Samuel v Minister for Immigration & Multicultural Affairs [2000] FCA 854 (20 June ... Page 1 of 8

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Samuel v Minister for Immigration Affairs [2000] FCA 854 (20 June 2000)
Last Updated: 6 July 2000 FEDERAL COURT OF AUSTRALIA Samuel v Minister For Immigration [2000] FCA 854

& Multicultural

& Multicultural Affairs

MIGRATION - Application for protection visa - Review of decision of Refugee Review Tribunal - Effect of failure of applicant to complete prescribed visa application form - Tribunal decision set aside. Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 followed

Minister for Immigration 435 referred to

and Multicultural Affairs v A [1999] FCA 1679; (1999) 91 FCR

Migration Act 1958, ss45, 46 and 47 Migration Regulations, reg 2.07 Acts Interpretation Act 1901, s25C MINTU RAHADA SAMUEL MULTICULTURAL AFFAIRS N11 of 2000 WILCOX J SYDNEY 20 JUNE 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N11 of 2000 BETWEEN: MINTU RAHADA SAMUEL v MINISTER FOR IMMIGRATION AND

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AND:

Applicant MINISTER FOR IMMIGRATION AFFAIRS Respondent WILCOX J 20 JUNE 2000 SYDNEY

AND MULTICULTURAL

JUDGE: DATE OF ORDER: WHERE MADE:

THE COURT ORDERS THAT: 1. The application for review be allowed and the decision of the Refugee Review Tribunal be set aside. 2. The respondent, Minister for Immigration the applicant, Mintu Rahada Samuel . and Multicultural Affairs, pay the costs of

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N11 of 2000 BETWEEN: MINTU RAHADA SAMUEL

AND:

Applicant MINISTER FOR IMMIGRATION Respondent

AND MULTICULTURAL AFFAIRS

JUDGE: WILCOX J DATE: 20 JUNE 2000 PLACE: SYDNEY EXTEMPORE REASONS FOR JUDGMENT 1 WILCOX J: This is an application by Mintu Rahada Samuel for a review of a decision of the Refugee Review Tribunal refusing an application to review a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse to issue him a protection visa. 2 A number of matters were advanced in the written submissions lodged with the Court on behalf of the applicant. However, it is not necessary to deal with all of them; there is a fundamental problem about the decision made by the delegate. It is a problem that has surfaced in a number of recent cases. It arises out of the language of ss45, 46 and 47 of the Migration Act 1958, read in conjunction with reg 2.07 of the Migration Regulations. 3 An application for a protection visa was lodged with the Department of Immigration and Ethnic Samuel Affairs, as it was then called, on 17 June 1997. This application was signed by Mr and contained answers to various questions. However, in the section headed "Your Reasons for Claiming to be a Refugee", no substantial information was set out. That section commences with a

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direction to applicants. Applicants are told that the reasons given in the section should be the applicant's reasons only. The direction then goes on: "You should answer all the following questions in your own words. You should tell us below everything about why you think you are a refugee. 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. Your claims will be assessed against the definition of a refugee set out in the United Nations Convention. That definition is provided on page 1 of Part A of this form. You should, wherever possible, provide dates, locations, etc. in respect of any events/occurrences to which you refer. You should provide any evidence that you have which supports your claim." 4 The first question in the section required applicants to identify the country to which they did not inserted the word "Bangladesh". Under the heading "Why did wish to return. Mr Samuel you leave that country?", he answered: "please see my statutory declaration". The next question asked was: "What do you fear may happen to you if you go back to that country?" He gave the same answer. The next question was: "Who do you think may harm/mistreat you if you go back?" Again, he gave the same answer. He did the same thing in respect of the following question: "Why do you think they will harm/mistreat you if you go back?" The next question was: "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" Once again he answered: "please see my statutory declaration". The form then required the date of leaving the relevant country, together with certain details. This information was supplied. 5 It will be seen that, in respect of matters critical to evaluation of the question whether a person answers the definition of "refugee" under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, Mr Samuel provided no information other than a reference to his statutory declaration. However, at that time, apparently no statutory declaration was in existence. Certainly, none was produced to the Department. The earliest statutory declaration in the file is one that was prepared only a few days before the hearing of the application for review of the delegate's decision by the Refugee Review Tribunal. It was not in existence at the date of the delegate's decision itself. 6 The application form was submitted to the Department under cover of a letter from the applicant's solicitors in which they referred to an earlier refugee application made by him, and since withdrawn, and gave its file number. Why they did this is not clear; the solicitors did not request that the information supplied in connection with the previous application be treated as a part of the material put forward by him in respect of the subject application. On 4 August 1997 the solicitors again wrote to the Department enclosing a number of documents that were intended to be considered in relation to the subject application

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7 Some of the documents forwarded by the solicitors were obviously intended to corroborate the applicant's claimed identity. One document was said to be a certified copy of a letter from the Bangladesh Nationalist Party. It purported to evidence Mr Samuel 's membership of that organisation and his position as publicity secretary of a particular section of it. There were also what were claimed to be certified copies of documents evidencing the fact that Mr Samuel was wanted in respect of criminal proceedings said to have been fabricated against him by the Awami League, a political party opposed to the Bangladesh Nationalist Party. 8 The documents enclosed with the solicitors' letter, if they were genuine, might be regarded as corroborative of claimed facts, but they did not themselves make any claim. They could not, of course, say anything about the applicant's subjective condition; his subjective fear of persecution being a matter which must be demonstrated in order to come within the Convention definition. 9 It is apparent that the delegate did not regard the documents submitted with the letter of 4 August 1997 as providing a sufficient statement of Mr Samuel 's claims and fears. In her record of decision refusing the application, dated 21 November 1997, the delegate set out some material under the heading: "Is the applicant outside the country of citizenship, or if the applicant is stateless, the country of habitual residence." She referred to various claims and fears. But the material submitted to the Department in connection with the subject application made no reference to those claims and fears. When I asked counsel for the Minister what would have been the source of the delegate's statement, he conjectured - and that, I suppose, is all he could have done - that she might have had regard to the earlier application. I suspect this is so; although I note that the delegate itemised the evidence before her in making her decision and included the departmental files in connection with the subject application, but not the departmental file or files in connection with the earlier application. 10 Section 45 of the Migration Act 1958 contains the following provisions: "(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. 11 Regulation 2.07 provides as follows: 2.07(1) For the purposes of sections 45 and 46 of the Act (dealing with applications 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.

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... (3) An applicant must complete an approved form in accordance with any directions on it." 12 At the relevant time, Schedule 1 prescribed a form of protection visa application that corresponds with the form used in the present case. The prescribed form included the directions to which I have made reference. It follows that reg 2.07 effected a prescription of "the way for making" an application for a protection visa within the meaning of s45(2)(b) of the Act. That way included a requirement that the form prescribed in the Schedule be completed in accordance with the directions contained in the prescribed visa application form. It is clear, indeed common ground, that this was not done in the present case. 13 Section 46 sets out the criteria for a valid visa application. Relevantly, it provides as follows: "(1) Subject to subsection (2), an application for a visa is valid if, and only if: (a) ... (b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3)." Subsection 45(3) is not relevant to the present case. 14 Section 47 deals with consideration of a visa application. Subsection (1) imposes on the Minister a duty "to consider a valid application for a visa" and subs (2) makes clear that duty continues until one of various events occurs. Subsection (3) provides: "To avoid doubt, the Minister is not to consider an application that is not a valid application." Subsection (4) reads: "To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa." did not 15 It is conceded by counsel for the Minister in the present case that Mr Samuel make an application "in the way required" by s45(2) of the Act, unless it is correct to say that s25C of the Acts Interpretation Act 1901 applies to the case. That section provides as follows: "Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient." As counsel agrees, the critical issue, therefore, is whether s25C applies to this case. That issue turns on whether a contrary intention appears in the relevant provisions of the Migration Act. 16 In my view, there can be only one answer to that question. Even if the matter were free from authority, I would take the view that the terms of ss46 and 47 of the Migration Act leave no room for the application of s25C of the Acts Interpretation Act. Parliament's intention to insist on strict compliance could not have been made clearer. Section 46(1)(b) states that: "an application for a visa is valid if, and only if, it is made in the way required by subsection 45(2)." [Emphasis added]

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17 Section 47(3) approaches the matter on the basis that there really is no doubt but that an invalid application is not to be considered; nonetheless, in order to avoid any possible doubt, the subsection commands the Minister not to consider an application that is not a valid application. This must mean valid according to the criteria set out in s46. It would make nonsense of this careful legislative scheme to say that s25C of the Acts Interpretation Act applied to make substantial compliance sufficient. 18 As it happens, the matter is not free from authority. In Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, a Full Court was confronted with a situation where an applicant for refugee status had not used the appropriate form. The Full Court held that ss46 and 47 of the Act made the use of that form essential to the existence of a valid application. At 261, Carr J held that s25C of the Acts Interpretation Act had no role to play in the statutory scheme provided by ss45-47 of the Migration Act. His Honour said: "In my view, the statutory scheme applicable to this matter does disclose a contrary intention." He explained why that was so. A similar view was expressed by R D Nicholson J at 278-279. The third member of the Court, Jenkinson J, agreed with both his colleagues. The effect of Wu is that a Full Court has decided that the statutory scheme embodied in ss45 to 47 of the Migration Act discloses an intention that excludes the operation of s25C of the Acts Interpretation Act. 19 It is true, as counsel for the Minister noted in submissions to me, that there was a different factual situation in Wu. In that case the wrong form had been used. Wu was not a case where the correct form had been used, but had not been adequately completed. However, that does not affect the ruling of the Full Court about the non-application of s25C of the Acts Interpretation Act. 20 The other authority to which I should refer is also a Full Court decision, Minister for Immigration and Multicultural Affairs v A [1999] FCA 1679; (1999) 91 FCR 435. The applicant in that case used the correct form, but omitted from it relevant information, stating this information would be provided by way of statutory declaration. To that point, the facts are similar to those of the present case. However, the applicant in A did not forward any information of a corroborative nature, as was supplied by the solicitor in the present case. As far as I can see, that is the only point of distinction between A and this case. 21 At 445, Merkel J expressed the view that it may not be correct to discern a legislative intent that a failure to complete an approved form in accordance with any and every direction on it should necessarily result in the application being invalid. He said: "There is much to be said for the view that the intent of the legislative scheme is that information necessary to enable the Minister or his delegate to decide the substantive issues raised by a visa application must be provided as directed in an approved form. However, I do not accept the same intent exists in respect of all the information sought in an incomplete form irrespective of the significance or relevance to the outcome of the application or the uncompleted parts of it." [Original emphasis] His Honour went on to say that, in the case before the Court, there had "not been substantial compliance; rather substantial non-compliance". Accordingly, his observation was made by way of obiter dictum. The other two members of the Court, Emmett J and Finkelstein J, agreed with Merkel J that the application was not valid. They did not make any comment about his dictum concerning immaterial omissions. 22 I do not find it necessary to express any view about the reservation expressed by Merkel J. The information sought in the present case, in the section of the form to which the only responses were

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references to a non existent statutory declaration, was information necessary to enable the Minister or his delegate to decide the substantive issues raised by the visa application. It is impossible for anybody to evaluate a claim by an applicant for refugee status without having information from the applicant as to his or her state of mind, including relevant fears, and the reasons for those fears. The factual distinction between the case of A and the present case is not material. 23 The result of the operation of ss45 to 47 of the Act and reg 2.07 is that the document that was considered by the delegate in the present case was not in truth an "application"; that is, a valid application under the Act. Accordingly, the delegate's decision was invalid, and there was nothing for the Tribunal to review. It follows that the Tribunal's decision must be set aside. 24 The situation to which I have referred is profoundly unsatisfactory. It means that an omission of information in an application made, perhaps, some years earlier, as in the present case, requires the whole process to be wound back to the starting point. An applicant for refugee status can, in effect if not in intention, take advantage of his or her failure to comply with the directions on the visa application form. However, this is the result of the fact that Parliament has gone to extraordinary lengths to ensure that a form of application which does not comply with specific requirements shall not be considered. I do not know why it was thought useful to include such provisions; but the Court must give effect to them, as with other provisions in the Act. 25 The order that I propose to make is that the application for review be allowed and the decision of the Refugee Review Tribunal be set aside. There will, of course, be no remission to the Tribunal; there is no valid decision for the Tribunal to review. [There was discussion about costs.] 26 Mr Godwin, on behalf of the applicant, seeks an order for costs. This is opposed by Mr Smith, on behalf of the Minister. 27 From one point of view it might seem odd that an applicant who has created the situation that there was no valid application, and therefore no valid decision, should have the costs of the Court so determining. It can fairly be said that the initial problem stems from the applicant's failure to comply with the directions on the application form and from his solicitors' oversight of that failure. 28 On the other hand, the Department also failed to appreciate the omission. It is probably reasonable to regard the Department as being in a better position, to ensure that the requirements of the regulation are followed, than an applicant; particularly one who may not have an extensive command of the English language. 29 However, it seems to me I should not determine the matter of costs on the basis of who created the problem, or whether it should have been detected at an earlier date by a Departmental officer. The more significant criterion is responsibility for the relevant costs being incurred. 30 Apparently, the visa application deficiencies were first noticed some two or three months ago. There was consideration as to the future of the case. A decision was apparently taken, on behalf of the Minister, that the application for review of the Tribunal's decision should nonetheless be resisted, and an argument should be put to the Court (along with other arguments supportive of the Tribunal's handling of the review) in favour of the proposition that the application, and therefore the decision of the delegate, was validly made. The effect of the decision to pursue that argument was that the Minister put himself, in relation to costs, in the same position as any other litigant asserting a legal proposition. He elected to fight an issue in respect of which he has failed. Accordingly, it seems to me I should accede to the application for costs.

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31 The order that I make is that the application for review be allowed and the decision of the Refugee Review Tribunal be set aside. The respondent, Minister for Immigration and Multicultural Affairs, is to pay the costs of the applicant, Mintu Rahada Samuel . I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 20 June 2000 Counsel for the Applicant: Solicitor for the Applicant: D Godwin Parish Patience

Counsel for the Respondent: J Smith Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 June 2000

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