SZEQQ v Minister for Immigration
[2005] FMCA 890
•15 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQQ & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 890 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decisions of the RRT affirming a decision of a delegate of the Minister not to grant the applicants a protection visa – applicants are citizens of China – where applicants did not attend the RRT hearing – delay. PRACTICE & PROCEDURE – Migration agent – discrepancies in applications for protection visas. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 477 |
| Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 |
| First Applicant: | SZEQQ |
| Second Applicant: | SZEQS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3255 of 2004 & SYG3261 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 June 2005 |
| Date of Last Submission: | 15 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2005 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondent: | Ms Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applications are dismissed.
Applicant SZEQQ is to pay the Respondent’s costs fixed in the sum of $6,200.00.
Applicant SZEQS is to pay the Respondent’s costs fixed in the sum of $6,300.00.
I DIRECT that the Registrar of the Federal Magistrates Court of Australia refer these proceedings to the appropriate authority that oversees the activities of Migration Agents in Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3255 of 2004 and SYG3261 of 2004
| SZEQQ |
First Applicant
| SZEQS |
Second Applicant
And
| MINISTER FOR IMMIGRATION &MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The Applications before the Court are applications to review two decisions of the Refugee Review Tribunal. The applicants are husband and wife. They arrived in Australia on 12th August 1997. They each lodged an application for a Protection Visa on 11th August 1997.
The documents show that they each sought the advice of Migration advisor, whose name is Jimmy Ji. This person operated a business under the name of Rong Hua International Service. The address of that business was PO Box 941, Marrickville. The telephone number was a mobile telephone number.
The applicants claim a well-founded fear of persecution for a convention reason. They say that they are married and have a child living with family in China. In their submission filed for the purpose of these proceedings, they refer to the impact on their lives of the one-child policy in China and the fact that the wife was coerced or bullied or otherwise forced into undergoing more than one abortion to end subsequent pregnancies. Eventually, she said that she was unable to become pregnant again.
The applicants say that when they consulted the Migration advisor, he asked them to sign blank documents. They did not and do not read English or speak English. The two applications for a Protection Visa, although apparently prepared and filed on the one day, were prepared by an advisor and not by the applicants themselves. All the applicants did was sign a blank form. Whilst the documents showed the parties as having the same Migration Agent and living at the same address with the same telephone number, they differed greatly in a number of particulars.
The particulars which varied included such basic particulars as the date of the parties’ marriage. According to the husband’s application, he and the wife were married on 26th October 1987. According to the wife’s application, she and the husband were married on
16th October 1985. It seems unusual that the parties had given this information to the agent on the same day that their memories of the date of their marriage would vary so widely. An examination of the copies of the applications that appear in the Court Book show that they are in the same handwriting.
What is even more unusual is that the two applications prepared on the one day allege that the parties were in fact married to two different people. They each allege that the parties have a child but the name of the child is different in each application. The birth of the child differs substantially by over three years. It is unlikely that those discrepancies are the result of an oversight. It is a statement of the obvious that people who are married to each other, even if they cannot remember the exact date of their wedding, are normally able to remember the name of their spouse and the name and age of their child.
As it appears that the parties themselves are unable to read or write English, and that the documents appear to have been completed by the one person, it is a reasonable inference that the person who prepared the documents is the one responsible for the major discrepancies in the place of details. The documents indicate that the Migration Agent Jimmy Ji was acting for the parties. Even though the applications were lodged on the same day, the fact that the applications said that the parties were married to two other people and were the parents of two different children appears to have led to the fact that the applications were not considered together. On their face, they give no indication that the parties were a couple. The reverse situation is true.
The Department of Immigration and Multicultural Affairs considered the applications on separate dates. The applications were considered by separate case officers. In each case, however, the decision was unfavourable to the particular applicant. The two decisions were made by the Department on separate dates, months apart. The husband’s application was refused on 21st October 1997. The wife’s application was refused on 11th March 1998.
The parties went to the same Migration Agent and lodged applications for review with the Refugee Review Tribunal. The husband’s application was lodged on 5th November 1997. The wife’s application was lodged on 9th April 1998. In each case, the application showed the name of the same Migration advisor, Jimmy Ji. Between the times of lodging the two applications, the parties had moved from one address to another. Not surprisingly, the Refugee Review Tribunal considered these applications separately. There was nothing to indicate that they should be considered together. In each case, the Refugee Review Tribunal was not satisfied that the material provided was sufficient to allow it to make a favourable decision, based on that information alone.
Accordingly, the Tribunal appointed a hearing date for the husband’s application on 9th September 1998. The Tribunal appointed a hearing date for the wife’s application on 8th October 1998. The letter to the husband was sent to the original address and the letter to the wife was sent to the later address. By that time, it seems that the parties had moved to yet another address in the same suburb. In any event, on
13th August 1998, the Court Book shows at page 50 that the Refugee Review Tribunal re-sent the letter to the wife about her hearing care of the PO Box of Rong Hua International Services, the business name of the migration agent.
In neither case did the parties attend the hearing. In each case, the Refugee Review Tribunal took the decision, which was open to it, to consider the application on the basis of the material that was before the Tribunal. In each case, it is not surprising that the Tribunal was not satisfied that the applicants had made out their case. It is not surprising because, under the provisions of s.425 of the Migration Act, the Tribunal is only obligated to list the matter for hearing if it is not satisfied that it can make a decision favourable to the applicant on the basis of that information.
That had been the situation in each case and the Tribunal did what
s.425 required of it by writing the two letters, one to each applicant, advising them of this situation and inviting them to attend a hearing. The applicants say that they did not receive those letters, even though they informed their Migration Agent of their change of address.
There does not appear to be any document on the file before me that shows that the Tribunal ever received any indication of a change of address.
In any event, in each case, the Migration Agent was on the record as acting for the applicants. It is hardly surprising that the Tribunal, when considering the scant material that was available to it in each case, was not satisfied that the particular applicants had met the relevant criteria for a Protection Visa. In each case, the Tribunal affirmed the decision not to grant a Protection Visa to the applicant. The applicants say that the Migration Agent told them that they should not worry and that it could take two or three years for the Tribunal to make a decision.
In any event, nothing appears to have happened, from the applicants’ point of view, until the two of them were taken into Immigration detention. It was then, they say, that they were made aware of the fact that the Refugee Review Tribunal had made decisions unfavourable to them several years beforehand. Accordingly, the applicants then lodged their applications with the help of a friend inside the detention centre. In each case, the applications failed to set out any grounds pointing to a jurisdictional error.
The two applications, which are dated 3rd November and
4th November 2004, set out these grounds:
I am a Chinese citizen and came to Australia on 12th July 1997.
I don’t support the Chinese political system.
And there are slight variations from then on. The second ground in each case is this:
The Tribunal relied crucially upon advice received by it from the Department of Foreign Affairs and Trade in regard to the validity.
The third ground in the husband’s application is:
The Department of Foreign Affairs and Trade was unable to obtain information to either confirm or vary its earlier advice about the form, and hence validity, of official documents tendered to the Tribunal.
The third ground in the wife’s application is quite different. It says:
The Tribunal was in error in ascribing a non-political significance as there was no evidence before it to support that opinion.
The fourth ground in each case is this:
In 1998, RRT made a decision. RRT ignored few fact and evidence from my side and make an error in the decision.
The grounds set out in the applications do not show any basis for jurisdictional error. In the respondent’s submissions in respect of the husband’s case, Ms Francois of counsel says that the first two grounds bear no relationship to the RRT’s decision. The RRT did not rely upon any information from the Department of Foreign Affairs and Trade and no official documents were tendered. In respect of the remaining part of the husband’s application, Ms Francoise submits that in the decision the Refugee Review Tribunal did not set out the applicants’ claims clearly, and decided it could not be satisfied as to the relevant facts because the claims were general and lacking in detail. A similar submission was made in respect of the wife's case.
Insofar as there is a suggestion that the applicants may have been denied natural justice because of the reliance by the Refugee Review Tribunal on independent country information with respect to the Chinese government’s change in policy in the late 1970s, Ms Francois, for the respondent, points out that there were three issues that the Court needed to consider:
(a) There was no s. 424A or an equivalent in the Migration Act 1958.
(b) That the wife was in fact provided with copies of independent country information relied on by the Tribunal before the hearing.
(c) That the information used in the wife’s case was in the public domain and uncontroversial.
And finally, it was submitted that the inordinate and unexplained delay of six years in making an application for review should have led the Court to decline to grant relief, due to the inordinate and unexplained delay. Ms Francois referred to Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 per McHugh J at paragraph 16. During the course of the proceedings, Ms Francois of counsel made the point that the applicants appeared to have been poorly served by the Migration Agent. With respect, that seems to be a most generous understatement.
In each case, the Refugee Review Tribunal held a hearing which it tried to invite the applicants to attend. The Refugee Review Tribunal wrote to the applicants at the appropriate addresses and care of the Migration Agent, at least in respect of the wife, and received no reply.
The Tribunal therefore cannot be criticised in each case for proceeding to deal with the matters on the basis of the information already before it, rather than adjourning the proceedings to another day. There was no indication in either case that if the proceedings were adjourned, there would be any greater likelihood of one or other applicant attending on that occasion than had been the case of the present hearing.
I have read the Tribunal’s decision. True it is that the Decision of the Refugee Review Tribunal in the case of SZEQS, made on
23rd September 1998, is very sparse. As the applicant had not attended the hearing, the Tribunal had very little information upon which to rely. Nevertheless, the summary that appears on page 59 of the Court Book is, to my mind, a clear and accurate summary of the applicant husband’s case and its internal issues.
The wife’s Tribunal Decision, prepared by another Tribunal member, is somewhat lengthier and more detailed. It contains a thorough examination and the setting out of the facts. The Tribunal’s description on page 59 of the Court Book, in the case of SZEQQ sets out an appropriate statement of the principles to be observed and I cannot, from my own independent examination, identify any error.
The findings and reasons in the Decision in SZEQQ’s case extend from the bottom of page 59 of the Court Book to the bottom of page 61, and set out a clear and concise account of the applicant wife’s case.
It is, of course, trite law that fact finding is a task for the Tribunal par excellence. It appears to me from my independent examination of the decisions that there was evidence before the Tribunal that enabled it to make the findings that it did. I cannot identify any jurisdictional error. The sad fact is that the applicants did not attend the Tribunal hearings. It is well known, both in this Court and the Federal Court, that applicants who do not attend the hearing of the Tribunal find themselves at an enormous disadvantage. In many cases, it is a disadvantage too great to overcome, and this is just such a case.
I am not satisfied that there is any ground for finding that the Tribunal failed in some way to give the applicants the opportunity to attend the hearing. The reverse appears to be true. The Tribunal did forward the appropriate letters; I am satisfied from the affidavit evidence in this regard, to the applicants at the applicants’ last known addresses.
The evidence shows that the Tribunal re-sent a letter about the hearing date to the applicants’ Migration advisor. None of these letters appears to have produced any response at all. I find no error or failing on the part of the Tribunal in its attempts to advise the applicants of the hearing date and the need to attend the hearings.
I am satisfied that there is no reviewable error, and each application must be dismissed. That said, it is hard not to feel some empathy toward the two applicants. The case of the applicants appears to be that they placed their trust in the Migration Agent Jimmy Ji of the Rong Hua International Service, P.O Box 941, Marrickville, New South Wales. The applicants did not speak, read or write English, and needed someone upon whom they could rely to prepare and file their applications and advise them of the need to take the necessary steps to have their applications dealt with.
The material before me indicates that the applicants did not receive any satisfactory assistance. Indeed, the blatant discrepancies between the details of the parties’ spouses, dates of marriage, names of the parties’ child and the child’s date of birth are so blatant as to raise a considerable degree of concern in my mind. It is unthinkable that these discrepancies in the information taken from two people on the one day could be so basic as to indicate mere negligence or even recklessness. I am mindful of the fact Mr Jimmy Ji, the Migration advisor, whose business activities seem to be unusual, to say the least, has not taken part in these proceedings, nor has he been invited to do so.
He may well have an explanation as to why, on the wife’s statements, he was too busy to see the parties in his office on occasions, but saw them on the second floor of a restaurant or at a railway station to collect money. In my view, whilst it is of little comfort to the applicants, the circumstances that appear in the material before me about the activities of this particular agent are in such concern that I intend to direct the Registrar of the Federal Magistrates Court to refer these proceedings to the appropriate authority that oversees the activities of Migration Agents in Australia.
To my mind, these matters need to be investigated so that parties who wish to apply for a visa to live in this country should be able to be confident in the ability and probity of the parties in whom they place their trust and to whom they give their money. Whether this will benefit the applicants is a moot point. There is, unfortunately for the applicants, no reviewable error, and I am obliged to dismiss the applications.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 27 June 2005
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