SZGJO v Minister for Immigration & Anor
[2005] FMCA 1349
•15 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGJO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1349 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China by reason of his practice of Falun Gong – RRT had no jurisdiction as the review application was not made by the applicant or on his instructions – whether the applicant had made a valid protection visa application considered – visa application not made by the applicant but upon his instructions – whether, if there was no valid application, relief should be refused in the exercise of discretion considered. |
| Migration Act 1958 (Cth), ss.46, 47, 48A, 48B, 98, 424A, 426A Migration Regulations 1994 |
| Minister for Immigrationv Li [2000] FCA 1692 NAJT v Minister for Immigration [2005] FCAFC 134 NAWZ v Minister for Immigration [2004] FCAFC 199 SZBQE v Minister for Immigration [2005] FMCA 1090 |
| Applicant: | SZGJO |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1344 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 15 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hirsch |
| Counsel for the Respondent: | Ms S McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Court declares that the purported application to the Refugee Review Tribunal dated 7 August 2002 was not a valid application because it was not made by the applicant or upon his authority and was not signed by him.
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1344 of 2005
| SZGJO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 28 July 2003 and handed down on 21 August 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had purportedly made a claim of persecution based upon his practise of Falun Gong. The issue in these proceedings is whether the applicant made valid visa and review applications.
The applicant, a citizen of the People’s Republic of China (court book, page 2), arrived in Australia on 15 April 2002 (court book, pages 3 and 27). He arrived on his own passport issued in Guangdong on 26 November 2001 (court book, pages 3 and 25), on a temporary business visa issued in Guangzhou on 15 March 2002 (court book, pages 3 and 26).
On 14 May 2002, the applicant purportedly lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) pursuant to the Migration Act 1958 (Cth) (“the Migration Act”) (court book, pages 1-28). A delegate of the respondent refused to grant a protection visa on 12 July 2002 (court book, pages 33-39). The applicant purportedly applied to the RRT for a review of that decision on 7 August 2002 (pages 40-43), and on 21 August 2003, the RRT affirmed the decision not to grant the applicant a protection visa. The decision was handed down on 21 August 2003.
On 23 May 2005, the applicant filed an application for judicial review of that decision. On 14 June 2005, the respondent filed a notice of objection to competency. On 13 July 2005, the applicant filed an amended application for review. The applicant is currently held in immigration detention.
The application before the Court extends beyond the decision of the RRT to seek to impugn the decision of the Minister’s delegate. This is on the basis that neither the delegate nor the RRT had any jurisdiction to exercise as no valid protection visa application and no valid application to the RRT had been made.
The purported application for a protection visa
The applicant purportedly set out his original claims for refugee status in a protection visa application (court book, pages 6-10). The applicant purportedly claimed to have been detained for 17 days as a result of going to the Appeal Office in December 2001 to “say that Falun Dafa is good out of my concern and responsibility”. He also purportedly claimed to have been sent to labour camp “shortly after” for signing a petition “asking [for] peaceful dialogue between the government and the Falun Gong practitioners” to resolve the issue (court book, page 7). At page 8 of the court book, he purportedly outlines the hardship he claims he suffered which was aimed to force him to “give up [his] beliefs”.
In his purported application for review to the RRT, the applicant claimed to be a “Falun Gong member” (court book, page 42.3), of “being Falun Gong” (court book, page 42.5) and also subject to persecution because of his “religion” (court book, page 42.6). He also purportedly stated he had participated in a protest supporting Falun Gong, and as a result he had been imprisoned and tortured (court book, page 42.3).
The RRT invited the applicant to a hearing pursuant to s.425 of the Act by letter dated 6 June 2003 (court book, page 46-47). According to the letter itself, it was sent to:
(1)the applicant, care of the organisation at which his authorised recipient worked;
(2)the authorised recipient at his address; and
(3)the applicant at his home address.
The applicant had purportedly noted his home address, his mailing address, and his authorised recipient’s details in the application for review (court book, pages 40-41). The mailing address of the applicant and that of his adviser were identical. In a “checklist” prepared by an officer of the RRT, it was noted that the adviser stated his firm no longer represented the applicant[1]. The applicant failed to attend the hearing, and the RRT proceeded to make its decision pursuant to s.426A of the Act without taking any further action to enable the applicant to appear before it.
[1] See also letter from that firm at court book, page 48 which set out the difficulties it had had in contacting the applicant by both letter and telephone.
The RRT decision
The RRT accepted that the applicant was a national of the People’s Republic of China. However, it found the applicant’s claims to be vague and general and lacking in critical information (court book, page 62.1). The RRT noted that he did not say where and with whom he practised Falun Gong (if he practised), who was his leader, how often he practised or what exercises he practised, and therefore had “great difficulty” in accepting that he was a Falun Gong practitioner (court book, page 62.4). The RRT also found it of significance that he did not claim to have practised Falun Gong since his arrival in Australia 14 months before. However, the RRT found it of more significance that the applicant claimed that Falun Gong was a “religion”. The country information showed that Falun Gong was not a religion. The RRT stated that it accepted the country information over the unsubstantiated claims made by the applicant “and is satisfied that if the applicant was indeed a Falun Gong practitioner, he would not have claimed it was a religion” (court book, page 62.9). Accordingly, the RRT did not accept that the applicant was a Falun Gong practitioner and found that it raised doubts about his credibility.
The RRT, however assessed the applicant’s other claims which it found were not necessarily dependent upon him being a Falun Gong practitioner. Because these claims lacked certain details set out by the RRT, because the applicant had provided no evidence to support his claims, and in light of the RRT’s previous findings, the RRT did not accept those claims (court book, page 63).
The RRT also found it of significance that the applicant had departed China legally, had not been visited by the authorities at home or work despite stable employment and residence, and his family had not been harassed by the authorities seeking to ascertain his whereabouts. The RRT concluded that the applicant was of no interest to the authorities and purportedly affirmed the delegate’s decision.
The judicial review application
The form of application ultimately relied upon by the applicant was a second further amended application filed by leave in court on 15 September 2005. In that application the applicant claims:
(1)A declaration that the application for a protection visa dated 13 May 2002, was not a valid visa application within the meaning of s.46 of the Migration Act.
(2)A declaration that s.48A of the Act does not preclude the applicant from making a valid application for a protection visa.
(3)A declaration that the decision of the delegate of the first respondent dated 2 July 2002 is invalid and of no effect.
(4)Alternatively to (3) an order referring the decision back to the second respondent, subject to a direction that the second respondent set aside the decision of the delegate of the first respondent on the basis that the applicant’s application dated 13 May 2002 was not a valid application and s.47(3) of the Act precluded that delegate from considering it.
Alternatively, if there was a valid visa application:
(5)A writ of certiorari quashing the decision of the second respondent dated 21 August 2002.
(6)A writ of prohibition prohibiting the first respondent, her officers, servants and agents, from acting upon, giving effect to, or proceeding further upon the decision of the second respondent dated 21 August 2003.
(7)A writ of mandamus requiring the second respondent to determine the applicant’s application for a protection visa according to law.
And further:
(8)An application to extend time to file this application, to the extent that this is deemed necessary.
(9)An order that the first respondent pay the applicant’s costs as agreed or assessed.
(10)Such further and other orders as this Honourable Court deems fit.
The judicial review application contains the following grounds:
1.The purported application for a protection visa dated 13 May 2002 (“the visa application”) was not a valid visa application within the meaning of section 46 of the Act. Consequently there was no decision of the First Respondent (“the delegate”) for the Second Respondent (“the Tribunal”) to review.
Particulars
a)Regulation 2.07(3) of Migration Regulations 1994 provides that to be a valid visa application the application must be completed by the Applicant.
b)The application was not completed by the Applicant nor was it prepared by his migration agent on his instructions. Specifically,
i)The application was drafted by a migration agent.
ii)The Applicant did not sign the application.
iii)The information that is the substance of the visa application (being the matters contained in paragraphs 40-44 of the application) was not written by the migration agent on instructions by the Applicant.
iv)The information purported to contain the Applicant’s residential address and phone number was not and never had been the Applicant’s residential address and phone number.
2.In the alternative, if there was a valid visa application, the Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider all available information in breach of s 424A of the Act and this led to a failure to properly exercise its discretion under s 426A in proceeding to hear the application in the absence of the Applicant.
Particulars
a) The Tribunal knew before the hearing on 28 July 2003 that
i)the invitation sent to the Applicant’s nominated home address had been returned unopened
ii)the Applicant’s migration agent had left the firm whose address had been given as his address, and
iii)the migration agency did not act for the Applicant.
b)The Tribunal should have permitted steps to be taken to contact the migration agent who had left the firm and who, on the evidence, could have contacted the Applicant.
The Applicant further submits that Tribunal’s decision was affected by jurisdictional error in that it breached section 424A of the Act.
Particulars
a)A reason or part of the reason for the Tribunal’s decision to affirm the decision of the delegate was an adverse finding of credit against the Applicant.
b)The information which formed the basis of the Tribunal’s reasoning included:
i)The return of the invitation to the hearing before the Tribunal leading to an inference that the Applicant “chose not to attend”; and
ii)The conflict between information in the application for review and the original visa application.
c)Particulars of this information and an invitation to comment was not issued to the Applicant in breach of s 424A of the Act.
The evidence
I accepted the book of relevant documents (the court book) filed on 29 June 2005 as evidence. I also received the following affidavits:
a)the applicant’s affidavit made on 31 August 2005 and filed on 1 September 2005;
b)two affidavits by Jane Sun (a NAATI accredited translator), both made on 1 September 2005 and filed on the same day;
c)two affidavits by Sonia Sarah Harris (solicitor for the Minister in these proceedings) made on 17 August 2005 (filed on 18 August 2005) and 15 September 2005 (filed on 16 September 2005).
Only the applicant was required for cross-examination.
I permitted Mr Hirsch to lead additional oral evidence from the applicant. He was assisted throughout by a Cantonese interpreter. The applicant gave evidence that he had been asked by the Minister’s Department to co-operate in an investigation into the conduct of his former migration agent and had agreed to do so. I accepted as an exhibit a business card provided by a DIMIA officer who interviewed the applicant at the Villawood Detention Centre. A statement by the applicant for the purposes of the DIMIA investigation was prepared as a result of that interview and the applicant signed it. I accepted that statement as an exhibit[2]. I also accepted as an exhibit a tax file number advice to the applicant.
[2] exhibit R1
Under cross-examination the applicant proved to be a watchful, cautious and at times pedantic witness. Although he said that his statement, being exhibit R1, was true, when taken to matters of detail in it he said that he was not clearly aware of all of the details in his statement and that it was not translated for him line by line. The applicant corrected matters of detail in paragraph 6, paragraph 8 and paragraph 11 of exhibit R1. He nevertheless adopted the substance of that statement. Much, but not all, of the contents of exhibit R1 is repeated in the applicant’s affidavit. In cross-examination on his affidavit the applicant said that he paid 100,000 yuan in order to arrange to leave China. Prior to leaving China he was told by a friend that a “solicitor” now known to him as Jason Shiao (a registered migration agent) would be able to assist him in obtaining a visa in Australia. The applicant went to see Mr Shiao and paid him $5,000 to arrange a visa with the right to work. This followed an initial payment of $1,000.
The applicant said that he provided information to Mr Shiao on two occasions. The first occasion was in a telephone conversation of about 20 minutes prior to his first visit to Mr Shiao’s office. In that conversation the applicant told Mr Shiao about his alleged persecution in China due to his practice of Falun Gong. The applicant also spent about 10 minutes with Mr Shiao in May 2002 when he provided personal details.
The applicant was somewhat equivocal as to what documents he signed. At one stage he said that he only signed receipts for payment of money. He departed from that evidence to say that he signed a service agreement with Mr Shiao. The applicant stated that he asked Mr Shiao to make a protection visa application for him. He understood that Mr Shiao would do so. Later, in December 2002 the applicant spoke to Mr Shiao by telephone to enquire how his application was going. He was told that it was “in progress”. In response to a question from me, the applicant said that he understood that his protection visa application was being considered by DIMIA. He denied knowing at any stage that his protection visa application had been refused by the delegate. The applicant stated that the residential address details given for him in the protection visa application[3] are false and that he has never lived at that address. He also stated that details concerning his claim for protection were false and not based upon the information he gave Mr Shiao.
[3] court book, pages 4 and 23
The applicant stated that Mr Shiao took no notes during the face to face interview he had with him. Nevertheless, he understood following that interview that Mr Shiao would prepare and lodge a protection visa application on his behalf.
I asked the applicant whether the signatures appearing on the purported protection visa application[4] and in the purported application to the RRT[5] were his. He denied it. He stated that none of the signatures purporting to be his on those documents were in fact his. I invited the applicant to compare the signatures on the protection visa application and the RRT application to the signatures that he acknowledged were his on exhibit R1. Although the signatures appeared to me to be similar the applicant pointed out minor differences to me, namely the slope of the characters and the detail of the second character.
[4] court book, pages 22 and 23
[5] court book, page 43
In response to further questions from me, the applicant admitted that he had given instructions to Mr Shiao to lodge a protection visa application on his behalf and he understood from Mr Shiao that such an application had been prepared and lodged and that DIMIA was considering it. I asked the applicant whether he gave any instructions to Mr Shiao as to what to do if the protection visa application was refused. He said that it was his expectation that Mr Shiao would contact him to discuss any such matter. He said that he gave no instructions to Mr Shiao to lodge any application to the RRT and the purported application to the RRT was not made on his instructions. He stated that at no time did Mr Shiao inform him that his protection visa application had been refused or seek instructions to lodge a review application to the RRT.
Submissions
The applicant was ably represented by David Hirsch of counsel. Mr Hirsch prepared written submissions and also made oral submissions. Mr Hirsch relevantly submits as follows:
·the decision of the RRT is invalid because the RRT had no jurisdiction, no valid application having been made to it: SZBQE v Minister for Immigration [2005] FMCA 1090;
·in any event, the decision of the RRT is invalid because of a breach of s.424A of the Migration Act;
·the decision of the delegate is also infected by jurisdictional error because the applicant had not made a valid protection visa application.
The applicant relies upon the decision of the Full Federal Court in Minister for Immigration v Li [2000] FCA 1456 as to the requirements for a valid protection visa application. Mr Hirsch submits that the protection visa application was not signed by the applicant or by anyone authorised by him. The residential address details given for the applicant were false and were not authorised by him and much of the detail of the protection visa claims made in the purported visa application were inventions of Jason Shiao and were not authorised by the applicant. In the circumstances, Mr Hirsch submits that the protection visa application was not “filled in” as required by s.98 of the Migration Act and was not “completed” as required by regulation 2.07(3). Mr Hirsch accepts that, pursuant to s.98, it is possible for an application to be made on behalf of an applicant by a migration agent but says that in this case the application purportedly made on behalf of this applicant was not the application that he asked to be made.
Mr Hirsch further submits that it is no answer to the applicant’s claims to say that he might ask the Minister to permit him to make a fresh protection visa application. That is a matter for Ministerial discretion and is not reviewable.
Ms McNaughton prepared written submissions but these were essentially overtaken by the change in direction of the proceedings once the applicant’s allegations against his former migration agent emerged. In relation to the issues upon which this case turns, Ms McNaughton makes the following relevant submissions:
·The applicant’s evidence as to what documents he did or did not sign was equivocal. He initially said he only signed a receipt for money from Mr Shiao but then admitted signing a service agreement;
·On the applicant’s evidence he discussed his claims with Mr Shiao for 20 minutes in a telephone conversation and provided further details in a 10 minute face to face discussion;
·The Court should treat the applicant’s evidence as to his residential address with caution. In paragraph 47 of his affidavit the applicant asserted that the person known as “Aunty Lee” could verify his residential details but she was not produced;
·It is open to the Court to conclude that the protection visa application lodged by the applicant’s migration agent was authorised by him: NAWZ v Minister for Immigration [2004] FCAFC 199;
·While the applicant asserts that he used bribery and subterfuge to escape from China, the facts are that he left legally. The only falsity was his description of his occupation, which was of more relevance to the Australian authorities than the Chinese authorities;
·Even if the Court concludes that the RRT decision is invalid and that no valid protection visa application was made, the Court should refuse relief, given the circumstances of this case: NAWZ at [13];
·The alleged misconduct on the part of the applicant’s migration agent does not entitle the applicant to relief as the applicant had shown a lack of candour and permitted or authorised his migration agent to make at least one false claim on his behalf, namely, relating to his occupation;
·Even if the applicant’s residential address on his protection visa application was incorrect, the applicant had appointed Jason Shiao as his migration agent and the details provided as to his authorised representative were correct.
In reply, Mr Hirsch stressed that, in his submission, the applicant, while he had authorised an application to be made on his behalf for a protection visa, had not authorised this application. He cautioned me to avoid the trap of judging the merits of the applicant’s claims for protection and adopted a proposition from me that untruthfulness is not incompatible with a well-founded fear of persecution. He submits that the applicant should be given a proper opportunity to put his claims to a decision maker.
The legislation
Sections 46, 48A, 48B and 98 of the Migration Act provide as follows:
Section 46:
(1)Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non-citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A); and
(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
(2A) An application for a visa is invalid if:
(a) prescribed circumstances exist; and
(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab) the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and
(b) the applicant has not complied with the requirement.
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
(2AA) An officer must not require, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier other than:
(a) if the person is an applicant for a protection visa–any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person's face and shoulders;
(iii) an audio or a video recording of the person;
(iv) an iris scan;
(v) the person's signature;
(vi) any other personal identifier contained in the person's passport or other travel document;
(vii) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or
(b) if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas–any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person's face and shoulders;
(iii) an iris scan;
(iv) the person's signature;
(v) any other personal identifier contained in the person's passport or other travel document;
(vi) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or
(c) if paragraphs (a) and (b) do not apply–any of the following (including any of the following in digital form):
(i) a photograph or other image of the person's face and shoulders;
(ii) the person's signature;
(iii) any other personal identifier contained in the person's passport or other travel document;
(iv) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a).
Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.
(2AB) In requiring, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (2AC)(b).
(2AC) The regulations:
(a) may prescribe other types of personal identifiers; and
(b) may provide that a particular personal identifier referred to in subsection (2AA), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.
(2B) The applicant is taken not to have complied with a requirement referred to in paragraph (2A)(ab) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.
Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.
(2C) However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the applicant:
(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and
(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
Section 48A:
(1)Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
(1A) For the purposes of this section, a non-citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
(1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
(2) In this section:
"application for a protection visa" includes:
(aa)an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ab)an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia:
(i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ii) who holds a protection visa; and
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992 .
Section 48B:
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2) The power under subsection (1) may only be exercised by the Minister personally.
(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b)sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non-citizen; or
(b) any information that may identify the non-citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned–the name of that other person or any information that may identify that other person.
(5) A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year–1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year–1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
Section 98:
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Regulation 2.07(3) of the Migration Regulations provides:
An applicant must complete an approved form in accordance with any directions on it.
Reasoning
This applicant has given plausible and consistent evidence that he knew nothing of the decision of the delegate to reject his purported protection visa application and he knew nothing of the application to the RRT purportedly made on his behalf. He was unshaken in his evidence that he did not authorise the making of the review application and did not sign it. It was not made on his instructions. I accept the applicant’s evidence in this regard. To that extent, this case is indistinguishable from SZBQE. There was no valid review application to the RRT and the RRT had no jurisdiction to make any decision on it. The applicant should not be refused relief in relation to the clearly invalid RRT decision because it would be wrong to permit the Minister to rely upon it. The applicant was in no way involved in the making of the review application. The applicant should receive a writ of certiorari and declaratory relief in relation to the RRT decision.
The applicant is not entitled to relief in the form of mandamus against the RRT for the same reasons as I gave in SZBQE. The Court cannot, by mandamus, compel a decision maker to do something the decision maker has no power to do. The RRT has no jurisdiction to consider a review application unless a valid application is made. No valid application has been made and it is now too late for one to be made.
In relation to the decision of the delegate, the first issue is one of jurisdiction. Prior to the commencement of the Migration Litigation Reform Act 2005 (Cth)[6] the Court and the Federal Court have jurisdiction to review “primary decisions” made under the Migration Act if the relevant decision is not a privative clause decision: NAJT v Minister for Immigration [2005] FCAFC 134 at [110]. If the protection visa application purportedly made on behalf of the applicant was not a valid application the delegate would have had no jurisdiction to make a decision on it. In Minister for Immigration v Li [2000] FCA 1692 the Full Federal Court declined to grant relief specifically in relation to an invalid protection visa application on the basis that the application before the Court did not call for such relief. However, at [7] the Court considered that it did have the power to grant such relief if it had been sought. The relief that the Full Court declined to grant in Li was explicitly sought in this Court in the second amended application. I find that I have jurisdiction to grant that relief.
[6] which does not apply to these proceedings
The substantial questions to consider are first, whether the protection visa application made on behalf of the applicant was a valid one and, if it was not, whether the Court should refrain from granting relief in relation to the delegate’s decision.
In NAWZ the Full Federal Court found valid a false protection visa application that had been made on behalf of the applicant by a “confederate” with the intention of deceiving the Minister. At paragraph 17 their Honours said:
We do not consider that the requirement in Reg 2.07 that the approved form must be completed ‘in accordance with any directions on it’ necessitates that any departure from those directions spells invalidity for an application. It is unlikely to have been the purpose of the legislation: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391; to require the automatic invalidity of a visa application that an applicant has caused another to complete: cf s 98; but which is unsigned, for example, because of the paralysis of the applicant or, for that matter, of the oversight of the applicant or of his or her agent: cf Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 at [32].
This view is, in my view, reinforced by s.98 of the Migration Act which envisages that a protection visa application (like any other application) can be filled in on behalf of an applicant by another person. I see no material distinction between “filling in” for the purposes of s.98 and “completing” an application for the purposes of regulation 2.07.
The difference between NAWZ and this matter is that in NAWZ the applicant and his “confederate” had a common purpose of deceiving the Minister with a false application. The facts in this case are somewhat different. I find, on the basis of the evidence before me, the following:
a)the applicant came to Australia with the intention of obtaining a visa that would give him the right to work here and would allow him to remain for an extended period;
b)he expected to have to pay for it, just as he had paid for documents which enabled him to leave China;
c)the applicant consulted a migration agent (Jason Shiao) and paid him $6,000 with the intention that Mr Shiao would obtain the desired visa;
d)the applicant instructed Mr Shiao to make application on his behalf for a protection visa;
e)the applicant provided Mr Shiao with information to enable that to be done;
f)the applicant did not sign the protection visa application and did not specifically authorise Mr Shiao to sign it on his behalf, but neither did he withhold that authorisation from Mr Shiao: Mr Shiao had a general authority from the applicant to make a protection visa application on behalf of the applicant;
g)the applicant was informed by Mr Shiao and understood that his instructions had been carried out, namely that a protection visa application had been made on his behalf and was being considered by DIMIA;
h)the applicant made no enquiry as to the content of the protection visa application but expected to be informed of its outcome;
i)he was not so informed.
It is not open to me to conclude, on the basis of the above factual findings, that the applicant and Mr Shiao had a common purpose of misleading the Minister with a false protection visa application. It is open to me to conclude that the applicant wanted a long term visa that carried with it work rights and was not too particular how he got it. A protection visa application proved to be the preferred mechanism but the applicant showed little concern as to its contents. His interest was in the outcome. I find that the applicant was indifferent as to the content of the protection visa application. His instructions to Mr Shiao were general. He expected a protection visa application to be lodged on his behalf and he expected Mr Shiao to do everything necessary for that to occur. That is what he paid for. The applicant asserted, in his statement to DIMIA[7], that the signatures purporting to be his on the protection visa application were “forgeries” and that he did not authorise Mr Shiao to sign his name on the application. He did not repeat that assertion in his affidavit. The assertion is inconsistent with the general instructions the applicant gave to Mr Shiao. The applicant wanted Mr Shiao to lodge a protection visa application on his behalf. If Mr Shiao could not sign it on behalf of the applicant it could not have been lodged. I find that the authority given by the applicant to Mr Shiao extended to signing the application on his behalf.
[7] exhibit R1
The applicant asserts that the protection visa application is invalid, not only because he did not sign it, but because the content of it was in part false. That may be so (I do not know) but, in my view, an applicant is just as responsible for a false application when he is indifferent as to its contents as where he has been found to be knowingly concerned with the making of a false application[8]. In addition, to the extent that the applicant relies upon the allegedly false address details put in the protection visa application, I accept the Minister’s submission that the address details given for the migration agent were accurate.
[8] NAWZ
I find that the protection visa application made on behalf of the applicant was valid. It follows that the delegate had jurisdiction to make a decision on it and the decision of the delegate is not vitiated by jurisdictional error.
It is strictly unnecessary for me to consider the exercise of judicial discretion in the light of the above finding. It is not open to me to make a finding of bad faith as appears to have been done in NAWZ at [12]. Nevertheless, if I had been called upon to consider withholding relief in the exercise of discretion, I would have been influenced by the attitude taken by the applicant to the protection visa application, which was at best careless and at worst, recklessly indifferent. I would have been inclined to refuse relief in the exercise of discretion.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 November 2005
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