SZBUV v Minister for Immigration
[2005] FMCA 1649
•10 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUV v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1649 |
| MIGRATION – Application to review Refugee Review Tribunal decision – refusal of a protection visa – applicant now admitting that protection visa application was false – applicant did not sign review application and gave no instructions for it to be lodged – RRT decision invalid as it lacked jurisdiction. COSTS – Applicant to bear Minister’s costs as the judicial review application was knowingly made on a false factual basis. |
| SZBQE v Minister for Immigration & Anor [2005] FMCA 1090 |
| Applicant: | SZBUV |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2346 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 10 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Court directs that the transcript of today’s hearing is to be obtained and provided to the Minister’s solicitors for the purpose of forwarding to the Department of Immigration and Multicultural and Indigenous Affairs.
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
A writ of certiorari issue quashing the decision of the Refugee Review Tribunal dated 23 June 2003 and handed down on 22 July 2003.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the judicial review application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2346 of 2003
| SZBUV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a decision of the Refugee Review Tribunal (“the RRT”) made on 23 June 2003 and handed down on 22 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts are contained in the Minister's outline of submissions filed on 7 November 2005. I adopt by way of background paragraphs 2 to 9 of those written submissions as follows:
The applicant is a 22 year old female and a national of Fiji. The applicant entered Australia on a student visa on 12 August 2001.[1] On 19 July 2002 the applicant lodged an application for a protection visa.[2]
[1] See Court Book (“CB”) 31.
[2]CB 1 to 31 and see reference to date of lodgement at CB 35.
The applicant claimed a well founded of fear of persecution in Fiji on the basis of her ethnicity being an Indo-Fijian. In the statement attached to the protection visa application the applicant claimed that:
a)she worked as a social worker for Indo-Fijian women in Fiji;[3]
[3] CB 26.
b)Indo-Fijians have been subject to systematic harassment and killing by native Fijians;[4]
[4] CB 27.1
c)she went into hiding during the dictatorship of George Speight and still fears for her life from his supporters due to her profile from her social work;[5]
[5] CB 27.3
d)she has been harassed many times, robbed and physically harmed but no action was taken against the perpetrators;[6] and
[6] CB 27.5
e)she escaped from Fiji on a student visa and came to Australia.[7]
[7] CB 28.1
The applicant did not provide any further information or documents to support her claims. The application was refused by a delegate of the Minister on 10 September 2002.[8]
[8]CB 35 to 40.
RRT proceedings
On 4 October 2002 the applicant lodged an application with the RRT for a review of the delegate’s decision.[9] The application stated that “Written submissions for review to be sent to you”.[10]
On 1 May 2003 the RRT wrote to the applicant and informed her that it was not prepared to make a favourable decision on the material before it and invited her to attend a hearing on 17 June 2003.[11] On 17 June 2003 the RRT received the “Response to Hearing Invitation”[12] signed by the applicant[13] indicating that she did not wish to attend the hearing.
The RRT affirmed the decision of the delegate to refuse the protection visa on 22 July 2003.[14]
The RRT’s decision and reasons
The RRT found it could not be satisfied that the events the applicant claimed actually occurred and that her fears were well founded because:
a)the applicant’s written claims lacked clarity and detail; and
b)the applicant failed to attend the hearing and thus the RRT was unable to gain evidence from the applicant to clarify her claims.[15]
In the alternative, the RRT found that based on the available independent country information it was not satisfied that Indo-Fijians were denied their basic rights and that there was not available effective state protection.[16]
[9] CB 45.
[10] CB 47
[11] CB 51.
[12] CB 54
[13] Compare her signature at CB 9, 25, 29 and on the applications to this Court.
[14] CB 61 to 75.
[15] CB 73.7
[16] CB 73.8
The present proceedings were commenced by an application for judicial review filed on 4 November 2003. The applicant subsequently filed an amended application on 10 June 2004. It was that amended application which the applicant chose to rely upon for the purposes of today's hearing, although for reasons that will become clear, the content of that amended application is essentially irrelevant.
When the time came for the applicant to address the Court she explained that she is not and never was a refugee and that the refugee claim that had been made on her behalf was entirely false. The applicant explained that she was a student and wished to remain in Australia to complete her studies. While the applicant said that she was afraid to return to Fiji, this was based upon a fear of her parents rather than any fear of persecution on a Convention ground.
The applicant said certain things about her dealings with a migration agent, Mr Sardar Ishaq Khan Saddozai. In the light of her statements, I decided that a short adjournment was required to make inquiries about Mr Saddozai and to enable the Court to take evidence from the applicant.
During the adjournment the Minister's legal representatives and my associate checked the Migration Agents Registration Authority website. We both located a decision concerning Mr Saddozai made on 14 February 2005. The decision summary states as follows:
On 14 February 2005, the Authority decided to cancel the Agent’s registration as the Authority was satisfied that the Agent lodged eight protection visa applications in which the claims were substantially identical to those of at least one other applicant. Additionally, the Authority was satisfied that the Agent lodged a protection visa application on behalf of another applicant without that applicant's knowledge or consent.
On the basis of the Agent's conduct in association with these protection visa applications, the Authority was satisfied that the Agent breached several clauses of the Code of Conduct, which demonstrated that:
·The Agent failed to deal with his clients competently, diligently and fairly and did not act in accordance with the law.
·The Agent failed to have due regard to his clients’ dependence on his knowledge and experience.
·In one case, the Agent did not act in accordance with the client’s instructions.
·The Agent made statements in support of the protection visa applications which he knew to be misleading or inaccurate.
·The Agent lodged vexatious or grossly unfounded protection visa applications.
·The Agent did not supply sufficient relevant information to the Department in respect of the eight protection visa applications to allow a full assessment of all the facts against the relevant criteria.
·The Agent failed to take all reasonable steps to maintain the reputation and integrity of the migration industry.
Additionally, the Authority was satisfied that the Agent’s conduct in association with the eight protection visa applications demonstrated that he is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
I took evidence from the applicant and she was also questioned by Ms Francois on behalf of the Minister. The applicant gave evidence that she entered Australia on a student visa and received notification of cancellation of that visa. Under cross-examination, the applicant acknowledged that the cancellation document (which I accepted as exhibit C1) was a document that she received concerning the cancellation of her student visa.
The applicant went to see Mr Saddozai to seek help in relation to her student visa. Mr Saddozai agreed to act on her behalf. The applicant stated, and I accept, that she was presented with various documents which she did not read. The applicant acknowledged that the signature on the protection visa application appearing on page 23 of the court book is hers. She consistently denied that the signature purporting to be hers on the authorisation of a person to act and receive communications on page 25 of the court book was hers. Although the signatures are similar, it is plausible that they are not the same. However, whether or not the applicant signed the authorisation on page 25 of the court book, there is no doubt that she did give instructions to Mr Saddozai to act on her behalf, although those instructions were probably directed towards assistance in relation to her student visa.
The applicant gave evidence, which I accept, that the statement of claim appearing on pages 26 to 28 of the court book in support of her protection visa application contains numerous falsities. The applicant denies that any of the claims in relation to a fear of persecution were true. The applicant also denies, and I accept, that she did not sign the review application appearing on pages 45 to 48 of the court book. A simple observation of the signature on page 48 of the court book purporting to be that of the applicant shows that it is completely different from the signature appearing on page 23 of the court book. It is also different from the signature purporting to be that of Mr Saddozai on page 25 of the court book.
The applicant denies any knowledge of the review application made to the RRT, although she was made aware of it after the RRT had dealt with the application. She denies giving any instructions to Mr Saddozai to make an application to the RRT on her behalf. I accept her evidence.
The consequence, in my view, is similar to that in SZBQE v Minister for Immigration & Anor [2005] FMCA 1090. If no valid application is made to the RRT, the RRT has no jurisdiction and a purported decision by the RRT in respect of the merits of that invalid application will itself be invalid.
I accept that the applicant did not make any application to the RRT. I accept that the review application purportedly made by her or on her behalf was not made by her and was not made on her instructions.
In the circumstances, there was no valid application before the RRT. The RRT decision purportedly made on that invalid review application is itself invalid and certiorari should be granted in order to quash the decision of the RRT.
I make no finding in relation to the protection visa application. It is unclear, in my view, whether that application was a valid one or not. The delegate’s decision is not challenged by the amended judicial review application. The applicant has given evidence, which I accept, that she sought Mr Saddozai's assistance in order to deal with the cancellation of her student visa. Nevertheless, she chose to sign a protection visa application without reading it and permitted Mr Saddozai to act on her behalf. In those circumstances, it may well be that the protection visa application made by the applicant was a valid one, although the factual basis for it was entirely false. I repeat that I make no finding on that issue.
The applicant seeks a further visa to enable her to complete her studies. She apparently wishes to study nursing. That is beyond the scope of these proceedings. The applicant will have to deal with the Minister's Department to seek what further decisions she may wish to obtain in relation to any other form of visa.
I asked the applicant in evidence whether Mr Saddozai assisted her in relation to the application in this Court. She said he did not. The decision to make application to this Court was hers; the original and amended applications made were hers. The applicant was aware that her protection visa application was false when she applied to the Court. She should have been aware that her review application was made on a false factual basis.
Although it is appropriate in the circumstances of this matter to grant certiorari to quash the invalid decision of the RRT, the Court's time and the time and resources of the Minister have been wasted. The Minister has incurred costs on a party/party basis of $4,500 in dealing with the judicial review application. It is appropriate that the applicant should bear those costs.
I will order that a writ of certiorari issue quashing the decision of the RRT made on 23 June 2003 and handed down on 22 July 2003. I will further order that the applicant pay the Minister's costs and disbursements of and incidental to the judicial review application, which I fix in the sum of $4,500.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 November 2005