M306 of 2003 v Minister for Immigration
[2006] FMCA 43
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M306 of 2003 v MINISTER FOR IMMIGRATION | [2006] FMCA 43 |
| MIGRATION − Protection visa application − whether applicant understood nature of the application − whether the application was a valid application. |
| Migration Act 1958 (Cth) |
| Soondur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 324 Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307 NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 160 |
| Applicant: | APPLICANT M306 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 946 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 15 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moore |
| Solicitors for the Applicant: | Mallesons Stephen Jaques |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the Respondent’s costs fixed at $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 946 of 2004
| APPLICANT M306 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant was refused a protection visa and the refusal was affirmed by the Refugee Review Tribunal. She claims that the circumstances in which the application was prepared means that she did not consent to or understand the application, had no understanding or knowledge of it and that it is an application which is null and void.
The application was commenced in the High Court of Australia. On the face of it, it is an application for an order nisi for a prerogative writ claiming jurisdictional error on the part of the Tribunal. In fact, what the applicant claims is that while she signed an application for a refugee visa, it should be treated as not being an application at all, not a valid application under s.45 of the Migration Act 1958 (Cth). The applicant submits that since it was not a valid application, the first respondent should not have considered it (s.47 Migration Act). In addition, she relies on the principle of non est factum and claims she should not be bound by the application.
The applicant has since married an Australian citizen. She cannot apply for a spouse visa while in Australia if she has previously made an application for a visa which has been refused. If her application was a valid one, she has to leave Australia to apply for a spouse visa.
The applicant is a Cambodian national. She arrived in Australia on
21 June 1999. She gives this description of her life in Cambodia and her applications for Australian visas.
The applicant was married in Cambodia in 1979 to a doctor in the Cambodian army. He became the Hun Sen family doctor. The Hun Sen family is the ruling family in Cambodia. The applicant and her husband had two children.
Early in the marriage, the applicant's husband lived with the family, but later he had many affairs and did not live with them. He went away for long periods and the applicant did not know where he had gone. When he returned home he would beat her.
In May 1999, the applicant applied for a visa to Australia for tourism. She said her husband told her she should apply to go to Australia, organised everything for her visit, and completed the visa forms for her. She did not want to come to Australia. She signed the forms when told to do so by her husband. She was very afraid of him and so when he said she should apply for a visa to visit Australia, she did as he said.
On 7 June 1999 she was interviewed in connection with the visa application. Her husband gave her notes in Cambodian and told her what she had to say. She asked him what if the notes were not true. He responded by asking if she wanted another beating. She did as she was told.
The visa application said that she had a sister in Australia who she was visiting, and that the applicant was a currency trader. Both are untrue. She was granted the visa and came to Australia.
She spoke to her husband once after arriving in Australia. After about a month or six weeks, she received divorce papers and a letter. In the letter, her husband warned her not to go back to Cambodia or she would be at risk. She was unable to get in touch with her husband again but eventually spoke to one of her sons. He told her that her husband had divorced her and would pay someone to kill her if she returned to Cambodia. She spoke to her other son who told her she could not return to Cambodia.
She spoke to friends in Australia. About a week after she received divorce papers, she met a man at a party called Pa-To who said he was willing to help her. He told her she should go and see a solicitor and said he would like to take her to see one.
The applicant says Pa-To took her to see two people, a man and a woman she believed were solicitors, but it is clear that the woman was a migration agent, Dong Yin Chen. Dong Yin Chen says there was only her, the applicant and Pa-To. There are other differences between the evidence of the applicant and Dong Yin Chen, but they are not of any consequence.
The meeting took place at Dong Yin Chen’s house, also her place of business. Dong Yin Chen no longer has her file. The time for which it is required to keep a migration file had expired. She has a recollection of the applicant and the applicant's voice but otherwise relies on her normal practice to describe what happened.
Dong Yin Chen says that she speaks the language of most of her clients, but not the applicant, so the applicant in this case was unusual. Dong Yin Chen says that all questions and advice to the applicant were through Pa-To. She said her usual practice was to explain what is meant by the definition of refugee and to warn clients that it is not often a person is successful in this type of application. She said she would have asked questions about the applicant's background and her reasons for applying for a protection visa.
She said that once an application has been completed with a supporting statement, she would again explain it to the applicant and ask the applicant to sign. She said she would have done this with the applicant.
In her affidavit supplemented by oral evidence, the applicant says that some forms and documents were filled out by Pa-To and the migration agent. Pa-To asked her to sign them. He told her if she wanted to stay in Australia she had to sign them, it is what people do. The applicant says that the documents were not explained to her, that the nature of a refugee was not explained to her, nor was she told that refugee applications do not often succeed.
The applicant acknowledges that she signed the protection visa application. Her affidavit is not specific, but she acknowledged in cross examination that it was her signature. A statement dated
15 August 1999, purportedly a statement by the applicant, is attached to the application. In cross-examination, the applicant said that the signature on the statement is not hers.
The statement says that the applicant was politically active in Cambodia, that she was a currency trader and gives details of her involvement in elections. It says that she fears she will be killed if she returns to Cambodia because of her political activity. The applicant says that none of this is true. She was not politically active in Cambodia and she was not a currency trader. She does not fear persecution because of any political views. She did not prepare the statement and assumed that it must have been prepared by Pa-To
On August 1999, the application for a protection visa was lodged with the Department of Immigration. A delegate of the Minister rejected the application. On 16 February 2000, an application for review was lodged with the Refugee Review Tribunal. The applicant says that she did not sign it.
The applicant was invited to a hearing of the Tribunal. The response to the hearing invitation was returned to the Tribunal. The applicant acknowledges that she signed it and says she believes it is a document Pa-To asked her to sign. In answer to the question "Do you want to come to the hearing?" the "No" box is ticked.
The Refugee Review Tribunal affirmed the delegate’s decision on
15 December 2000. On 17 January 2001, the applicant sought Ministerial intervention under s.417 of the Migration Act. On 13 April 2001, she was advised by the Minister that he had decided not to exercise his power under s.417.
The applicant was granted a bridging visa on the same day she lodged a protection visa application. This visa ceased on 19 January 2001 following the decision of the Refugee Review Tribunal. Consequently, she became an unlawful non citizen. She did not lodge any further application for a bridging visa and remained in Australia.
On 5 September 2001, the applicant married an Australian citizen. She had met him after coming to Australia.
On 9 December 2003, the applicant was taken into immigration detention. She lodged an application in the High Court on
20 December 2003. She made the application with the help of a lawyer. The draft order nisi alleges jurisdictional errors without giving particulars. It does not refer to the claim which the applicant now makes.
On 31 December 2003, the applicant applied for a bridging visa. That was refused on 5 January 2004. She applied to the Migration Review Tribunal for review of the decision. On 16 January 2004, the Tribunal gave a decision which meant that she was issued with a bridging visa. The Migration Review Tribunal's reasons show that the evidence she gave before the Tribunal was consistent with the evidence she now gives.
A non citizen of Australia who wants a visa must apply for a visa of a particular class. That is required by s.45 of the Migration Act. Section 40 sets out certain requirements to be satisfied for a visa application to be valid. Applications are to the Minister. Section 47 requires the Minister to consider only a valid application and expressly enjoins the Minister not to consider an application that is not valid.
The applicant submits that in this case, the application for a protection visa was made without her consent or knowledge and without any understanding by her of the application or its nature. Therefore, she claims that it is not a valid application and should not have been considered by the Minister.
In Soondur v Minister for Immigration & Multicultural Affaires [2002] FCAFC 324, the issue was whether a child’s inclusion in a parent’s application for a protection visa precluded that child from lodging a further application because the child had made a previous application. The case turned on the nature of the particular application but Gray J., in discussing the capacity of a person under 18 to make an application, said at [35]:
It is trite to say that an act generally only has legal effect if the mind of the person performing it accompanies its performance. The making of an application by a person who lacks capacity to make such an application will not be regarded as an application.
An application for a protection visa signed by the applicant is not invalid simply because it is not completed in accordance with the directions contained in it (Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307 at [29]. The Full Court said that no suggestion was made on behalf of the applicant that he did not understand the nature of the application and that he did not have the capacity to make the application.
In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 160, Wilcox J. had to decide whether there had been a previous application for a protection visa. One of the matters was that the previous application was not made in the true name of the applicant. At [28] his Honour referred to the application being made in the true name of the applicant and said that once it is concluded that it was made on his behalf and with his knowledge and consent, the application must be regarded as having been "made" by him.
In cross-examination, it was put to the applicant that she met Dong Yin Chen and told her story through an interpreter. The applicant’s response was that she got advice from fellow Cambodians to ask for a protection visa. Her fellow countrymen advised her to apply for a protection visa. She consulted a solicitor for further advice (by that she meant the migration agent). She said she did not know what a protection visa is, she just wanted to stay in Australia. She was in fear but she did not fear the government in Cambodia. She said, to her, a protection visa meant to be safe in Australia. She got strong advice from Pa-To and she had decided she wanted to stay in Australia.
A visa is something that allows a non citizen of Australia to stay in Australia. A protection visa is available to a non citizen who meets the definition of Refugee in the Refugees Convention. The purpose of the Refugees Convention is to require countries that are signatories to the Convention to provide protection for non citizens who meet the definition of refugee.
In the context of this case, a protection visa is something that permits a non citizen who is entitled to protection to remain in Australia.
The applicant knew that she was applying for something called a protection visa. She believed that it would permit her to stay in Australia. She believed it was something which would make her safe in Australia. To obtain the visa she went with Pa-To to obtain advice from a "solicitor", in fact a migration agent. She acknowledges that she signed the protection visa application.
That the visa application contained false information is not to the point. I accept that the applicant did not know what the information was. I accept what she says about which signatures are hers and which are not. If she was to falsely deny any signature to support her case, it would be the one on the protection visa application, but she does not. The same applies to the signature on the response to hearing invitation. The conclusion is that she is being honest. There is no contrary evidence. The respondent has not chosen to call any expert handwriting evidence.
I accept that when the applicant says she was not given any explanation of what refugees are, or told that the applications do not often succeed, she is being honest. However, the probabilities are that during a meeting with the migration agent and Pa-To these things were discussed, but not to the extent or in a manner that the applicant really understood. What is significant is that the applicant understood what she was applying for, and authorised her application for a protection visa.
An alternate argument the applicant puts is that the principle of non est factum can be applied to these circumstances. Even if the principle does apply, the findings above mean that it does not succeed. Apart from that, the principle is not applicable. An application for a visa under the Migration Act is not analogous to a contract. The only issue is whether there is a valid application for a protection visa within the meaning of the Migration Act and the relevant part of the Migration Regulations. If it was a valid application, the Minister was required to consider it. If it is a valid application and it is rejected, it is a valid rejection.
These findings mean the application is dismissed. It commenced as an application for an order nisi but has proceeded as a final hearing. I will deal with the application by making a final determination, not by refusing to grant an order nisi.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 24 January 2006
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