SZBQE v Minister for Immigration

[2005] FMCA 1090

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQE v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1090

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in India – application to the RRT made without the knowledge or consent of the applicant – invalid application – RRT having no jurisdiction to review the decision.

Migration Act 1958 (Cth), ss.425, 426A

Minister for Immigration v Guo (1997) 191 CLR 559

Applicant: SZBQE

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG2148 of 2003

Judgment of: Driver FM

Hearing date: 3 August 2005

Delivered at: Sydney

Delivered on: 3 August 2005

REPRESENTATION

Counsel for the Applicant: Mr K Ginges, appeared pro bono publico

Solicitors for the Applicant: Juris Australia

Counsel for the Respondent: Ms T Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Court directs that the Refugee Review Tribunal be joined as the second respondent to the proceedings.

2. The Court directs that that name of the applicant is not to appear on the transcript of proceedings.

3. The Court declares that the purported application to the Refugee Review Tribunal dated 14 May 2001 was not a valid application because it was not made by the applicant or upon his authority and was not signed by him.

4. A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal.

5. No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2148 of 2003

SZBQE

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 4 June 2002 and handed down on 27 June 2002.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The general background relevant to this matter is set out in written submissions prepared on behalf of the Minister by Ms Wong.  I adopt for the purposes of this judgment as background paragraphs 3-19 of those written submissions together with the chronology annexed to those submissions:

   The applicant was born in Darushapa, India on 26 June 1976 and is a citizen of India: court book, pages 12-13.  He arrived in Australia as a student on 25 February 1997: court book, page 14.

   On 6 April 2001, the applicant made an application for a protection visa to the Minister for Immigration and Multicultural Affairs (“MIMA”): court book, page 1.  On 21 April 2001, the Minister’s delegate refused to grant the applicant a protection visa: court book, page 35.

   On 16 May 2001, the RRT received an application for review of the decision of the Minister’s delegate: court book, page 43.  On 17 May 2001, the RRT wrote to the applicant acknowledging receipt of the application and inviting the applicant to submit any new documents or written evidence in support of his claims: court book, page 48.   

   On 10 April 2002, the RRT invited the applicant to a hearing, and informed the applicant that the RRT had “looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone”: court book, page 52.

   On 14 May 2002, the invitation sent to the applicant at the Auburn address stated in his review application was returned unopened to the RRT: court book, page 54.  On 15 May 2002, the invitations sent to the applicant and the applicant’s adviser at the Berala address stated in his review application were returned to the RRT, with the notation “No longer our client”: court book, pages 52, 57.

   On 27 June 2002, the RRT sent a letter to the applicant, notifying the applicant of the RRT’s decision to affirm the decision of the Minister’s delegate: court book, page 61.

   On 14 October 2003, the applicant filed an application in this Court for review of the RRT’s decision.  On 29 July 2005, the applicant served upon the respondent an amended application in draft form (the “Amended Application”).

   See Appendix A for a full chronology of relevant events.

   The applicant’s claims

   The applicant claims to have a well-founded fear of persecution arising from his political views and Muslim religion.  In a letter annexed to his original application, the applicant made the following claims (court book, pages 28-30):

   a)the applicant was a student politician;

   b)on one evening, the applicant was confronted by a group of young men who demanded that he stop taking part in political events and quit supporting “the delegation of his choice”;

   c)the young men started to push the applicant around and on several instances threatened him with knives, hockey sticks and steel bars;

   d)the applicant refused to give in and managed to escape the felons.  The applicant received frequent threats;

   e)the applicant was later implicated in a murder by the felons.

   The applicant claims that he is being threatened, alienated and tormented because of his political beliefs, and that if he continues to live in India, he will either be killed or he will kill himself: court book, page 29.

   The RRT’s decision

   After reviewing the legal principles applicable to determining the applicant’s claims, the RRT then reviewed the procedure that had been followed prior to making its decision.  The RRT noted that it had invited the applicant to give oral evidence and present arguments at a hearing on 4 June 2002: court book, page 68.  The RRT noted that no response had been received to its invitation and that the RRT’s letter was returned unopened: court book, page 68.

   The RRT confirmed that it was in possession of the most recent address provided by the applicant, and conducted a movements check to ensure that the applicant was still in Australia: court book, page 68. The RRT noted that the applicant did not appear before the RRT on the day and at the time and place at which he was scheduled to appear. The RRT then proceeded to reach its decision under s.426A of the Migration Act 1958 (Cth) (“the Migration Act”): court book, page 68.

   The RRT then reviewed the applicant’s claims and evidence provided to the RRT.  The RRT noted that “it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out” and referred to the decision of Minister for Immigration v Guo (1997) 191 CLR 559 at 596: court book, page 69.

   The RRT stated that the applicant’s claims were “so vague and indistinct that it [is] impossible to establish the real facts of this case”: court book, page 70.  The RRT noted that the applicant had failed to provide details or information regarding the following matters (court book, page 70):

   a)the nature of the politics in which the applicant was implicated, whether he was involved in any particular party or movement, or the nature of the political activities in which he was involved;

   b)the identity of the “felons” who demanded that the applicant stop his political activities, why they specifically targeted the applicant, or when the incident happened; and

   c)the nature of the threats received by the applicant, including the form that the threats took, who specifically made the threats, whether any of the threats were ever carried out, or whether or not the applicant approached the police to report these threats.

   The RRT held that the applicant’s claim to have been implicated in a murder lacked credibility, as it was inconsistent with the applicant’s ability to depart India and later to return to India without difficulties and on a passport obtained legally and in his own name: court book, page 70. 

   The RRT concluded (court book, page 71):

   “As a result of the applicant’s lack of detail and vagueness, the Tribunal cannot be satisfied that the applicant has a well founded fear of harm for a Convention reason.”

   The RRT affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant: court book, page 71.

Date	Event	Reference
25/02/97	Applicant arrives in Australia	court book, page 14
06/04/01	Applicant lodges application for Protection Visa	court book, page 1
21/04/01	Minister’s delegate refuses grant of Protection Visa	court book, page 35
16/05/01	RRT receives application for review of delegate’s decision	court book, page 43
17/05/01	RRT acknowledges receipt of the application	court book, page 48
10/04/02	RRT invites Applicant to a hearing	court book, page 50
14/05/02	Invitation sent to Applicant at Auburn address is returned to RRT	court book, page 54
15/05/02	Invitation sent to Applicant at Berala address is returned to RRT	court book, page 52
27/06/02	RRT notifies Applicant of its decision that the Applicant is not entitled to a protection visa	court book, page 61
14/10/03	Applicant files application for review of RRT’s decision
29/07/05	Applicant serves draft amended application

1. The applicant relies upon his amended application filed in court by leave today. The ground of that application is that the RRT fell into jurisdictional error by virtue of its failure to comply with the requirements of s.425 of the Migration Act or to afford the applicant procedural fairness, presumably under the general law. Three particulars are provided referring to asserted, subjective and objective unfairness arising out of the applicant's asserted ignorance of the RRT application purportedly made on his behalf by his migration agent.

2. The application is supported by two affidavits by the applicant, the first made on 8 October 2003 and the second made on 27 July 2005.  The Minister relies upon the affidavit of Amber Jordan Hawkes made on 1 August 2005.  I also received as evidence the court book filed on 19 February 2004. 

3. I required the applicant to give oral evidence in relation to his affidavits.  I asked the applicant a number of questions about the documents purportedly bearing his signature.  The applicant repeatedly denied that what purports to be his signature on the application to the RRT on page 46 of the court book is his.  He denied any knowledge of the RRT application.  He denied authorising his then migration agent to sign his name or to lodge an application to the RRT on his behalf.

4. The applicant told me that he did instruct his migration agent to lodge a protection visa application on his behalf and he recalled signing at least one document that he understood was that application.  Despite initial uncertainty he ultimately stated that the signature appearing on the protection visa application on page 8 of the court book was his.  He denied that the signatures appearing on pages 23 and 26 of the court book are his.  The applicant could not identify from the court book any other documents bearing his signature.

5. While the applicant's evidence was, in the course of the questioning, somewhat inconsistent and at times confused he was adamant that he had not made or authorised to have made on his behalf an application to the RRT.  He was somewhat equivocal on what he had done in relation to his protection visa application. 

6. On the basis of his evidence I am prepared to accept that the applicant did make a protection visa application and appointed his migration agent to act on his behalf in relation to it.  I am also prepared to accept on the basis of the applicant's evidence that he did not authorise his migration agent to make any application to the RRT on his behalf.  Neither did the applicant make his own application to the RRT.  It appears that what occurred, based on the applicant's written and oral evidence, is that his migration agent, seeking to protect his interests, made an unauthorised application to the RRT, being the document commencing on page 43 of the court book.  It appears that the applicant was out of contact with his migration agent for a significant period and was not aware what was happening.

7. The applicant, in the witness box, denied receiving notice of the decision of the delegate contained in the letter from the Department appearing on pages 35 and 36 of the court book.  However, it is apparent that the applicant had appointed his agent his authorised recipient in relation to his protection visa claim.  That document appears on page 31 of the court book.  The notice of the delegate's decision was sent to the agent as appears from page 36 of the court book.  In the circumstances, the Minister's Department met its obligation to notify the applicant through his agent of the delegate's decision. 

8. I accept that the applicant was in ignorance of the delegate’s decision and was in ignorance of the purported application made to the RRT on his behalf. In these circumstances, the challenge to the RRT decision based on a breach of s.425 of the Migration Act and procedural unfairness under the general law is misconceived. No application had been made to the RRT by or on behalf of the applicant. The purported application made to the RRT was unauthorised. There was no valid application before the RRT. In the circumstances, there was nothing for the RRT to review. It had no jurisdiction.

9. The decision made by the RRT is accordingly vitiated by jurisdictional error.  The decision is therefore not a privative clause decision and constitutional relief should be granted in respect of it.

10. Unfortunately for the applicant, that avails him little because, in the absence of a valid application having been made to the RRT, there is no basis upon which the Court can compel the RRT to make another decision.  When I pointed this out to Mr Ginges he considered his position and accepted that the application for a writ of mandamus should be withdrawn.  He pressed the application for a writ of certiorari and also sought a writ of prohibition in respect of the RRT decision.  I see no need for a writ of prohibition because once the decision of the RRT is quashed there is nothing on which the Minister could rely other than the decision of the delegate.

11. The applicant may wish to approach the Minister to request that the Minister permit a second protection visa application to be made pursuant to s.48B of the Migration Act. It would be prudent in considering any such application if the Minister's Department and legal advisers had available to them the transcript of today's hearing. The applicant's evidence in relation to what he did and did not do would be relevant to the consideration of any such request.

12. I will grant a writ of certiorari quashing the decision of the RRT. 

    
    

    I refuse the application for a writ of prohibition and I note that the application for a writ of mandamus has been withdrawn.  It is appropriate in the unusual circumstances of this case for the Court also to make a declaration as to the legal status of the decision of the RRT.

13. As to costs, I have decided that there should be no order as to costs.  It should, in my view, have been apparent to both parties on the basis of the applicant's first affidavit that there was a real issue as to the jurisdiction of the RRT if the applicant's evidence that he had not authorised any RRT application was accepted.  Neither party has been wholly successful.  The applicant has succeeded in overturning the decision of the RRT but has failed to obtain a re-hearing.  The Minister has failed to sustain the decision of the RRT but is under no obligation to further deal with the protection visa application.  I will order that there be no orders as to costs. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  9 August 2005