Australia on 21 March 1998, hardly long enough beforehand to make any reasonable person think that the delay in making the application cast such necessary doubt on his genuineness as to warrant that sort of peremptory treatment.  In any case, he was entitled to natural justice at the hands of the delegate, notwithstanding his ability to seek review from the Tribunal:  Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 per Gaudron J at 260-2, per McHugh J at 271-4, and per Kirby J at 283-4.  Unsurprisingly, the applicant did not provide the respondent with the “detailed statement” in support of his application which he had foreshadowed.  Instead he promptly sought a review by the Tribunal.  His application for review was received by the Tribunal on 11 May 1998.

7                     The statutory framework is set out and discussed in detail in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906.  It is enough to mention the following.  A non-citizen who wants a visa must apply for a visa of some particular class:  s 45.  Section 47(3) provides that the Minister is not to consider an application that is not a valid visa application; such an application is valid only if it satisfies the criteria and requirements prescribed under s 46 and by the regulations.  Regulation 2.07 provides, for the purposes of s 46, that an approved form must be completed in accordance with any directions on it.  The relevant form contained the direction “You must answer ALL questions”.  Section 69 provides that the Minister’s non-compliance in Subdivision AA (which includes s 47) does not mean that a decision to refuse to grant a visa is not a valid decision and that it can be set aside if reviewed.

8                     The argument for the applicant was in effect that, by the time the delegate made her decision, the applicant had not answered all of the questions because he had indicated that he did not wish the partial information provided in response to question 36 to stand as his complete answer.  The applicant relied on the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486 which held that, if the questions are not answered, such an application is not valid and that the Tribunal only has jurisdiction to review decisions made on a valid application; accordingly, the Tribunal’s decision was of no legal effect and should be set aside.

9                     The respondent argued that Li is to be distinguished on the basis that, there, no answer at all was given to questions 36 to 40 inclusive.  By contrast, it was submitted that, in this matter, the directions in the application form were substantially complied with, having regard to the purpose of the prescription of the questions in the application form.  The statutory purpose of the relevant section, was said to be that a fair reading of the information provided by an applicant in his or her answers to the questions in the application form should indicate to the Minister or his/her delegate whether an applicant is making a claim to fear Convention persecution if returned to the country of his/her nationality and on what basis:  Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273 at paras 22-23 per Katz J, following Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 at 354 per Hill J, Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122 at para 15 per Tamberlin J, and Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347 per Heerey J.  Alternatively, if all questions must be answered, they may be impliedly answered: Shahabuddin at para 30; Myint at para 15, and they were so answered here. 

10                  Yilmaz was referred to by counsel for the respondent Minister only as indicating discretionary reasons why the Court should refuse relief.  No reliance was placed on Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831 as this was decided after the conclusion of the hearing.

11                  In my opinion, the applicant had not made a valid application to the Minister for the grant of a protection visa.  An application in this context is not simply a form which indicates that a claim for refugee status is being made, or even what kind of a claim for refugee status is being made.  It is also the applicant’s assertion of the reasons why his/her particular claim to refugee status should be granted.  In my view, questions 39 and 40 make this clear.  Respectively, they ask:

“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?”

12                  As a matter of principle, it seems to me that until a putative applicant has indicated in answers to the questions in the form (or in some additional document referred to therein) that what he or she wants to say on this subject has been said, there is simply no application at all.  In Yilmaz Spender J said at paras 19 and 20:

“In the light of the above statutory regime, when a person seeking a protection visa submits an “application” which, in respect of the claims for protection under the Refugees Convention, notes “statement to follow”, it is not at that time a valid application.  It is inchoate.  The duty of a delegate of the Minister is not to consider it:  s 47(3) of the Act.

If, before the making of a decision of the delegate, the promised information is supplied, in my opinion the amalgam of the original document with the claims foreshadowed in it, and the document expressing the claims that had been foreshadowed, constitutes a valid application, and the delegate is to exercise the powers referred to in s 65 of the Act in relation to it.”

Gyles J said at para 70:

“Indeed, where an applicant omits essential information from a prescribed form and, as occurred here, writes “statement to follow” in the relevant portions of the form, there is much to be said for the view that an application has not been made at all until the statement to follow is received (cf Heerey J in Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421 at par [49]).  This way of looking at the matter was not pursued in any detail in the submissions.  In any event, whether the application in its original form was made but was invalid, or was not made at all, the Minister was obliged not to consider it on the merits whilst it remained in that form.  If it was not made, there was nothing to consider.  If invalidly made, s 47 spells out what would otherwise have been the position in any event.”

13                  That is not to say that an applicant needs to say much.  He or she may be content to outline the claim only in general terms (in some cases, an applicant may only be capable of so outlining it).  I respectfully agree with Katz J’s approach in Shahabuddin in this regard.  A valid application may be made somewhat informally, so long as the form’s directions are substantially complied with, so as to necessitate the Australian government’s investigation of it.  But that proposition does not carry any implication that an application form, clearly and deliberately left incomplete pending the intended supply of detailed facts and reasons, becomes, merely because something can be understood of the nature of the claim, a completed and valid application, so as to enable its rejection before the applicant has had a reasonable chance to complete it.  An approach intended to accommodate the difficulties of some refugees should not be made an avenue to deny succour to others.  Further, although answers to the questions in the application form may be impliedly answered by an applicant, there must be some clear objective material from which the necessary implication may be drawn, which was not the case in this application. 

14                  In any case, here, there could not be said to be substantial compliance:  as to the claim related to “political opinion”, the answer in the form does not indicate what political opinion is referred to or even whether it was actual or imputed.  No sensible judgment could be made about that claim on the basis of what was in the answers to the application form’s questions.

15                  The application purportedly considered by the delegate was not a completed application.  In that sense there was no application and the delegate had no business rejecting, as a result of s 47(3), what was in effect a partially completed application.

The Full Court decisions in Yilmaz and Li

16                  Yilmaz dealt with a situation where, sequentially:

(i)                  the application form lodged entirely omitted an essential requirement:  no basis of the claim for protection was apparent (see Yilmaz at para 69);

(ii)                a decision was made by the delegate to refuse the visa sought;

(iii)               a statement was furnished to the Minister setting out the applicants grounds for protection; and

(iv)              an application for review of the decision was made to the Tribunal.

17                  Spender J held, at para 24, that the Tribunal had:

“a power and jurisdiction to make its own decision on the by-then-complete application and to substitute its own decision if … the earlier decision maker had not been authorised to make the decision that it did”.

Gyles J, at paras 81-96, held that:

(1)               Section 69 relieves against invalidity based upon a breach of s 42 and the opening words of s 415 did not indicate to the contrary.

(2)               The approach taken in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213, namely that, for the purposes of administrative review bodies, a “decision” that they might review means a “decision in fact made, regardless of whether or not it is a legally effective decision”; so that a defect at the time of decision which could not be cured as such can be cured by an administrative body making the decision as a review.

(3)               Section 415, which permits the Tribunal to exercise the powers and discretions of the Minister and make its own decision on the merits will cure the defects that rendered the original decision invalid.  The Tribunal is not confined to declaring invalid an application which is invalid.

(4)               “This was consistent with general administrative law principles”, citing, inter alios, Mason J in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 (omitting references):

“…the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness.  The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing.  But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance.  Certainly this view has been taken in a number of cases – notably by the Privy Council in De Verteuil v Knaggs;  Pillai v Singapore City Council and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission and King v University of Saskatchewan;  cf Denton v Auckland City and Leary v National Union of Vehicle Builders where the contrary view was taken.  In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada:  first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance;  and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing – in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.”

18                  In Li the facts were that each applicant simply referred to an intended “ATTACHMENT” in answer to all relevant questions in the application form, and one question indicated as well:  “Statement will be forwarded later”.  Nothing further was ever supplied to the Minister and a detailed submission ultimately supplied to the Tribunal did not purport to be the attachment omitted from the original application form.  It was held that the application form was never completed and lodged at an Immigration Office as the Act and Regulations required.  Section 69 could not save the delegate’s decision from invalidity, and s 415 could not “support a decision on the merits in circumstances where no valid application has ever been lodged”.  It would seem that the Court considered that the Tribunal could and should have set aside the delegate’s decision in the case of each applicant, but could do no more.  The Court distinguished Yilmaz.

19                  In Thayananthan, the sequence of events considered by another Full Court was:

·               application form lodged; no specific claims set out; relevant questions answered:  “See statement to be forwarded”;

·               statutory declaration setting out detailed claims forwarded to Minister’s department; and

·               thereafter a delegate refused the grant of a protection visa.

The Full Court followed Yilmaz, which it regarded as determining the matter.

20                  It seems to me that I am bound by Li, although, if I were free to do so, I would prefer to decide the case with the same result as occurred in Yilmaz, since I regard the reasoning of the majority as compelling.  I note that Tamberlin J in Ullah v Minister for Immigration & Multicultural Affairs [2000] FCA 1321 (a decision given before Li was decided) took a similar approach to that in Yilmaz.  There is, in my opinion, some tension between the approach of the majority in Yilmaz and that of the Full Court in Li.  With respect, in my opinion the reasoning in Yilmaz is more persuasive.  The decision in Li hinges on the point that a failure to answer the questions in the application form cannot be cured by later supplying information other than at an office of the Minister’s department, because Reg 2.10(1)(b) requires that the application be made at a departmental office, and s 69 could not validate an application not so lodged.  However, the authority of a regulation can rise no higher than its statutory source.  The statutory basis for the regulation was, as the Full Court held in Yilmaz, s 45.  But s 45 is in subdivision AA and s 69(1) provides:

“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.”

21                  I am however bound by the ratio of Li because, as in Li, the further information was provided by the applicant to the Tribunal.  It follows that the application cannot be regarded as having been completed and any associated error cured by the lodgment of the additional material with the Tribunal.

The Court’s ability/discretion to grant relief

22                  However, it does not follow that this Court can or should lend its aid and processes to an applicant who wants to have his cake and eat it.  Yilmaz was not concerned with the discretionary refusal of relief by the Court.  No question of a discretionary refusal of relief was apparently argued in Li.  No doubt because of those matters, the Minister submitted that, complete or not, there had been substantial compliance with the legislative requirements.  As I have indicated, in my opinion, that is not so.  The Minister submitted in the alternative that the Court should, in its discretion refuse relief.

23                  Once the applicant knew of the delegate’s premature rejection of his claim, he chose not to press his right to ask an appropriate court to correct the delegate, but rather to invoke the investigative obligations and powers of the Tribunal.  Thereby he obliged the Tribunal to expend much official time and public money on his case.  He also thereby obtained a very full investigation of his claims, the capacity to support them with anything he chose to place before the Tribunal and the right to approach this Court and/or the High Court, to correct any legal error by the Tribunal.  In every practical sense, the delegate’s overreaching was thereby remedied.  Had the applicant originally approached this Court to remedy the undue haste of the delegate of which he now complains, he could have obtained, in the result, in substance no more than what he has already had, a fair and full investigation of his claims to Australia’s protection of him as a refugee.  Nor did the applicant put to the Tribunal that it had no jurisdiction, because he had not completed his initial application.  He waited to see how he fared at the Tribunal’s hands.

24                  It offends common sense and justice that the applicant should now be able to avoid the consequences, which have turned out to be adverse to him, of the very process that he chose to invoke and to continue, because of the already substantially remedied error of the delegate.  If such a ploy should be permitted to succeed, the applicant would be free to apply again for a protection visa and, if refused (as would in the circumstances detailed below be unsurprising) free again to detain the Tribunal (and perhaps this Court too) with what may well be a meritless case for protection.  On such an assumption, he would also acquire rights to stay in Australia years longer than is actually warranted by Australia’s international, humanitarian obligations and legislatively mandated domestic immigration policy.  Such scenarios are sometimes unavoidable on humanitarian grounds, but the Court should not gratuitously or unmeritoriously provide occasions for their playing out.

25                  The case is, in my opinion, analogous to one of abuse of process.  In a proper case, the Court is not powerless to avoid manifest unfairness or bringing the administration of justice into disrepute.  In Walton v Gardiner (1993) 177 CLR 378 at 392-3, by majority the High Court held (per Mason CJ, Deane and Dawson JJ):

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. ... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.  The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 as ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’.”  (emphasis added)

These remarks, in my view, not only delineate a jurisdiction in a superior court, they also give guidance as to the manner of its exercise.

26                  In Stuart v Sanderson (2000) 100 FCR 150, I considered the application of the Anshun estoppel principle to administrative proceedings.  The principle as approved 20 years ago by the High Court in Port of Melbourne Authority v Anshun Pty Ltd  (1981) 147 CLR 589, was originally stated over 150 years ago by Wigram VC in Henderson v Henderson (1843) 67 All ER 313 at 319:

“where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

Of that principle, I observed at 156:

“The principle is thus not founded only upon the need to restrain costs between parties in dispute, although that is one of its purposes (Bryant at 298, and Trawl Industries v Effem Foods (1992) 36 FCR 406 at 423 per Gummow J).  It is also founded upon the need to avoid ‘conflicting’ judgments (Anshun at 603 - 604), to ensure finality of litigation (Anshun at 609, per Brennan, and Bryant at 299), to prevent parties from gaining an advantage in the use of the Court’s time (Handley at 938) and, in the more global expression of Murphy J “to preserve the orderly administration of justice” (Anshun at 605); that expression might include, for example, the maintenance of the appearance of good order, so as to sustain public confidence in curial disposition of disputes.

…

It was submitted by the applicant that the principle of Anshun estoppel ought not be applied to administrative law cases.  In support of this submission it was noted that the principle was first adopted, in the Anshun case, in the context of litigation as to a commercial transaction and that there have been few instances of its application in the field of administrative law (though the principle has been applied in at least some administrative law cases, for example, Minister for Immigration v Karas (1992) 42 FCR 406 and Sawyer v Department of Primary Industry (1992) 38 FCR 375).

…No principle or authority was cited to indicate that the capacity of a court to prevent an abuse of its processes and to safeguard the orderly administration of justice ought to be blunted merely because the supposed right which is sought to be vindicated before that court is derived from statute rather than the common law.”

And, at 158-9:

“… although the doctrine of Anshun estoppel may be ultimately derived from the Court’s power to prevent an abuse of its process, that does not of itself demand that the principle be applied on an entirely open-ended, discretionary basis…

… where a party has behaved unreasonably in not raising a matter in the earlier [curial or administrative] proceedings, that party will in general not be permitted to later litigate it, unless there are special circumstances”.

27                  This case does not of course fall within either issue or Anshun estoppel principles.  But their analogy is in my opinion compelling.  The respondent Minister would needlessly be “twice-vexed” if the applicant should be permitted to succeed on this ground.  Such would permit the antithesis of what Murphy J in Anshun said was one of the principles on which the Anshun doctrine was founded, namely, “to preserve the orderly administration of justice”. 

28                  All the policy reasons referred to in Yilmaz as justifying the approach there taken are relevant to the present discretionary issues.  In Yilmaz Gyles J, with whom Spender J agreed, said at para 95 and 96:

“This construction of the Act seems to me to best accord with a rational and coherent system of review on the merits of adverse decisions as to protection visas.  It cannot be assumed that an applicant will have the knowledge or qualifications to comply with all the statutory requirements in making an application and may not have immediately to hand relevant information from overseas.  If, in circumstances such as the present, an applicant receives notice that a decision has been made rejecting the application on the merits, it can be taken by the applicant that there will be a review of the decision by the RRT as if it were the original decision-maker but on the materials before it rather than that which was before the original decision-maker.  If there is, then the applicant has received the opportunity which the legislation provides, and there is no rational basis upon which the applicant should be entitled to a second chance.  In the present case, the RRT did afford a merits review as sought by the applicant.  It would be anomalous, in those circumstances, for the applicant to be able to complain to the Court that he was afforded the opportunity he had sought.  He invoked the jurisdiction of the RRT and can hardly have the opportunity to complain when it was exercised.  He has received the “fair deal” he was entitled to expect when the whole legislative scheme, including full merits review, is considered (Wu v Minister for Immigration (1994) 48 FCR 294, 298-300 (not affected by appeals)).  It is not necessary for the purposes of this case to consider the position if there is invalidity in the application which is not cured.

This conclusion is also consistent with general administrative law principles.  In considering a related, but not identical, question in Twist v Randwick Municipal Council (1976) 136 CLR 106…

Jacobs J said (at 119):

“I do not think that it would at all accord with the legislative intention that an owner should be able to ignore rights of appeal … and instead rely on an absolute invalidity in the order which a council had made.”

Put another way, the existence of a full review on the merits is an integral part of the statutory scheme.”

29                  Accordingly, in my opinion, I should exercise the discretion granted to the Court by s 481(1) of the Act and deny to the applicant the Court’s relief as a result of the error by the Minister’s delegate.  See also Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 964 per Katz J at paras 20-22, generally affirmed on appeal in [2000] FCA 1737, in support of the exercise of the discretion to refuse an applicant relief in similar circumstances to those of this case.

30                  Conformably with this view, I should not have expressed an opinion on the legality of the delegate’s actions, except for the importance of emphasising to the relevant administrators that they are not free to regard a manifestly, deliberately uncompleted application as if it were a completed one.

Other alleged errors: illogicality to the point of error of law and actual bias

31                  The second and third matters complained of by the applicant, illogicality to the point of failure to exercise jurisdiction, relying on Al Mansour v Minister for Immigration & Multicultural Affairs [2001] FCA 58, and/or actual bias, were said to be evidenced by the same materials.

32                  The first instance concerns the Tribunal’s alleged finding that the applicant was not of Kurdish ethnicity.  The Tribunal in an informal way tested the applicant’s Kurdish language skills and cultural knowledge by resort to the Turkish interpreter available at the hearing and by reference to scholarly ethnographic materials on Kurdish culture.  The first objection taken is that ethnicity does not depend on linguistic or cultural knowledge.  However, the Tribunal’s relevant conclusions were:

“Overall, on the basis of Mr Bal’s evidence, I could not be satisfied that he is in fact Kurdish.  However, even if Mr Bal is of Kurdish origin, I do not accept that he identified as Kurdish in Turkey, or that he was perceived as Kurdish.  In particular, I do not accept that Mr Bal was perceived to be a supporter of Kurdish separatism.  I will deal further with Mr Bal’s claims in relation to this issue below.

I have considered whether Mr Bal would be at risk of persecution in Turkey if he is of Kurdish background.  The independent evidence before me indicates that Kurds who publicly or politically assert their Kurdishness and who are suspected of supporting Kurdish separatism, are at risk of persecution in Turkey.  That said, the independent evidence does not suggest that all Kurdish people in Turkey are at risk of persecution.  The independent evidence indicates that Kurds who are not seen as supporting Kurdish separatism are not at risk of persecution merely because they are Kurdish.  In the circumstances, I could not be satisfied that Mr Bal has a well-founded fear of persecution merely because of a Kurdish background unless he was perceived as supporting Kurdish separatism.

There are a number of factors that lead me to conclude that Mr Bal was not a supporter of Kurdish separatism.”

33                  Thus, the Tribunal quite correctly identified that it was the perceptions of others in Turkey as to the applicant’s Kurdish background and alleged support for Kurdish separatism in Turkey that were the crucial findings.  Further, the Tribunal, quite tenably, took a dim view of the applicant’s credibility:

“In my view, Mr Bal’s evidence was confused, implausible, inconsistent with the independent evidence and generally unconvincing.  I am of the view that Mr Bal’s evidence lacked credibility and that he fabricated claims in an attempt to create for himself the profile of a refugee.

… information received from DFAT concerning the criminal record check provided to the Tribunal by Mr Bal is that his conviction was for embezzlement and breach of confidence, and not for political crimes.”

If there was any illogicality in the Tribunal’s approach, in my view it did not begin to assume any legal significance.  Nor, alone or with other matters, does it begin to evidence actual bias.

34                  Next, the Tribunal member had before her letters from two Australian associations.  One, from the Australian Kurdish Association Inc., said, “We write to confirm that Mr. Metin Bal (01-03-1959, Kars) is from Kurdish origin”.  The other was from a body styled “Australian Turkish and Kurdish Community Services Coop”.  It referred to the applicant as an active member and responsible person.  It continued, “We are familiar of the suffering of people of Kurdish backgrounds and the problems and the oppression that they are faced with.  We hope that appropriate consideration will be given in the assessment of his application.”

35                  The member had accepted that the applicant was born in “the predominantly Kurdish province of Kars”.  Of the first letter, she said:

“I note the letter he provided to the Tribunal from the Australian Kurdish Association.  However, this letter does not explain how the Association has concluded that Mr Bal is of Kurdish origin.  The text of the letter implies that the Association has reached this view on the basis that Mr Bal was born in Kars.  In any event, the Association’s letter states no more than that the Association accepts that Mr Bal is of Kurdish origin.  In my view, the letter is not evidence that Mr Bal identified as Kurdish in Turkey, or that he was perceived to be Kurdish.”

I do not see that there was anything “inherently illogical” in such an approach, as the applicant submitted.  As indicated earlier, the important issue for the Tribunal member was whether the applicant was identified as Kurdish in Turkey.  The Tribunal member made no comment on the second letter.  Nothing of legal significance hinges on that.  Similar comments might well have been made.

36                  An odd circumstance explains the next matter.  A lawyer advising the Australian Embassy in Ankara first indicated that he was “99.9 per cent certain” that documents, which evidenced a claim by the applicant to have been arrested in a political demonstration and to be wanted for prosecution in respect thereof, were genuine.  Later, he said that this was just “my feeling, my guess”.  The Tribunal member paid no attention to the lawyer’s opinion.  In my opinion, it was within the bounds of a lawful reaction to the material, to take that course; any careful and open-minded decision-maker might have done the same.

37                  Other submissions about factual matters were relied on to suggest that there was no logical basis at all for the decision and this showed that the real question had not been addressed.  It was suggested the case, in this respect, was like that in Al Mansour in which Lee J intervened, relying on remarks of Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at para 154 and on the decision of a Full Court of this Court in Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578.  The respondent in answer cited many authorities, and particularly the Full Court decisions in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 and Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 to suggest that Lee J’s approach was legally flawed.  However, the confirmation in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 of the necessity not to read down paras (b) (c) and (e) of s 476(1) may well mean that the essence of his Honour’s approach is rescuable, and probably does mean that the result in such an extreme case as Al Mansour would be achieved by a differently expressed rationale.  There is a difference between Wednesbury unreasonableness, shut out of this Court by s 476(2), and at least some categories of decisions having no rational basis whatever (the most obvious example is a decision having no evidentiary basis at all), even if, in a particular case, bulletproof enunciation of the relevant legal rationale should prove difficult; c.f.  French J’s resort to a “meta principle” of rationality in Bakhtyar v Minister for Immigration & Multicultural Affairs [2001] FCA 947.  However, this case is far from being an apt vessel for an attempt to chart the further reaches of this Court’s jurisdiction under s 476 in cases that really do bear a consideration of whether there is any rational basis for the decision sought to be reviewed.

38                  As counsel for the respondent put it, the factually based criticisms of the Tribunal’s decision seem somewhat fanciful in the light of the Tribunal’s detailed and careful consideration of the applicant’s case.

39                  I should add a word on actual bias.  Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71confirmed that actual bias need not connote moral delinquency on the part of the decision-maker.  It remains true however that there are few errors that a conscientious decision-maker would more wish to avoid.  In that sense, it is true that, as the respondent submitted, actual bias remains a serious allegation and one that should not be made by a lawyer unless there is some real basis for arguing it.  Proof of incapability of changing one’s mind must be available.

Disposition

40                  For the reasons given, the application must be refused with costs.

Addendum

41                  The decision and reasoning in Yilmaz and Katz J’s approach to discretionary relief in Wimalaratne were yesterday affirmed as correct by another Full Court in Kodagodage v Minister for Immigration & Multicultural Affairs (V290/01, unreported, 28 August 2001) in a short ex tempore decision.  The principles espoused in Yilmaz were apparently regarded as having been “in part” accepted in Li.  Li however remains binding on me.

Associate:

Dated:              29 August 2001