Zanaj v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 On 23 November 1999, Hayne J of the High Court of Australia remitted to this Court part of a matter pending in the High Court in which the applicant, Ms Zanaj, sought a writ of mandamus against the respondent in respect of a decision of the Refugee Review Tribunal ("RRT"), being a decision adverse to her. 2 On 2 April 1997, Ms Zanaj purported to apply to the respondent's department for a protection visa. In her application form (Form 866), Ms Zanaj stated that she was seeking protection in Australia so that she did not have to return to Albania. In answer to the question, "why did you leave that country?" Ms Zanaj responded, "visit and study the market". In answer to the question, "what do you fear may happen to you if you go back to that country?" Ms Zanaj responded, "afraid of getting killed". 3 Ms Zanaj also answered "afraid of getting killed" to the following questions: · 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? If not, why not? 4 The answer "afraid of getting killed" is non-responsive to all of the questions referred to in the preceding paragraph. 5 For an application for a protection visa to be validly lodged, the Form 866 must be completed in accordance with the directions stated on the form: see Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 at [61]. 6 The lack of a responsive reply to the three questions referred to in [3] above resulted in the form used by Ms Zanaj being one "that omit(ted) essential information": see Li at [63]. 7 Ms Zanaj's purported application was treated by the respondent's department as a valid application for a protection visa. By letter dated 28 April 1997, a representative of the respondent advised Ms Zanaj that her "application for a Protection Visa ha(d) been received and w(ould) be processed …". 8 By letter dated 9 May 1997, a delegate of the respondent advised Ms Zanaj that her application had been refused. In his decision, the delegate noted that Ms Zanaj only claimed that "she is afraid of being killed in Albania". He also observed that Ms Zanaj: "has provided no details in her application about: her social, political or economic profile in Albania, her home country her past history concerning possible persecution there which individual, group or organisation in Albania she fears may harm her the reason or reasons she may be singled out for possible persecution the convention ground or grounds for being singled out, namely, her race, religion, nationality, membership of a particular social group or political opinion." 9 On 10 June 1997, Ms Zanaj purported to apply to the RRT to review the decision of the delegate. In the form in which she purported to apply to the RRT, in a section dealing with her "reasons for making this application", Ms Zanaj wrote to the effect that she believed the delegate had made a mistake and that she was a refugee as defined by the Refugees Convention. She concluded that section of the form by saying, "I will provide further reasons in due course". 10 On 10 March 1998, Ms Zanaj was advised by the RRT that she was being offered an opportunity to give oral evidence to the RRT in support of her application. She was also advised of a hearing being available on 5 May 1998. The letter stated in its penultimate paragraph that: "You must send any new documents or written arguments to support your application to the Tribunal immediately. If they are not in English they must be translated into English by an accredited interpreter or recognised translation authority." 11 On 24 April 1998, the RRT received a three page typed document, as Ms Zanaj wrote, "to support my application for a protection visa". No such material was sent to the respondent's department as distinct from the RRT. Accordingly, when one applies the reasoning of the Full Court in Li,it follows that no valid application was received by the department in respect of Ms Zanaj. It further follows that the RRT had no jurisdiction to hear Ms Zanaj's application to review the purported decision of the delegate. On 6 May 1998, the RRT affirmed the decision of the delegate. The RRT's decision was also made without jurisdiction. 12 After the making of the final orders in Li by the Full Court, the parties in this proceeding submitted brief written submissions regarding the orders the Court should make to finalise this matter. The only difference between the parties was on the question of costs. 13 The respondent has acknowledged that the result of the proceeding is governed by the judgment of the Full Court in Li. The applicant contended in her written submissions regarding costs that the RRT was not empowered to consider what was an invalid application. However, this point was not raised by the applicant in her counsel's oral submissions during the hearing but was initially raised by the Court in the context of the point having been addressed in submissions in Li. In these circumstances, the fairest outcome is that there should be no order as to costs. 14 The order of the Court is as follows: