FEDERAL COURT OF AUSTRALIA
James v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1383
MIGRATION – application to Refugee Review Tribunal for review of decision by delegate of respondent Minister refusing to grant a protection visa – where applicant failed to complete application form in full - whether application for grant of visa had been valid
Migration Act 1958 (Cth) ss 45, 46, 47, 54, 55, 65 and 476
Migration Regulations 1994 (Cth) reg 2.07
Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 referred to
A v Pelekanakis (1999) 91 FCR 70 referred to
Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 referred to
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 referred to
Nie v Minister for Immigration and Multicultural Affairs [2000] FCA 347 at [13] referred to
Shahabuddin v Minister for Immigration and Multicultural Affairs [2001] FCA 273 at [24], [29] referred to
Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at 354 referred to
Myint v Minister for Immigration and Multicultural Affairs [2001] FCA 122 referred to
Bal v Minister for Immigration and Multicultural Affairs [2001] FCA 1191 at [12], [13]-[14] referred to
Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189 at [35] applied
IMEDLA JEYAMALAR JAMES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
V1030 of 2001
WEINBERG J
8 NOVEMBER 2002
MELBOURNE
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
VICTORIA DISTRICT REGISTRY |
V1030 OF 2001 |
|
BETWEEN: |
IMEDLA JEYAMALAR JAMES APPLICANT
|
|
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS RESPONDENT
|
|
WEINBERG J |
|
|
DATE OF ORDER: |
|
|
WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
VICTORIA DISTRICT REGISTRY |
V1030 OF 2001 |
|
BETWEEN: |
IMEDLA JEYAMALAR JAMES APPLICANT
|
|
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS RESPONDENT
|
|
JUDGE: |
WEINBERG J |
|
DATE: |
|
|
PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”), as it then stood, for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 8 August 2001. By that decision the RRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the applicant a protection visa.
2 The application to this Court was filed on 20 September 2001. It is therefore to be considered in accordance with the provisions of the Act as they applied prior to the amendments which took effect on 2 October 2001. Accordingly, it does not raise for consideration the effect of the privative clause provisions introduced on that date.
background
3 The applicant is 34 years of age. She is a citizen of Sri Lanka. She arrived in Australia on 3 December 1999 on a visitor visa valid until 3 January 2000. On 22 December 1999 she applied for a protection visa. The application form which she completed on that date instructed, inter alia, that she “tell us below everything about why you think you are a refugee.” It then contained a series of questions which sought to obtain further details of her claim to be a “refugee”.
4 Before setting out the questions, and the answers which the applicant provided, it should be noted that the form provided the following direction:
“In answering the questions below, you should tell us if you think any events you refer to are because of:
· your race
· your religion
· your nationality
· your membership of a particular social group
· your political opinion
· other reasons.”
5 The form also directed that the applicant should, wherever possible, provide dates, locations, etc in respect of any events/occurrences to which she referred and that she should provide any evidence that she had which supported her claims.
6 The relevant questions and answers were as follows:
“I am seeking protection in Australia
so that I do not have to go back to:
(Give name of country or countries)
A: Sri Lanka
Why did you leave that country?
If you need more space to answer, insert extra pages as required.
A: I left as I was unwilling to continue living in the conditions to which I was subjected and over the fear of the harm that would come to me.
What do you fear may happen to you if you go back to that country?
If you need more space to answer, insert extra pages as required.
A: I fear the harm that would be done to me as a young Tamil girl and this became increasingly fearful with my having to locate to employment in a predominantly Sinhala town – Homagama.
There was no protection to a young girl like me in such situation. I have discussed my fears with the adviser. In view of the time limits of the Visa and the regulations, he has advised that the application be lodged forthwith and details of the claim be submitted later once they are completed. I will do so soon.
Who do you think may harm/mistreat you if you go back?
If you need more space to answer, insert extra pages as required.
A: The Sri Lankan forces.
Why do you think they will harm/mistreat you if you go back?
If you need more space to answer, insert extra pages as required
A: Due to ethnicity and political attitudes.
Do you think the authorities of that country can protect you if you go back? If not, why not?
A: I have no faith that the Sri Lankan forces or authorities would protect me.”
7 At the conclusion of the form the applicant was required to make a declaration to the effect that the information supplied on or with the form was “complete, correct and up to date in every detail”.
8 On 10 January 2000 the Department of Immigration and Multicultural Affairs wrote to the applicant acknowledging receipt of her application for a protection visa. The Department observed:
“In considering your application, an officer of the Department may contact you to arrange an interview or to seek further information, if this is needed.
PLEASE NOTE: Information received up to the time a decision is made will be taken into account in that decision. It is expected that all claims and supporting material will be provided at the time of lodging the application. Section 55(2) of the Migration Act provides that the Minister is not required to delay making a decision because the applicant might give, or has told the Minister that s/he intends to give, further information.”
9 On 22 March 2000 a delegate of the Minister rejected the applicant’s claims under the Refugees Convention. In the reasons which were provided the delegate said:
“3.1.2 The applicant has provided brief answers to Questions 36-40 of Part C of the Protection Visa application form, which relate to reasons for claiming to be a refugee (B1: Folios 9-11). In summary, the applicant claims that:
· She left Sri Lanka “as I was unwilling to continue living in the conditions to which I was subjected”;
· She fears that harm would be done to her “as a young Tamil girl” working “in a predominantly Sinhala town – Homagama”;
· “There was no protection to a young girl like me in such a situation”, and she has “no faith that the Sri Lankan forces or authorities would protect me”.
3.1.3 In addition, the applicant through her migration representative indicated in the application form that “details of claim” would be provided later. However, no further information has been received by the Department to date. Given that the applicant has had almost three months to supply the additional information and the fact that the Migration Act stipulates that the Minister is not required “to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information (Subsection 55(2) refers), I consider it reasonable to assess the Protection Visa application on the basis of the available information on her file.”
10 The delegate then considered a body of “country information”, and concluded:
“3.2.3 Based on the above and other country information I consider that the applicant may not wish to return to Sri Lanka due to the civil conflict and terrorist activities occurring there. The applicant like virtually everyone in Sri Lanka is exposed to the risk of becoming a victim of random violence in civil conflict situation. However, I do not accept that the applicant has a profile which results in her being of any adverse interest to the Sri Lankan authorities. Many thousands of Tamils live in Colombo and I do not accept that being a Tamil of itself results in adverse interest. Having considered the applicant’s circumstances overall I find that she does not face a real chance of persecution upon return to Sri Lanka now or within the reasonably foreseeable future.”
The RRT’s findings and reasons
11 The applicant sought review of the delegate’s decision before the RRT. In support of her application, she filed a detailed statutory declaration and comprehensive written submissions. It set out in copious detail the applicant’s history, and identified with specificity the basis upon which she claimed to have a well-founded fear of persecution. Accordingly, the material before the RRT was very different from that which had been before the delegate.
12 It should be noted that one of the matters raised before the RRT on behalf of the applicant was a claim that the delegate had erred in considering her application for a protection visa. It was submitted that the form that she had completed, on 22 December 1999, did not constitute a valid application. As such, the Minister had no power to consider, let alone refuse, that application.
13 The RRT did not accept that submission. It noted that although there had been several cases decided in this Court in which it had been held that a failure to provide relevant information prevented an application from being a “valid application”, those cases were distinguishable. They all involved applicants who had failed to answer the critical questions entirely, and not, as in the present case, an applicant who had answered those questions, albeit in a manner that lacked detail.
14 In its findings and reasons, the RRT specifically addressed the challenge to the delegate’s decision based upon the contention that there had not been a “valid application” lodged. It said:
“The applicant’s adviser put forward the argument that the Tribunal may not have jurisdiction to consider the application as the original application may be invalid. The adviser in a letter to the Department dated 23 December 1999 indicated at the time of lodgement that he intended to provide a “Statement of Claim” but that due to heavy work commitments, he would not be able to prepare one to accompany the application. He had advised his client to submit her application before the expiry of her substantive visa which she did. In his letter, the adviser did not provide a timeline for the submission of the “Statement of Claim” but indicated that it was his clashing commitment to “complete several outstanding Court matters prior to the holiday period” that prevented him form doing so at the time. As was indicted earlier, a Departmental officer sent an acknowledgement letter on 10 January 2000 in which he specifically cited s.55(2) of the Act. Section 55 is as follows:
55 Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
No further material was submitted prior to the delegate making his decision on 22 March 2000.
The cases of MIMA v Li and MIMA v Kandu [2000] FCA 1456 (Ryan, Sackville & Emmett JJ, 19 October 2000) and the earlier judgement in MIMA v Yilmaz [2000] FCA 906 (Spender, Marshall & Gyles JJ, 14 July 2000) clarify that an application for a protection visa that omits the required information relating to the applicant’s claims is invalid. That invalidity can be rectified by providing the missing information to the Department at any time but cannot be remedied by provision of the additional information to the Tribunal only. In the above cases, the applicants did not provide responses to the prompt questions on their application forms but indicated that they would be supplying details of their claims later and/or referred to an attached submission that was not attached as being the source of their answers.
The situation in this case can be distinguished from the above. The applicant has provided responses to the prompt questions on the form sufficient to indicate the nature of her fears, their source and why she had that fear. Her actual responses to the prompt questions are reproduced at pages 5 and 6 of these Reasons for Decision. In her response to one of the questions, namely what she fears may happen to her if she goes back to Sri Lanka, she states at the end of the response that details will be lodged “soon”. There is no requirement in the legislation for a “Statement of Claim” to be submitted along with the application. The “holiday period” had well and truly expired by the time the delegate made his decision, more than two months after the acknowledgement letter with its bolded paragraph warning of the provisions of s.55(2). There is no onus in the Act for the delegate to wait indefinitely for a promised submission or to give a deadline for its submission although, in the Tribunal’s view, such a letter might be a good administrative practice. In this case, the applicant’s adviser is an experienced solicitor with many years of practice in migration law who would have been aware of the need to expeditiously provide any further information to the Department once he received that acknowledgement letter. The Tribunal is satisfied that notwithstanding the clear intention foreshadowed by the applicant that further information will be provided, that the application form has been fully completed and that therefore, the application for a protection visa should be considered to be a valid one.”
The application to this Court
15 There was only one ground of review argued in support of the application to this Court. It was submitted that the proceeding before the RRT had been a nullity because the decision of the delegate had been made in response to an application which was not, relevantly, a “valid application”.
16 In order to understand the nature of this ground, it is necessary to set out in some detail certain provisions of the Act, and of the Migration Regulations 1994, as they stood at the time this application was filed. Some of those provisions have been repealed, or amended, while others continue to apply in their original form. For ease of reference, those sections which have been amended or repealed have been identified.
17 Section 45 of the Act, as it stood prior to October 2001, relevantly provided:
“(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.”
…”
18 Section 46 has also been amended. That section, as it stood prior to October 2001, set out the requirements for a valid visa application. Relevantly, it took the following form:
“(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);
…”
19 Section 47 relevantly provides:
“(1) The Minister is to consider a valid application for a visa.
….
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
…”
20 Section 54 has not been amended. It requires the Minister, in deciding whether to grant or refuse to grant a visa, to have regard to all of the information in the application.
21 Regulation 2.07 of the Migration Regulations 1994 (Cth) is headed “Application for visa – general”. That regulation provides:
“(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3) An applicant must complete an approved form in accordance with any directions on it.”
22 The principal contention advanced on behalf of the applicant was that the information contained in the form signed by her on 22 December 1999 had been so devoid of content as to prevent that form from being regarded by the delegate as a “valid application”. Given that s 47 required the Minister not to consider an application that was not a “valid application”, the delegate’s decision had been a nullity. Accordingly, so it was submitted, the RRT lacked jurisdiction to review that decision.
23 The respondent accepted that if the applicant made good her contention that the application form which she lodged was not a valid application, the decision of the RRT would itself be a nullity. However, it was submitted that the information provided in the form had been sufficiently detailed to enable the delegate to assess the claims made. Accordingly, a valid application had been lodged.
24 The respondent submitted, in the alternative, that the relief sought by the applicant should be refused in the exercise of the Court’s discretion. That was because she alone was responsible for the paucity of information initially provided in support of her claim. She should not be entitled to “have her cake and eat it too”. Moreover, she had been accorded a full hearing, on the merits, by the RRT. She had, by that stage, provided detailed material in support of her claim. No criticism had been levelled at the substance of the RRT’s reasons. It would be wrong, in these circumstances, to permit the applicant to take advantage of what was said to be a technical argument, devoid of any merit.
Consideration of the issues
25 In several cases decided in this Court it has been held that a failure to provide the requisite information in an application for a protection visa will prevent that application from being regarded as “valid”.
26 The genesis of the principle upon which the applicant relied appears to have been the decision of the Full Court in Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435. In that case the respondent’s solicitors lodged an incomplete application for a protection visa, omitting any information as to the reasons why he claimed to be a refugee, and stating that the information would be provided “soon”, in the form of a statutory declaration. Shortly after the application was lodged, a delegate of the Minister refused the grant of a protection visa. The delegate gave no prior notice of his intention to deal with the case without waiting for the supplementary material.
27 The primary judge quashed the delegate’s decision on the grounds that the delegate had failed to have regard to all of the information in the application, had denied procedural fairness, and had acted in a manner in which no reasonable decision-maker would have acted: A v Pelekanakis (1999) 91 FCR 70.
28 The Minister appealed to the Full Court. By majority, (Merkel and Finkelstein JJ) it was held that the delegate’s decision to refuse a protection visa contravened the requirement expressed in s 47(3) not to consider an invalid application, and was not authorised by s 65 of the Act. Accordingly, the decision was invalid. That did not, however, prevent the respondent from now making a valid application for a protection visa.
29 In Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 a Full Court, comprising Ryan, Sackville and Emmett JJ, dealt with an almost identical situation. The Court held that the Act manifested a clear intention that lodgement of an application in the prescribed form be an essential pre-condition to the exercise of the Minister’s power to consider, and to grant or refuse, a visa. It noted that while by virtue of s 25C of the Acts Interpretation Act 1901 (Cth) substantial compliance with the requirement under the Act to lodge an application in the prescribed form might be sufficient to satisfy such a precondition, there could be no substantial compliance where there had been a failure to answer the written questions on the prescribed form. It went on to observe that although such failure could be cured by the applicant foreshadowing in the application that the required information would be supplied at a later time, and then sending such information to the Department, the failure was not cured by the applicant sending the information to the RRT after the delegate had made the initial decision.
30 The Full Court in Li distinguished an earlier decision of a Full Court in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495. In that case the majority (Spender and Gyles JJ, Marshall J dissenting) accepted that an application for a protection visa which contained no information directly relevant to the claim was not a “valid application” within the meaning of s 46. However, the majority concluded that an application in that form could be rendered valid by the applicant providing to the RRT additional and necessary information sufficient to rectify the original defect.
31 The RRT in the present proceeding noted the existence of this line of authority. However, it considered that the applicant’s case differed significantly from the three cases set out above. Whereas none of the applicants in those cases provided answers to any of the critical questions asked, the applicant in the present case had answered those questions, albeit in a manner which might be said to lack detail.
32 In the RRT’s view the fact that the applicant, in the present proceeding, had provided at least partial answers to the critical questions meant that the principles set out in the above mentioned cases were inapplicable. The question to be determined in the application to this Court is whether the RRT was correct in arriving at that conclusion.
33 In answering that question it is necessary to consider a number of cases which are directly relevant to that issue. In Nie v Minister for Immigration and Multicultural Affairs [2000] FCA 347 the applicant completed the relevant questions in the following way:
“Question: 35 I am seeking protection in Australia so that I do not have to go back to: (Give name of country or countries)
Answer: China
Question: 36 Why did you leave that country? If you need more space to answer, insert extra pages as required.
Answer: I have been persecuted by ccp I can not live like a normal one. I have no human right. A submission will be provided very soon.
Question: 37 What do you fear may happen to you if you go back to that country? If you need more space to answer, insert extra pages as required
Answer: I will be continuously persecuted by ccp. A submission will be provided very soon.
Question: 38 Who do you think may harm/mistreat you if you go back? If you need more space to answer, insert extra pages as required
Answer: The government or authority
Question: 39 Why do you think they will harm/mistreat you if you go back? If you need more space to answer, insert extra pages as required
Answer: I have had blemish in my political life that ccp will never forgive me. A submission will be provied (sic) to your office very soon
Question: 40 Do you think the authorities of that country can and will protect you if you go back? If not, why not? If you need more space to answer, insert extra pages as required
Answer: No the authority will not protect me. I am a target of ccp. See a submission which will be provided soon"
34 Heerey J held that the answers provided by the applicant rendered the case before him distinguishable from Minister for Immigration and Multicultural Affairs v A and Minister for Immigration and Multicultural Affairs v Li. His Honour observed at [13]:
“The applicant did answer all questions on the form. I think a fair reading of his answers indicates that he was making a claim that he feared persecution on the ground of political opinion. There was therefore a valid application for a protection visa which he was able to supplement by further information: Migration Act 1958 (Cth) s 55.”
35 In Shahabuddin v Minister for Immigration and Multicultural Affairs [2001] FCA 273 the applicant responded to the first of the relevant questions in the application form by writing as follows:
“I was a member of Bangladesh Freedom Party. Due to my political opinion I was ousted from the country. A number of my political leaders are arrested by the present government. On the name of Mujib’s trial, they would hang our leaders. heads/workers like are in deep trouble. That’s why I left my motherland.” (at [4])
The applicant went on to say that a more detailed statement would be provided very shortly. He then replied in the following manner to the remaining questions:
“Please see the statement.”
36 The applicant did not raise an objection before the RRT, as he might have done, that the decision of the delegate was based upon an invalid application, and should be set aside for that reason. Instead he invited the RRT to set aside the delegate’s decision solely on its merits.
37 Katz J concluded that the applicant had failed to demonstrate that the decision of the RRT should be set aside as a nullity. His Honour concluded that he should approach the question whether there had been a valid application in the same way that Heerey J had done in Nie.
38 Katz J then referred to the earlier decisions of Hill J in Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at 354 and Tamberlin J in Myint v Minister for Immigration and Multicultural Affairs [2001] FCA 122 where their Honours both expressed the view that the critical questions were designed merely to elicit a person’s claims to be a refugee, and should therefore be regarded as nothing more than guidelines. His Honour adopted similar reasoning.
39 Katz J said at [24]:
“24. The fact that, in the present case, a non-citizen considers it to be in his interest to argue that he did not substantially comply with the requirements for making a valid protection visa application should not be allowed to obscure the fact that there will be many cases in which non-citizens will consider it in their interest to argue to the contrary. To require a non-citizen not only to set out on the application form his or her claims that he or she is a refugee, but also specifically to answer each of the six questions, might well impose a burden on non-citizens in the latter category so heavy that many of them will be unable to shoulder it. It was a consideration of that sort which led R D Nicholson J in Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245 at 279 to accept that there was room for the application of the substantial compliance principle in relation to the manner in which a protection visa application form was completed; and see also Minister for Immigration & Multicultural Affairs v A (1999) 91 FCR 435 at 445, [43] (Merkel J). That consideration should, however, not only impact on the question whether the principle should be applied at all, but also on the question of how it should operate when applied.”
40 His Honour concluded at [29]:
“In those circumstances, it appears to me that a fair reading of Mr Shahabuddin´s words involves the notions that he has already been made to suffer in Bangladesh by reason of his political opinion and that, not only will the leaders of his political party suffer death in the future because of Mujib´s death, but even ordinary members of his political party, like himself, will be in deep trouble by reason of their membership of the party.”
41 Finally, and of central importance to this application, is the decision at first instance in Bal v Minister for Immigration and Multicultural Affairs [2001] FCA 1191. There the applicant specified Turkey in his visa application form as the country to which he did not wish to return. Question 36 asked “Why did you leave that country?” The applicant 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.” To the other questions which followed the applicant answered “See Q 36”.
42 Madgwick J, at first instance, held that the applicant had not made a valid application for the grant of a protection visa. His Honour said that an application, in that context, was not simply a form which indicated that a claim for refugee status was being made, or even what kind of a claim was being made. It was also the applicant’s assertion of the reasons why the particular claim should be granted. He said at [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.”
43 He referred to the judgment of Spender J in the decision of the Full Court in Yilmaz (supra). There Spender J described the application in that case as “inchoate”. Madgwick J accepted that it was not necessary for an applicant to say “much” about his claim in order to render the application valid. His Honour indicated that an outline of the claim, in general terms, might be sufficient. In that regard, he expressed agreement with the approach taken by Katz J in Shahabuddin v Minister for Immigration and Multicultural Affairs. A valid application could be made somewhat informally, so long as there was substantial compliance with the form’s directions. He continued at [13]-[14]:
“13. ….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.”
44 It followed, accordingly to Madgwick J, that the application which had been considered by the delegate in Bal was not a “completed” application. In that sense, his Honour observed, there was no application at all. It followed that the delegate “had no business rejecting it”.
45 Notwithstanding that conclusion, Madgwick J proceeded to dismiss the application for review. His Honour held that the Court should not lend its aid, and its processes, to an applicant who “wants to have his cake and eat it”. The applicant knew of the delegate’s premature rejection of his claim, but chose not to press his right to ask an appropriate court to remedy the situation. Rather, he elected to invoke the investigative obligations and powers of the RRT. He thereby obliged that body to devote time and money to his case. He also thereby obtained a full investigation of his claims, the capacity to support those claims with anything he chose to place before the RRT, and the right to approach this Court and/or the High Court, to correct any legal error by that body. According to his Honour, “in every practical sense, the delegate’s overreaching was thereby remedied”. It would offend common sense, and justice, that the applicant should now be able to avoid the consequences of the very process that he had chosen to invoke and to continue. If such a “ploy” were permitted to succeed, the applicant would be free to apply again for a protection visa and, if refused, free again to trouble the RRT and the courts with what might well be a meritless case for protection.
46 The judgment of Madgwick J in Bal was the subject of an appeal to the Full Court: Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189. That Court, which comprised French, Lindgren & Stone JJ, disagreed with Madgwick J’s conclusion that the application for a protection visa in that case was not a valid application. In a joint judgment their Honours stated at [35]:
“35. The facts of the present case are quite different from those in which an application for a protection visa did not answer the relevant questions at all so as to make clear that there was a Convention basis to the applicant’s claim to be a refugee, and merely foreshadowed doing so in a document to be provided later; see, for example, Minister for Immigration & Multicultural Affairs v A(1999) 91 FCR 435; Yilmaz; Li. Rather, the case is one of those in which the applicant did make a Convention basis clear, but foreshadowed provision of a more detailed statement later; see, for example, Nie; Shahabuddin.
47 Their Honours referred to the judgments of Heerey J in Nie v Minister for Immigration and Multicultural Affairs, and of Katz J in Shahabuddin v Minister for Immigration and Multicultural Affairs. Theyindicated their approval of the approach taken in both those cases. They concluded at [42]:
“42 In sum, Mr Bal made it clear that he claimed to satisfy the Convention definition of a refugee on the basis that he had a well-founded fear of persecution at the hands of the Turkish police for reasons of religion, membership of a particular social group and political opinion, in particular, by reason of his being a Kurd and a Christian. While this was only the “bare bones” of Mr Bal’s claims, and while they were in fact fleshed out by him later in ways which were not implied in the sparse statement he elected to include in his application for the visa, this did not prevent that application from having substantially complied with the requirement of the Act and Regulations that he complete Form 866. It was sufficient that he claimed to have a well-founded fear of persecution by the Turkish police by reason of the three Convention grounds he identified.”
48 What then is the current state of the law on this subject? It seems to me that the level of information provided by the applicant in the present case exceeded by a considerable margin that which was provided by the applicant in Nie, which was held, nonetheless, sufficient to constitute a valid application. I would regard the level of specificity of the claims made in the present case as being broadly similar to that in Shahabuddin where the application was also held to be valid. In Bal the Full Court expressly approved the reasoning in both those cases, and did not express any dissent from the result arrived at in either case.
49 On the current state of the authorities, as I understand them, I consider myself bound to reject the applicant’s contention that the form which she completed on 22 December 1999 was not a “valid application”.
50 I arrive at that conclusion with some reluctance. The information that the applicant provided in support of her application was vague, and lacking in detail, in a number of important respects. In particular, she did not spell out what she meant by the word “harm”, which was a critical aspect of her claim. Plainly, there can be many gradations of “harm”. They range from fear of death, at one extreme, to economic prejudice, at the other. The delegate would have been hard pressed to comprehend precisely what the applicant meant when she expressed her fear of “harm” in the way that she did.
51 I also accept that the link between the “harm” which the applicant claimed to fear, and the basis upon which she made that claim was expressed in the most tenuous of terms. She said that she feared harm because she was “a young Tamil girl”, working in a predominantly Sinhala town, but did not explain the causal link. She claimed that she would not receive protection from the “Sri Lankan forces or authorities” but did not explain what she meant by that somewhat amorphous expression. Even her reference to “political attitudes”, which may be taken to mean “political opinion”, leaves a good deal to surmise and conjecture. For example, she did not distinguish between “actual” and “imputed” political opinion.
52 Nonetheless, as Katz J observed in Shahabuddin, to set the bar too high in order to satisfy the requirements of a valid application would be to do a disservice to many applicants who, for whatever reason, are unable to specify with precision, or clarity, the basis upon which their claims are made.
53 In my opinion, the information contained in the application made it sufficiently clear to the delegate that the applicant’s claim related to her status as a Tamil, and that it had to do with her political opinions, actual or imputed. That is sufficient, according to the authorities set out above, to render the application valid.
54 If the applicant did not spell out in detail a number of the matters to which she referred in her application, including in particular the nature of the harm that she feared, that was because she chose not to do so. She was in the best position to know what kind of harm she feared. It must be remembered that when she completed the application form, she was represented by solicitors, and migration agents, who were very experienced in such matters. There was nothing to prevent her from providing more detailed information than she did at that stage.
55 It follows that the applicant’s contention that her application for a protection visa was not valid must be rejected.
56 It will be recalled that the respondent contended, in the alternative, that the relief sought, which was declaratory, should be refused as a matter of discretion. It is unnecessary, strictly speaking, given my conclusion that the application for a protection visa was valid, to consider this alternative submission. The only case which bears directly upon this issue is the judgment of Madgwick J in Bal. In that case, his Honour was plainly of the view that the applicant was seeking to manipulate the system, and exercised his discretion accordingly.
57 The facts in the present case do not, in my view, lead to the same conclusion. I note that the applicant in this proceeding specifically raised the issue of jurisdiction before the RRT. Moreover, there was unchallenged evidence adduced before the Court which explained why details of the applicant’s claim were not provided to the delegate prior to the date of his decision, some three months after the application for a protection visa was lodged. On any view, the applicant in this proceeding stands in a far better light than the applicant in Bal.
58 For the reasons set out above, the application must be dismissed. The applicant must pay the respondent’s costs.
|
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. |
Associate:
Dated: 8 November 2002
|
Counsel for the Applicant: |
Mr A. Krohn |
|
Solicitor for the Applicant: |
Ravi James & Associates |
|
Counsel for the Respondent: |
Mr C. Horan |
|
Solicitor for the Respondent: |
Clayton Utz |
|
Date of Hearing: |
25 October 2002 |
|
Date of Judgment: |
8 November 2002 |
