Bal v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-06-14|Before: Stone JJ

INTRODUCTION 1 The appellant, Metin Bal ("Mr Bal"), appeals against an order of a Judge of the Court dismissing his application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (respectively, "the Delegate" and "the Minister") not to grant Mr Bal a protection visa under the Migration Act 1958 (Cth) ("the Act").

background facts 2 Mr Bal is a citizen of Turkey who arrived in Australia on 21 March 1998. On 29 April 1998 he lodged an application under the Act for a Protection (Class AZ) visa with the Department of Immigration and Multicultural Affairs ("the Department"). 3 A question before the Court is whether that application was a valid one. We will have occasion below to refer to the relevant legislative provisions but it suffices for the present to note that invalidity was said to arise from the fact that Mr Bal had not completed the approved form of application by answering fully all questions on it and by foreshadowing that a "detailed statement" would follow. Immediately before Question 36 in his form of application, Mr Bal had stated "TURKEY" against the following printed material: "I am seeking protection in Australia so that I do not have to go back to: ....." 4 Printed Question 36 and Mr Bal's answer to it were as follows: "[36] Why did you leave that country? If you need more space to answer, insert extra pages as required I have been repeatedly and severely tortured by police because of my political opinion and because I am Kurdish, and because I am a Christian. Detailed statement follows.' 5 Questions 37, 38, 39, 40, 43, 44 and 53 and Mr Bal's answers to them were as follows: "[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 See Q36" "[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 See Q36" "[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 See Q36" "[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 See Q36" "[43] How did you leave? Legally [ ] Give details of your exit permit Illegally[ü] Describe how you left See Q36" "[44] Did you have difficulties obtaining a travel document (such as a passport) in your home country? No [ ] Yes [ü] Give details See Q36" "[53] Are you in contact with relatives in your home country or any other country? No [ ] Yes [ü] Describe how you contact them and give any information which you think is relevant to your claim See Q36" 6 On 2 May 1998, a mere three days after the application was lodged and before any "detailed statement" had been received from Mr Bal, the Delegate refused his application. The Delegate noted that Mr Bal had not substantiated his claims and stated (at par 2.4.4): "In view of the information available to the Department, it is reasonable to find that Christian Kurds do not face a real chance of persecution simply because of being either Christian or Kurdish." 7 On 11 May 1998, Mr Bal lodged with the Tribunal an application for review of the Delegate's decision. On 23 September 1998, Mr Bal's solicitor forwarded to the Tribunal a seventy-nine paragraph statutory declaration by Mr Bal and other documents in support of his claim. Subsequently the solicitor forwarded to the Tribunal further statutory declarations of Mr Bal and other documents in support of his claim. The Tribunal conducted a hearing on 8 September 1999. On 7 December 2000 it handed down its decision affirming the Delegate's decision. 8 By his amended application to this Court dated 26 March 2001, Mr Bal propounded the following grounds of review: "The grounds of the application are:

the proceeding before the TRIBUNAL 11 In its reasons for decision, the Tribunal referred to the relevant legislation, the definition of "refugee" in 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 (compendiously, "the Convention"), Mr Bal's claims and the evidence that was before the Tribunal. In its reasons for decision the Tribunal also set out its "Findings and Reasons". The Tribunal noted that Mr Bal claimed to fear persecution for reasons of his race, his religion, his actual political opinion and his imputed political opinion. The Tribunal stated: "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." 12 The Tribunal gave reasons for this view. In doing so, it referred to third-party allegations, anonymous and otherwise, which it had received concerning Mr Bal's claims and which it had put to Mr Bal. The Tribunal said it did not find it necessary to rely on these allegations, but for other reasons which it gave, it was not satisfied that Mr Bal was a Christian or that he feared persecution for this reason in Turkey. 13 The Tribunal pointed out that Mr Bal had made inconsistent claims about his Christianity. He claimed that he was born of Christian parents and also that he would be killed because of his conversion to Christianity. When questioned about this inconsistency Mr Bal conceded that he "did not really have a religious conviction". He said that he had been to church twice in Australia but was unable to say what denomination's services he attended. He admitted to not having done much to raise his children as Christians and was unable to explain the fundamental principles of Christianity to the Tribunal. 14 The Tribunal also did not accept Mr Bal's claim to be Kurdish, citing his poor knowledge of the Kurmanji dialect of the Kurdish language and his lack of knowledge of Kurdish cultural matters and traditions. Moreover the Tribunal noted that even if Mr Bal was Kurdish, in Turkey he would not be identified as Kurdish or perceived as a supporter of Kurdish separatism. Therefore he need not fear persecution because of his Kurdish background. The Tribunal did not accept that Mr Bal was a supporter of Kurdish separatism, noting that his evidence in respect of this claim was inconsistent with the independent country information. The Tribunal also did not accept that Mr Bal was involved in a number of Kurdish political parties, citing internal inconsistencies in Mr Bal's evidence that were unsupported by the independent country evidence. Mr Bal's claim of membership of other social organisations was also discounted. 15 The Tribunal also did not accept that Mr Bal had been previously detained for political offences. Independent evidence obtained by the Tribunal indicated his detention in 1986 was for criminal rather than political offences. The Tribunal also noted that it was not plausible that Mr Bal would be detained for a political offence and then be able to find employment at a government owned organisation. The Tribunal did not accept his claims that he had been detained at May Day marches in 1995 and 1996 or that he was arrested and tortured on International Women's Day in 1998. It similarly rejected Mr Bal's claim to have been detained and tortured and had his house searched at various times from 1978 to 1996 because he was identified as Kurdish or perceived as Kurdish. The Tribunal concluded that it was not satisfied as to the factual basis of Mr Bal's claims and could not, therefore, be satisfied that he had a well-founded fear of persecution for a Convention reason.

the proceeding before the primary judge 16 Before his Honour, Mr Bal was represented by a solicitor who advanced three reasons why the Tribunal's decision should not stand. The first was that because it was not "completed", Mr Bal's application for a protection visa had not been a valid one with the result that the Delegate's decision on it was made without power and the Tribunal had not had jurisdiction to review that decision. The second was that the Tribunal had proceeded so illogically that it had failed to exercise jurisdiction. The third ground was actual bias. 17 The primary Judge criticised the "peremptory treatment" by the Delegate in making his decision without allowing time for Mr Bal to submit the detailed statement referred to in his application, referring to Mr Bal's entitlement to natural justice at the hands of the Delegate. However, in the opinion of the primary Judge this "unattractive feature" of the matter was made irrelevant by subsequent events. 18 In relation to the invalidity ground, the primary Judge referred to several single Judge and Full Court decisions as to the effect of a failure to complete, in one respect or another, the approved form of application for a protection visa. In Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486 ("Li"), a Full Federal Court held that the failure to answer questions in that case rendered the application invalid and, given that the Tribunal only has jurisdiction to review decisions made on a valid application, the Tribunal's decision in Li was of no legal effect and should be set aside. The Minister sought to distinguish Li and submitted, in the words of the primary Judge, 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 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." The Minister referred to a number of authorities in support of this proposition, including Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273 ("Shahabuddin"), Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 ("Nader"), Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122 ("Myint") and Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347 ("Nie"). The Minister's alternative submission was that if all questions must be answered, they may be impliedly answered and were so answered by Mr Bal. 19 His Honour perceived some tension between the approach of the majority in Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 ("Yilmaz") and the decision of the Full Court in Li. In Yilmaz an incomplete application form was lodged and the Minister's delegate refused the visa sought. The Minister then received a statement setting out the applicant's grounds for protection. An application to the Tribunal for review of the delegate's decision followed. The majority in Yilmaz found that the Tribunal was authorised to make its decision even though the delegate had not been authorised to make his decision because of the incomplete application form. The power of the Tribunal to make its own decision on what, in Yilmaz, was considered to be a then completed application form, essentially cured the absence of answers to some questions in the form of application. According to the majority, the Tribunal was not confined to declaring the invalid application form invalid. 20 His Honour considered that he was bound by Li although he said he found the reasoning of the majority in Yilmaz to be "compelling". He stated (at [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." 21 Notwithstanding this conclusion, in the exercise of his discretion under subs 481(1) of the Act, the primary Judge declined to grant relief. Generally speaking, his reason was that Mr Bal had elected to chance his hand before the Tribunal by putting before it all relevant material in the hope of achieving a successful result and raised the validity point only after he had failed before the Tribunal. The primary Judge noted that in every practical sense the Delegate's overreaching was remedied by Mr Bal's invoking the Tribunal process, where he had received a full investigation of his claims and had the right to approach either this Court and/or the High Court to correct any legal error by the Tribunal. Mr Bal had received as full and fair an investigation of his claims as that which would have occurred had he complained of the Delegate's undue haste at an earlier time. In addition, Mr Bal had not put to the Tribunal that it had no jurisdiction because of the invalid application, instead "[h]e waited to see how he fared at the Tribunal's hands". 22 His Honour referred to the various matters which were put to him by Mr Bal's solicitor in support of the "illogicality" and "actual bias" submissions but concluded that there was no substance in those submissions.

Relevant legislation 23 In view of the conclusion which we reach below, we do not find it necessary to refer to the whole of the legislative regime that existed at the time in question. 24 Subsections 47(1) and (3) of the Act were as follows: "(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." In order to know what is a valid application for a visa, it is necessary to turn to subs 46(1) of the Act which provided, relevantly, as follows: "(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); ..." Subsection (2) of s 46 is not presently relevant. 25 Subsections 45(1) and (2) of the Act were as follows (subs 45(3) is not relevant): "(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." 26 The reference to the "regulations" in subss 45(1) and (2) is a reference to the Migration Regulations 1994 (Cth) ("the Regulations"). Regulation 1.18 empowered the Minister to approve forms for use in making an application for a visa. It has not been in dispute that Form 866 was the approved form for the making of an application for a Protection (Class AZ) visa for which Mr Bal applied. 27 Regulation 2.01 provided that prescribed classes of visa were, relevantly, such classes as were set out in the respective items in Schedule 1 to the Regulations. 28 Regulation 2.02 provided for Subclasses of visa and the identification of them in Schedule 2 to the Regulations. Regulation 2.03 provided for the criteria for the grant of visas of particular classes to be stated in Schedule 2 to the Regulations. 29 Regulation 2.04 provided, relevantly, as follows: "… the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2." 30 Regulation 2.07(1) provided that, for the purposes of s 45 of the Act, if an application was required for a particular class of visa, the approved form to be completed by the applicant was set out in the relevant Part of Schedule 1 to the Regulations. Regulation 2.07(3) was as follows: "An applicant must complete an approved form in accordance with any directions on it." It follows from the above that by the operation of the Act and Regulations, Mr Bal was required to "complete" Form 866. 31 Schedule 1 was headed "Classes of visas". Schedule 2 was headed "Provisions with respect to the grant of Subclasses of visas". A note at the beginning of Schedule 1 was as follows: "This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47." Item 1126 in Part 1 of Schedule 1 was headed "Protection (Class AZ)". Within that Item, Form 866 was identified as the approved form of application for such a visa. The Item referred to "Subclass 866". 32 Within Schedule 2 of the Regulations, Subclass 866 was headed "Protection". The entry under that heading identified "Criteria to be satisfied at the time of an application" for a Protection visa and "Criteria to be satisfied at the time of the decision" on such an application. In relation to the former, one criterion was that the applicant claimed to be a person to whom Australia had protection obligations under the Convention and who made "specific claims" under the Convention. (Criteria to be satisfied at the time of decision included a criterion that the Minister was satisfied that the applicant was a person to whom Australia had protection obligations under the Convention.) 33 The provision of Schedule 2 to which we have referred in the immediately preceding paragraph is relevant to the concept of "completion" of Form 866 (see below).

conclusions on the appeal 34 Unlike his Honour, we have concluded that Mr Bal's application for a protection visa was valid. 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. 36 Section 25C of the Acts Interpretation Act 1901 (Cth) provides: "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." The section applies to the Regulations as if they were an Act (subs 46(1) of the Acts Interpretation Act). 37 Although Form 866 is not prescribed by the Act or the Regulations, it has been accepted that a "substantial compliance" requirement is applicable to it; cf Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245 ("Wu")at 279 per RD Nicholson J, with whom Jenkinson J agreed; Minister for Immigration & Multicultural Affairs v A per Merkel J at [43]; Shahabuddin at [16]. 38 In Nie, the applicant stated in his application form that he feared persecution by the Chinese Communist Party because of a "blemish in [his] political life." He gave no further particulars but stated that a submission would "be provided soon". Heerey J held the application to be a valid one because the applicant had made it clear that he feared persecution on the ground of political opinion. Similarly, Mr Bal made it clear that he feared persecution on, inter alia, the ground of political opinion. 39 In Shahabuddin the applicant gave more detail of the "political opinion" ground on which he relied, stating that he had been a member of the Bangladesh Freedom Party and adding that a "statement would be sent very shortly". Katz J followed Hill J in Nader at [4] and Tamberlin J in Myint at [15], in holding that substantial compliance was to be assessed by reference to the purpose of the form in eliciting the applicant's claim to be a refugee within the Convention and that the questions posed in the form were only guidelines to that end. Accordingly, so his Honour held, it was not necessary to be able to distil from the applicant's responses, answers to all questions on the form. 40 We agree with the approach taken to the notion of "substantial compliance" in the present context by Heerey J in Nie and Katz J in Shahabuddin, outlined above. (See too, Wu at 280 per RD Nicholson J; Minister for Immigration & Multicultural Affairs v A per Merkel J at [43], [44]; Li v Minister for Immigration & Multicultural Affairs [2000] FCA 421 (Heerey J) at [49].) 41 Was there substantial compliance in the present case? In the answer he gave to Question 36 and his cross-references to that answer in his responses to Questions 37, 38, 39 and 40 in Form 866, Mr Bal was answering those questions as follows: (Q37) that what he feared would happen to him if he returned to Turkey was that he would suffer repeated and severe torture by the police; (Q38) that those who he thought might "harm/mistreat" him if he went back were the Turkish police; (Q39) that the reasons he thought that they would "harm/mistreat" him if he went back to Turkey were his holding of a political opinion, his being Kurdish and his being a Christian; (Q40) that he did not think the Turkish authorities would protect him because, in the past, those authorities, the Turkish police, had been his torturers. Also Question 6(e) asked Mr Bal whether he had been asked to leave any country, to which he replied, relevantly: "I have been repeatedly told under torture, to leave Turkey by Turkish police." 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. 43 The Delegate referred to the provisions of subss 55(1) and (2) of the Act, which were as follows: "(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." The Delegate decided not to delay making a decision and proceeded to assess Mr Bal's application against country information relating to Turkey which was available to the Delegate. In the light of our view expressed above, the application was a valid one and the Delegate was entitled to take that course. (As well, the Delegate took into account the inconsistency between Mr Bal's allegations (a) that the Turkish police had repeatedly told him "under torture" to leave Turkey, and (b) that he had had difficulty in obtaining a passport in Turkey.) 44 Although the Delegate's response to Mr Bal's application is not relevant to the construction of Form 866 and Mr Bal's answers, we note that the fact that he was able to address Mr Bal's claims is consistent with our view that there was substantial compliance with the requirement that Form 866 be completed. 45 Notwithstanding his further cross-references to his answer to Question 36, Mr Bal did not provide answers to Questions 43, 44 or 53 because his answer to Question 36 was not responsive to those three questions. But in our opinion, his failure to answer those questions at all did not prevent "substantial compliance" from being achieved. Answering those questions was not necessary to a statement of the Convention basis of Mr Bal's claim to be a refugee. 46 There is no substance in the "illogicality" or "actual bias" grounds. The primary Judge correctly rejected them and gave reasons for doing so which do not reveal any appealable error.

conclusion 47 For the above reasons, the appeal should be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: Blake Dawson Waldron

Migration Act 1958(Cth)ss 45, 46, 47

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