Shahabuddin v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the RRT"). That application for review has been brought by Mr Ali Shahabuddin, a national of Bangladesh, and concerns the RRT's decision to affirm a decision made by the respondent Minister's delegate ("the Minister" and "the delegate" respectively) to refuse to grant Mr Shahabuddin a protection visa. 2 As he ultimately presented his case before me, Mr Shahabuddin made only one complaint about the RRT's decision, which complaint had its origin in the manner in which Mr Shahabuddin had filled in the form on which he purported to apply for a protection visa. 3 On that protection visa application form, lodged with the Minister's Department ("the Department") on 29 June 1998, Mr Shahabuddin asserted, on that part of the form headed "Your reasons for claiming to be a refugee", that he was seeking protection in Australia so that he did not have to go back to Bangladesh. He was then asked on the same part of the form to answer the following six questions: "Why did you leave that country?"; "What do you fear may happen to you if you go back to that country?"; "Who do you think may harm/mistreat you if you go back?"; "Why do you think they will harm/mistreat you if you go back?"; "Do you think the authorities of that country can and will protect you if you go back?"; and "If not, why not?". 4 In the space provided on the form for Mr Shahabuddin's answer to the first of those six questions, he wrote 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. (A statement would be sent very shortly.)" 5 In the spaces provided on the form for Mr Shahabuddin's answers to each of the last five of those six questions, he wrote as follows: "Please see the statement". 6 Contrary to Mr Shahabuddin's assertion on the form that he would send the Department a statement "very shortly", he did not do so, either very shortly after lodging his protection visa application form with the Department or at all. 7 Over three months after Mr Shahabuddin had lodged his protection visa application form with the Department, the delegate decided to refuse to grant Mr Shahabuddin the protection visa for which he had purportedly applied. 8 Following the delegate's decision to refuse to grant him a protection visa, Mr Shahabuddin sought review of that decision by the RRT and, in connection with that review by the RRT, supplied to it the statement which he had, almost ten months earlier, promised on his protection visa application form to supply very shortly to the Department. 9 Before the RRT, Mr Shahabuddin did not submit, as he could have done, that it should set aside the delegate's decision because the delegate had not had before him or her, when he or she came to make his or her decision, a valid protection visa application. Instead, Mr Shahabuddin invited the RRT to set aside the delegate's decision solely on its merits. 10 However, having failed before the RRT in his application for review of the delegate's decision on its merits, Mr Shahabuddin now submits before this Court that the delegate did not have before him or her, when he or she came to make his or her decision, a valid protection visa application. In making such submission, Mr Shahabuddin relies on what he asserts was his own failure, when lodging his protection visa application form, to comply with the requirements for making a valid protection visa application. He also relies on his own failure subsequently to send to the Department the statement which he had asserted on his protection visa application form that he would supply to it very shortly after lodging his form. 11 Mr Shahabuddin further submits that the effect of the decision of a Full Court of this Court in Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (Ryan, Sackville and Emmett JJ, 18 October 2000, unreported) is that the RRT was not authorised by the Migration Act 1958 (Cth) ("the Act") to affirm the delegate's decision when the delegate had not had before him or her, when he or she came to make his or her decision, a valid protection visa application. 12 To those submissions by Mr Shahabuddin, the Minister, acknowledging that I would follow the Full Court's decision in Li (although formally submitting that it was wrongly decided), made two submissions in response. 13 First, the Minister submitted that the manner in which Mr Shahabuddin filled in his protection visa application form did not mean, in the circumstances of the present matter, that the delegate did not have before him or her, when he or she came to make his or her decision, a valid protection visa application. Mr Shahabuddin, the Minister submitted, had substantially complied, when lodging his protection visa application form, with the requirements for making a valid protection visa application and substantial compliance in that respect was sufficient. Mr Shahabuddin had substantially complied with those requirements by including, in the space provided on the form for his answer to the first of the six questions asked, the information which he had, so that the delegate had had before him or her, when he or she came to make his or her decision, a valid protection visa application. 14 Secondly, the Minister submitted that, even if the delegate did not have before him or her, when he or she came to make his or her decision, a valid protection visa application and that meant that the RRT had not been authorised to affirm the delegate's decision, nevertheless, in the circumstances of the present matter, I would, in the exercise of the discretion conferred on the Court by subs 481(1) of the Act, refuse to grant Mr Shahabuddin a remedy. (I note that such a discretionary argument was not made by the Minister in Li: see at [58]). 15 I turn first to the "substantial compliance" issue. 16 The following matters are not in dispute between the parties in the present matter: at the relevant time, the form which Mr Shahabuddin lodged with the Department was an approved form; at that time, subreg 2.07(3) of the Migration Regulations 1994 (Cth) required an applicant to complete an approved form in accordance with any directions on it; the form which Mr Shahabuddin lodged with the Department had on it a direction to an applicant to answer all questions on it; and the doctrine of "substantial compliance" is applicable in respect of the act of completing the form (see Li at [62]). 17 Further, Mr Shahabuddin expressly conceded before me that if all six of the questions which I have set out above are answered on a form, even though not every answer is given in the space provided on the form for its giving, then the form has been validly completed. However, that was not, he submitted, what had happened in the present case. The material inserted in the space provided for answering the first question had been responsive, he submitted, only to that first question, but had not answered the remaining five questions, each of which was required to be answered, even if briefly, before there could be said to be substantial compliance with the requirements for making a valid protection visa application. An answer to each of those questions was crucial in that respect. 18 In response, the Minister drew attention to the fact that, in Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 at 354, [4], Hill J had said of the six questions on the form, "These questions were designed to elicit the claims of the applicant that he [or she] was a person to whom Australia owed protection obligations" under the Refugees Convention ("the Convention"). The Minister further drew attention to the fact that, in Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122 (23 February 2001, unreported) Tamberlin J (at [15]), relying on what Hill J had earlier said in Nader, had himself said of the six questions on the form that they were "designed as guidelines". 19 Relying on those authorities, the Minister submitted that substantial compliance did not depend on whether the person completing the form had answered each of the six questions, but depended instead on whether the person completing the form had included sufficient information to show that the issue whether Australia owed protection obligations to that person under the Convention might arise. In particular, the Minister submitted that substantial compliance did not depend on whether the person filling in the form had included sufficient information on the form to persuade the decision-maker that Australia did owe protection obligations under the Convention to that person. 20 As an example of the approach which the Minister urged was the appropriate one to the present issue, he referred me to Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347 (3 May 2000, unreported). In that case, the person lodging the protection visa application, a Chinese national, had included information in the spaces provided for answering each of the six questions. To the question why he had left China, he had answered, "I have been persecuted by ccp I cannot live like a normal one I have no human right". To the question what did he fear might happen to him if he went back to China, he had answered, "I will be continuously persecuted by ccp". To the question who did he think might harm/mistreat him if he went back, he had answered, "The government or authority". To the question why did he think they would harm/mistreat him if he went back, he had answered, "I have had blemish in my political life that ccp will never forgive me". To the question did he think the Chinese authorities could and would protect him if he went back, he had answered, "No the authority will not protect me". Finally, to the question if not, why not, he had answered, "I am a target of ccp". 21 Faced with that relatively uninformative material appearing on the protection visa application form, Heerey J stated (at [13]), "I think a fair reading of his [that is, Mr Nie's] 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…." 22 According to the Minister, I should approach the question whether, in the present case, Mr Shahabuddin had substantially complied with the requirements for making a valid protection visa application by asking myself in substance the same question as that which Heerey J had asked himself in Nie, namely, whether a fair reading of the information which Mr Shahabuddin included in the space provided on the form for answering the first of the six questions indicates that he was making a claim that he feared being persecuted for reasons of political opinion if he should return to Bangladesh. If I asked myself that question, I would, the Minister further submitted, answer it affirmatively. 23 I consider it appropriate to approach the substantial compliance question in the fashion urged by the Minister. In particular, I do not consider it necessary that one should be able to distil from the information supplied on an application form an answer to each of the six questions which I have set out above. I accept the views of Hill and Tamberlin JJ respectively that the six questions were designed only to elicit a person's claims that he or she is a refugee and as guidelines only. 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 RD 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. 25 As to the question whether a fair reading of the information which Mr Shahabuddin included in the space provided on the form for answering the first of the six questions indicates that he was making a claim that he feared being persecuted for reasons of political opinion if he should return to Bangladesh, I consider that it does, especially when read in light of his earlier statement that he was seeking protection in Australia so that he did not have to go back to Bangladesh. 26 I have already set out what it was that Mr Shahabuddin did include, but I think it best now to set out again the operative part of it: "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." 27 I consider that when deciding whether a fair reading of that material indicates that Mr Shahabuddin was making a claim that he feared being persecuted for reasons of political opinion if he should return to Bangladesh, I should do so having regard to the likely background knowledge of those persons who dealt with protection visa applications at the relevant time, in particular, Ministerial delegates. 28 Such persons would be likely to have known that the "Present government" being referred to by Mr Shahabuddin was the Awami League government, that the "Mujib" being referred to by Mr Shahabuddin was Sheikh Mujibur Rahman, that Mujib had been the Awami League prime minister of Bangladesh and had been assassinated in 1975, that the leader of the Freedom Party had confessed to having organised that assassination and that leaders of the Freedom Party had been arrested by the Awami League government and were being tried in connection with Mujib's death. 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. 30 (I should add here that, if contrary to the view which I have expressed above, it is necessary that each of the six questions to which I have referred above be answered before there has been substantial compliance with the requirements for making a valid protection visa application, then, in accordance with a view expressed by Tamberlin J in Myint (at [15]) I would conclude that those questions can be answered impliedly, as well as expressly. I consider that, in the present matter, that which Mr Shahabuddin expressed did imply answers to the last five of the six questions, namely, "I fear I will be in deep trouble"; "The government may harm/mistreat me if I go back"; "The government will harm/mistreat me because of my membership of the Freedom Party"; "The authorities of Bangladesh will not protect me if I go back"; and "Because of my membership of the Freedom Party".) 31 In the circumstances, I reject Mr Shahabuddin's submission that the delegate did not have before him or her when he or she made his or her decision a valid protection visa application. That rejection means that Mr Shahabuddin's application for review should be dismissed with costs. 32 It also means that there exists no necessity for me to revisit what I said in Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 964 (19 July 2000, unreported) at [19]-[23] (affirmed without reference to the point: [2000] FCA 1737 (Ryan, Sundberg and Emmett JJ, 29 November 2000, unreported)) regarding the exercise, in circumstances like the present, of the discretion conferred on the Court by subs 481(1) of the Act.