Applicant VKAV v MIMIA

[2004] HCATrans 532

[2004] HCATrans 532

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M191 of 2003

B e t w e e n -

APPLICANT VKAV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 10.40 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN:  May it please the Court, I appear for the applicant in that matter, your Honours.  (instructed by Ravi James)

MR R.C. KNOWLES:   If the Court pleases, I appear for the respondent.  (instructed by Clayton Utz)

GLEESON CJ:   Yes, Mr Krohn. 

MR KROHN:   Your Honours, this case arises in the situation where Parliament has provided a strict and detailed regime for the making of a valid application for a visa and has directed that the Minister is not to consider an application which is not valid.  The interlocking scheme of the Act and the regulations provide that for validity of the application, an application form is prescribed.  For validity, an application form is to be completed in accordance with any directions on it.

In the case of a protection visa application, there are questions designed to elicit precisely on what basis it is said that the applicant satisfies the definition of a refugee under Article 1A of the Refugees Convention incorporated by reference in section 36 of the Migration Act.

The important elements are that the applicant is outside the country of nationality, has a well-founded fear of persecution for reasons of race, religion, nationality, or membership of a particular social group.  In the present case, the applicant gave sketchy details.  She said in essence, “I fear the harm that would come to me as a young Tamil girl”.  She said that she was concerned about ethnicity and political opinion, and she said that she was concerned about having to go near a predominantly Sinhalese town.  At first instance, his Honour Justice Weinberg concluded with some reluctance, that he was compelled by the authorities to conclude that here was a valid application because some information had been given.  His Honour indicated, however, some reluctance about this conclusion because he said the delegate would really have been in quite some difficulty about assessing what was the harm feared.  Was it a ‑ ‑ ‑

GLEESON CJ:   Mr Krohn, would the same question have arisen if an attempt had been made to deport your client?  That is, whether she had made a valid application.  Suppose the authorities had said, “This is an invalid application; out you go”.  The same test would have to be applied, would it not?

MR KROHN:   The test of validity might have to be applied for a number of purposes, your Honour, but in your Honour’s example, had the application been deemed to be invalid, there would have been no statutory bar to her making a valid application for protection visa.  As I understand the Act and the regulations, that could have been made at any time.  I accept that not a great deal of detail may be required, but the applicant’s submission is that the detail that is required must be specific enough to indicate to the delegate what is the harm, so that the delegate can assess:  is this harm which amounts to persecution or not?  Something about the circumstances so the delegate can assess:  is there a well-founded fear?  Something about the Convention nexus so that the delegate can assess whether in fact the harm feared would be inflicted by reason of, on the motivation of a Convention ground. 

Your Honours, in the present case it is distinct from the situations in a couple of the cases considered, Yilmaz and Li, where no information was given, no answers to the question.  The applicant submits that this case is an important and appropriate vehicle for the Court to determine whether what might be characterised as an empty formalist approach to the completing of the form or a substantial approach to assessing whether the form has been completed is what is required for validity, because simple questions, but questions which really left the delegate in the dark – sorry, because simple answers, but answers which left the delegate in the dark ‑ ‑ ‑

HAYNE J:   But the argument must chart a course between identifying validity and identifying an application that either should succeed or arguably may succeed.  Why is validity not established once it is clear that an answer, satisfactory or unsatisfactory, is given to each question posed on the form?

MR KROHN:   Because, your Honour, the questions that are posed on the form must be taken to be posed for the purpose of exposing the claim so that it can be assessed, and so on that basis, your Honours, while there are distinct categories of validity on the one hand, and strong or weak application on the other, the threshold of the validity of the application must be taken to be set by the Parliament so that there is, if you like, a filter.  Indeed, as I understand, in some categories of applications for visas it has been done.  I do not know whether it is still common practice, but for officers of the department to return documents, application forms and documents to applicants saying, “This is not a valid application.  It fails the threshold of validity”.

The importance of the case as a matter of justice, your Honours, is that Parliament has provided for a two-tiered review on the merits in each case by just one person, and if it is a matter going either to credit or controverted questions about the situation in a country, the two-tiered process is a most important guarantee or an attempt to guarantee a fair and a reliable determination system.

In the present case, effectively only one level of determination on the facts took place, and if I might just highlight, this is a case where the applicant from the beginning of the process before the Tribunal indicated that her position was that her original application was not valid and the Tribunal ought not to be proceeding with it.  This is not a case where the point was saved up for later argument on judicial review, and that was noted by the learned judge at first instance.

May I also indicate, your Honours, that even the respondent concedes in her submissions that the question of the validity of a visa is a question of public importance.  In the present case, it is submitted to the Court that the question of validity is of crucial importance to thousands of visa applications.  A case where it can be said that there was, if you like, weak formal compliance with questions on the form but not substantial compliance is an appropriate vehicle for this question of just what is required for validity of an application to be determined. 

GLEESON CJ:   Mr Krohn, the Federal Court has developed a body of jurisprudence in that court about this issue.  Why is it in the interests of applicants generally that we should intervene, as it were, to tighten up the requirements for validity?

MR KROHN:   In part, your Honours, because in that jurisprudence in the Federal Court, there are several questions which have been dealt with from different angles, but have left those judgments of the court in some, it might be thought, considerable tension.  The judgment of the court in Yilmaz that an application initially invalid or inchoate can be perfected by the later supply of information to the Department, even after the delegate’s decision, is in some considerable tension with the judgment of the Full Court in Li, where it was held that if the information was later provided to the Tribunal but not to the Department, and therefore in breach of Regulation 2.10, the inchoate application was not perfected. 

Now, there is some, in my submission, tension about that and it seems, with respect, to elevate the role of a regulation almost beyond the level of the provision of the statutory test of validity.  But also, your Honours, there is the question not raised, as I recall, in the respondent’s submissions, about the operation of section 69 of the Act, and this also would be an appropriate vehicle for the Court to determine whether, between conflicting views in the Federal Court, section 69 of the Act operates so that even if it is beyond doubt that there is an invalid application for a visa, nevertheless the Tribunal is given by Parliament the power and jurisdiction validly to review it.  And there is, in my submission, some tension between cases such as Soondur and Yilmaz and Li, about the role of section 69, and that is a question which also may helpfully be resolved if the Court grants special leave in this matter. 

Perhaps I might finally say on the question of the jurisprudence, your Honours, that certainly it is the case that some measure of jurisprudence has developed in determining in individual cases whether there has been a valid application for a protection visa, but if one tracks it back, they really are perhaps a mosaic of different tessellated decisions, and it is not at all clear that the decisions, for example, in Nie or Bal or Shahabuddin actually display some clear benchmark according to which the Minister or applicants can be clear, “Well, how much do you have to put in?”

In my submission, your Honour, how much you have to put in is enough to be a concrete specific identifying answer to each of the elements of the definition of a refugee, and if one tracks back that Federal Court jurisprudence to the extent that the respondent relies on judgments of single judges, there is when one looks at the argument some measure of judicial disquiet and difference of opinion and, in my submission, the Court should attach some significance, for example, to the disquiet of his Honour Justice Weinberg at first instance in this matter, or to the view of Justice Madgwick in Bal, although his Honour in that case refused relief on discretionary grounds that do not arise in this case.

Your Honours, perhaps just most simply, it is submitted there is a question of public importance and, having regard to the questions of construction and the underlying rationale of the Act and the regulatory scheme, that this is an appropriate vehicle and an important vehicle.  It is a case which offers the Court an opportunity to clarify the interpretation of this concept of validity in a way that will reconcile the different strands of authority that at the moment, with respect, go in different directions.  May it please the Court.

GLEESON CJ:   Thank you, Mr Krohn.  We do not need to hear you, Mr Knowles.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is dismissed with costs.

AT 10.54 AM THE MATTER WAS CONCLUDED