"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.