SZHLY v Minister for Immigration

[2006] FMCA 771

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 771

MIGRATION – RRT decision – Chinese applicant – visa application lodged by agent with false claims and false name – authorised by applicant – applications were valid – applicant did not attend hearing – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.98, 426A(1), 441G, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199
SZEYH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 93
SZGJO v Minister For Immigration & Anor [2005] FMCA 1349
SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZHLY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3132 of 2005

Judgment of: Smith FM

Hearing date: 14 March 2006

Date of Last Submission: 3 May 2006

Delivered at: Sydney

Delivered on: 2 June 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms T Wong

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3132 of 2005

SZHLY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 27 October 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 19 March 2004 and handed down on 13 April 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.

2. The decisions of the delegate and Tribunal addressed a protection visa application lodged on 21 July 2003 in the name W…, which the applicant now claims is an alias shown in a Chinese passport upon which he was permitted to enter Australia.  As I shall recount below, he subsequently denied that he authorised either the visa application or the review application brought in that name, and he has sought to present different refugee claims in the name D…, which he claims is his true name.  In the name D, he applied on 27 May 2005 to the Tribunal for a further hearing into his refugee claims, and it made a decision dated

   
   

   12 July 2005 that it did not have jurisdiction.  It considered that its previous decision had discharged its review function, and that “there has been no subsequent protection visa application or primary decision”.  The applicant did not identify this decision as the subject of his present application to the Court, and I did not invite him to seek to extend the present proceeding to address it, since the decision appeared correct for reasons which will appear below. 

3. Nor did I invite the applicant to seek any alternative relief in relation to his original visa and review applications.  As I shall explain below, it appeared to me that the applicant’s original visa application was a “valid application”, that it was validly refused by a delegate, that a valid application for review was lodged, and that the first decision of the Tribunal which affirmed that decision was not affected by any jurisdictional error.  On the material submitted by the applicant, I was unable to identify any other outstanding visa or review application in relation to which the applicant might be entitled to a remedy from this Court. 

4. The Court’s jurisdiction under s.483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending act and the Acts Interpretation Act 1901 (Cth). The Court’s jurisdiction is subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. The court does not have power to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.

5. The applicant arrived in Australia on 22 June 2003 on a business visa contained in a passport in the name W.  On 21 July 2003 an application in that name, attaching a copy of the passport, was lodged with the Department by an agent, Jack Meng.  The application purported to be signed at several places in Chinese characters by the applicant, including an authorisation of Mr Meng “to act on my behalf in relation to my application”.  The application showed a residential address at Marrickville and a “current postal address in Australia” which was the same as Mr Meng’s address.

6. A signed “personal statement” attached to the application outlined the refugee claims made by W.  He stated that he was a citizen of the People’s Republic of China, and that he had to flee persecution from the Chinese government as a result of his adherence to Yi Guan Do, a proscribed religious sect.  He said:

   My parents were once Yi Guan Dao members but were forced to announce disconnection with Yi Guan Dao in 1950’s.  They started to practice again in 1983.  Under their advices, I also jointed Yi Guan Dao.  My parents then contacted of Yi Guan Dao fellow and held ritual together.  We kept practicing for many years until 1999. 

   Starting from 1999 the government has been persecuting Falun Gong and then all the unauthorized religions.  When they searched for underground Falun Gong practitioners, they found the existence of out Yi Guan Dao organization.  As Yi Guan Dao has already been announced as unlawful, the persecution against us was even more severe that that of other religions such as Falun Gong.  As far as I know there have been 16 adherents taken away by police, among which 10 where sentenced of 5 years imprisonment.  After knowing the news other adherents all ran away.  My parents have some Yi Guan Dao friends in Hong Kong.  With their help I and other four adherents got a passport and then an Australia visa.

7. A delegate refused the application on 27 July 2003. The delegate found that the ability of the applicant to obtain a passport and to depart from the PRC legally indicated he was of no interest to the authorities.  The delegate also considered that there was not enough detail about the applicant’s activities.

8. On 28 August 2003, Mr Meng lodged an application for review by the Tribunal.  This also purported to be signed by W, and appointed Mr Meng “to act on my behalf in relation to this case”.  No further information or supporting evidence was presented to the Tribunal, and the application said merely “please see my file at DIMIA”. The application gave the previous residential and mailing addresses, and also nominated Mr Meng as the applicant’s authorised recipient of correspondence for the purposes of s.441G of the Migration Act.

9. On 16 January 2004, the Tribunal wrote to the applicant and his agent at all the stated addresses, to advise that:

   The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

10. The letter invited the applicant to attend a hearing on 18 March 2004, and informed him that if he did not attend the hearing the Tribunal could make a decision without further notice. 

11. The Tribunal did not receive a response to the hearing invitation.  The copy of the letter sent to the Marrickville address was returned “unclaimed”.  According to the Tribunal’s Case Notes, on 10 March 2004 an officer of the Tribunal “rang the adv and he said he will contact the appl and he will fax me the RTHI form asap”.  On the same day: “rec’d fax from adviser informing that they are unable to contact applicant & do not know if he wishes to attend hearing.”  An unsuccessful attempt was also made to contact the applicant by telephone on a number provided in the application.

12. There was no appearance at the appointed hearing, and the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it. In my opinion, it was empowered by s.426A(1) of the Migration Act to follow that procedure, and I can find no basis for finding that its discretion miscarried. Upon clear authority, it is irrelevant whether, in fact, the applicant failed to receive actual notice of the hearing invitation – even if the applicant has a good explanation for this (see VNAA v Minister for Immigration (2004) 136 FCR 407 at [14-15]).

13. The Tribunal’s decision dated 19 March 2004 was handed down on

    
    

    13 April 2004.  In its statement of reasons the Tribunal summarised the claims set out in the visa application, and pointed out that it was for an applicant to satisfy the Tribunal that all of the statutory elements were made out.  Under the heading ‘Findings and Reasons’, the Tribunal said:

    The applicant provided no detail whatsoever as to whether he himself is known to the Chinese authorities because of his claimed membership of this group or whether he has been subject to adverse attention from the Chinese authorities by reason of his religion adherence.

    …  Without considerable more information from the Applicant the Tribunal cannot be satisfied that the Applicant faces any harm from the Chinese authorities on his return to China by reason of his religious beliefs.

    Accordingly the Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention.

14. I can discern no jurisdictional error in the Tribunal reasoning in that manner.

15. On 11 June 2004 an application was made by a different migrant agent, Mr Wong, seeking an exercise by the Minister of his powers under s.417 of the Migration Act. The letter maintained the applicant’s identity as W, and that his refugee claims arose as a result of persecution as “an adherent of Yi Guan Dao”.  This was refused by letter to the agent dated 9 December 2004.

16. According to documents from the files of the Department and Tribunal, the applicant’s next contact with the Department occurred after he was taken into immigration detention.  In evidence before me, he said this occurred on 11 January 2005.  A handwritten letter sent by the applicant on 24 February 2005 from Villawood detention centre, requested “a copy RRT decision from you.  I’m going to appeal the Federal Court of Australia”.  The letter was signed in the name of W in Roman and Chinese writing, and the applicant acknowledged in evidence before me that this was his writing. 

17. It seems that shortly thereafter, the applicant sought to lodge a further protection visa application in the name of W, but was told that “you previously sought protection in Australia as a refugee on 21/07/2003.  This previous application was finally determined on 19/04/2004.”

18. The applicant then sought to make a second application to the Tribunal.  For the first time, he claimed that his true name was D, and he presented a Chinese passport in that name. He also presented statements and corroborative documents, claiming that in China he had suffered persecution, including detention and torture, as a “devoted Catholic” member of an unregistered church.  As I have indicated above, this application was ultimately answered on 12 July 2005 by a decision that “the Tribunal does not have jurisdiction to review the decision refusing to grant the applicant a protection visa”.

19. His present application to this court seeks judicial review of the Tribunal’s first decision, handed down on 13 April 2004.  Its grounds are:

    1)     My case has never been heard because the facts were falsified and submitted under a false name without my knowledge or consent.

    2)     My migration agent never informed me that the delegate had rejected my application for a protection visa, or that I was invited to the RRT Hearing. (My agent was barred from being registered as a migration agent on 12^th July 2004 based on complaints dating back to 2002 – See attachment)

    3)     I was tortured in detention in China for my Christian commitment.  I still bear a scar from being pierced by a burning hot steel rod.  I was detained for being an underground catholic.

    4)     My faith requires that I should uphold my precious beliefs and this means I may not recant as required by the Chinese authorities and I will have to live in hiding under the threat of persecution and death if I am forcibly returned to China

20. In support of these contentions, the applicant presented a written statement containing a history which he maintained when questioned under oath.  It said:

    My name is D..  I … arrived in Australia on 22 June 2003 …

    The next morning my friend took me to the city and found an immigration agent (level 5, 368 Sussex St. Name: Meng Da Jun).  I told Meng Da Jun my situation in China.  I also showed him 2 passports, letter from my parish priest and letter from the president of my parish council.  Meng told me not to use the passport with the name D… and instead use the passport with the name W… as this is the passport that was used for coming to this country.

    I told Meng D Jun that if I did not use the fake passport I would not have been able to come out.  I also told him that I was a Catholic and for that my whole family and myself have suffered for it.  That was why I used the fake passport to arrive here and ask for protection.  Meng told me that he is expertly conversant with immigration and refugees application.  Regrettably, the conversation with him convinced me that he could be trusted.  After I decided he also accepted my request to let him handle my case.  He also allowed me to relate to him how the Chinese government and police have been persecuting the Chinese Catholic Church.  He then took out an empty form and a few sheets of white paper and asked me to sign at 2 designated places on the form.  He then proceeded to tell me everything is all right and come back to pick up my visa in few weeks.  I also paid A$1,230 with a receipt issued.

    Few weeks later I went to collect my Passport.  I asked him how he applied for my case.  He only told me not to get involve with the process and leave everything to him.  After that I took away my passport and other material.  I showed my material to the priest, Fr.Ma at St Dominic Church.  Fr.Ma told me that Meng did not applied with the reason of my persecution as a member of the underground church.  Instead he stated the reason of my persecution as a practitioner of Falungong and YuGanDao.  Fr.Ma was very anxious and angry and immediately made appointment to meet with RRT.

    One afternoon at 2pm in (illegible month), Fr.Ma went with me to RRT and told them details of my arrival in Australia.  The judge then made telephone contact with Meng to verify the truth.  Meng told me to not talk to the judge and to come to him to settle thing.  The judge told me to sue Meng.  I told the judge that I have just arrived in Australia.  Further more, I do not know the language and the law.  How am I going to sue Meng?  I left the matter without talking any further action.

21. When questioned, the applicant maintained that he and Fr.Ma had visited the RRT and revealed his true name and refugee claims based on being an ‘underground’ Catholic, soon after he received his bridging visa and other documents from Mr Meng which revealed that his protection visa applicant had been presented in the name of W.  He said that this happened four weeks after instructing Mr Meng to make the visa application, and while his appeal was still outstanding in the Tribunal.  This visit had no corroboration in any evidence, and was inconsistent with the applicant’s other evidence that he had maintained his W identity until after being taken into detention in 2005.  However, when presented with this inconsistency, the applicant repeatedly claimed under oath that he had informed the RRT of the falsity of the claims made by his agent. 

22. It was only after the hearing and after receiving the transcript, that the applicant admitted that in fact he had not done this, and said that his visit with Fr.Ma was to a solicitor at the Legal Aid Commission of NSW.  He presented a letter from an Assistant Pastor which tends to confirm that advice was taken from that source, while leaving its chronology uncertain.  The Pastor said in an unsworn statement dated 24 April 2006:

    Quite some time ago, he approached me to ask for my help with his application for a protection visa on the grounds of religious persecution in China.  When I saw that he had begun proceedings with an immigration agent, I persuaded him to go to Legal Aid, NSW and arranged for an interview with a solicitor there, Mr James Dagnall, who then rang the immigration agent, identified himself as a solicitor with Legal Aid and asked for D’s file to be sent to him.  He was interviewed at Legal Aid, but as far as I know he did not get to the Refugee Review Tribunal.

23. I am unable to make a positive finding accepting the truth of the elements in the applicant’s narration which seek to blame Mr Meng and exonerate the applicant from the inclusion of false statements in his protection visa application.  The applicant maintained his narration consistently under questioning, but the manner of his giving evidence does not persuade me as to its truth – particularly, in view of his insistence that he had visited the RRT despite apparent inconsistency.  Moreover, on his own account, he is a person who has maintained false claims and a false identity to the Department of Immigration and the Tribunal for a long period after being aware that they had been presented by his agent.  He sought to correct these claims only after discovering that they had failed to achieve the visa he sought, and after being taken into detention.

24. I find that it is probable that the applicant was aware and accepted, when authorising Mr Meng to present a protection visa application on his behalf, that Mr Meng would, or might, present that application in the name of W, and that he gave Mr Meng authority to do this and to include in the application whatever claims Mr Meng chose to include regardless of their truth.  I also find that the applicant authorised Mr Meng to present such further applications to the Tribunal as might appear desirable.  The likelihood of this emerges from the applicant’s own evidence of giving Mr Meng blank pieces of paper signed in the name of W.  He agreed that he was aware, even before he received back his W passport with its bridging visa, that Mr Meng might be making applications using the false name.  He also came close to admitting that he relied upon Mr Meng to decide what claims would be made: “That’s because he’s my migration adviser.  I should write out my claims for him to make the application.  He can edit it for me.  But he made the claim according to what he want to say, not according to what I wanted to say.”

25. Under questioning, the applicant maintained that none of the signatures of the name W in the documents presented to the Department and Tribunal had been written by him, except that on the letter sent to the Department from Villawood (see [16] above).  Without handwriting evidence, I am unable to make findings as to the truth of this.  I am not persuaded that they were not signed by the applicant. 

26. Even if the visa application and review application were not, in fact, signed by the applicant, I consider that they were “valid” applications for the purposes of the Migration Act. I consider that the authority given by the applicant to Mr Meng was broad and unqualified, and that the visa application is to be “taken” to be his by s.98 of the Migration Act (c.f. NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [16]; and SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1349, upheld by Bennett J in SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393).

1. Unlike in SZGJO, I am not persuaded that the applicant did not authorise Mr Meng to present an application to the Tribunal seeking review of the delegate’s decision. On his account he was, at least, aware of that application while it was pending, and accepted its continuance. Even if Mr Meng failed to advise him of the invitation to the hearing or wrongly advised him not to attend, this could not vitiate the Tribunal’s decision to proceed under s.426A(1) by reason of his non-attendance (see SZEYH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 93).

2. For the above reasons, I do not consider that the applicant has raised any ground of jurisdictional error affecting the decision of the Tribunal to affirm the refusal of a protection visa. Its decision is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  2 June 2006