SZHTW v Minister for Immigration - [2006] FMCA 356

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTW v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 356

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant asserting that his protection visa application and his review application to the RRT were invalid – protection visa application made by the applicant using a false name – application nevertheless validly made as application authorised by the applicant and signed by him – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.476
Migration Litigation Reform Act 2005 (Cth)

NAWZ v Minister for Immigration [2004] FCAFC 199

Applicant:

SZHTW

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3606 of 2005

Judgment of:

Driver FM

Hearing date:

13 March 2006

Delivered at:

Sydney

Delivered on:

13 March 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms S A Mason

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3606 of 2005

SZHTW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 10 November 2005. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China. He had made claims of political persecution in that country.
The proceedings in this Court commenced with an application for an order to show cause why relief should not be granted, filed on 8 December 2005. The applicant asserted that he was notified of the decision on 23 November 2005. Under transitional arrangements in the Migration Litigation Reform Act 2005 (Cth) the applicant was deemed to have been notified of a decision on 1 December 2005. I am satisfied that the application was made within time.
When the matter first came before me on 23 January 2006 I ordered a show cause hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on 27 February 2006. At the show cause hearing conducted on 27 February 2006 it was clear that the application could not succeed on the grounds advanced. Those grounds simply attacked the merits of the RRT decision. However, it appeared to me that an arguable ground existed in relation to the question of whether the applicant had ever made a valid application to the RRT. Moreover, it appeared to me that there might be a question of whether the applicant had ever made a valid application for a protection visa. These issues arose from the procedural history detailed by the RRT in its decision on pages 100 to 103 of the court book.
Briefly, there was an issue concerning the notification of the delegate's decision. About nine years elapsed between the making of the delegate's decision and the review decision of the RRT. The name of the person who applied for a protection visa and the name of the person who applied for review of the delegate’s decision were different. On 27 February 2006 I ordered that, provided the applicant filed and served on the Minister an amended application no later than 10 March 2006 asserting that neither his protection visa application nor his review application to the RRT were valid, the Minister was ordered to show cause why relief should not be granted pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules. I also gave the applicant the opportunity to file evidence in support of the anticipated amended application by the same date.
When the matter was called this afternoon the applicant did not appear. The matter was called three times over about 15 minutes and I was in the course of giving judgment when the applicant arrived. I reverted to a hearing in the presence of the applicant. I pointed out to him that no amended application had been filed in accordance with my show cause order. The applicant assured me that an amended application had been prepared and filed. However, there was no record of any amended application being received by the court registry. A female present in court with the applicant told me that the amended application could be produced by facsimile if a short adjournment was given. I adjourned for 30 minutes and two documents were faxed to the Court. The first was a purported form of application to the Federal Court of Australia, the second was a purported form of application to this Court. The second document appeared to be relevant and appeared to have been prepared in an attempt to comply with order 1 made by me on 27 February 2006.
I took evidence from the female person who had earlier spoken to me in court. This person is Yuan Bing Han who told me that she was a friend of the applicant who had been assisting him. It turns out that she is the wife of a migration agent who runs a business known as Aowei International Education Centre. She told me that she and her husband had been assisting the applicant with his application to the Court in view of his lack of funds and lack of knowledge of English. She told me that the applicant had not paid for this assistance although he had made a gift of $200. She told me that the address for service and telephone number on the application were the applicant's. I gave leave for the form of application to be filed in court as an amended application and I accepted that the applicant had attempted to comply with my order by the due date. Noting that no evidence had been filed in support of the amended application and at the suggestion of Ms Mason, for the Minister, I invited the applicant to give oral evidence.
In his evidence the applicant said that in 1996 he had arranged for a person from Shanghai who he apparently met in Australia to lodge a protection visa application on his behalf. The applicant could not recall the name of this person. He could not recall what had been put in the protection visa application. Under cross-examination he conceded he had not asked what the protection visa application said. The applicant confirmed, however, that the signatures in that application reproduced on pages 8, 20 and 22 of the court book were his, using a false name. The applicant also confirmed that the signatures on the review application appearing on pages 42 and 58 of the court book were his, using his real name. The applicant also stated under cross-examination that he has had the use of the post office box given as his address for service for about ten years. He gave that address to the Minister's Department in the protection visa application.
I accepted as an exhibit (exhibit R1) a letter in English written on behalf of the applicant using his real name by a friend in the Villawood Detention Centre who spoke and wrote English. In that letter the applicant, through the auspices of his friend, sought to explain the circumstances of the protection visa application and asked the Minister to substitute a more favourable decision for that of the delegate.
Having regard to these facts I have come to the view that the amended application must fail. The amended application asserts that the protection visa application and the review application to the RRT were both invalid. The applicant may well be estopped from the latter argument given that the RRT decision record makes clear that the applicant through his advisers went to considerable lengths to ensure that his review application was a valid one. Even if there is no issue estoppel the RRT decision would be valid unless there was nothing for it to review.
There would only be nothing for the RRT to review if there was no valid decision by the delegate. Since 1 December 2005 the Court has lacked jurisdiction to review primary decisions[1]. The decision purportedly made by the delegate was a primary decision in that it was reviewable by the RRT. I find that I have no jurisdiction to review the decision of the delegate.
[1] ss.476(2)(a) and 476(4) of the Migration Act
Nevertheless, the decision of the delegate is relevant insofar as it determines the jurisdiction of the RRT. To that extent it appears to me that the protection visa application and the decision of the delegate on it were lawfully made. There is no real doubt that the protection visa application was made on the applicant's instructions and upon his behalf. The applicant confirmed that he signed it although he paid no attention to its contents. The applicant used a false name in making the protection visa application but that fact alone does not, in my view, render the application invalid. The applicant authorised the making of his protection visa application, and he signed it. It was his application regardless of what name he chose to use on it. It was a complete application regardless of whether the claims and other details in it were true or false. The RRT was correct in finding that it had jurisdiction to deal with the review application, upon the basis that a valid review application had been made within time(having regard to the issue of the second notification of the delegate’s decision).
Even if I were wrong in that finding I would nevertheless refuse relief. It is clear from the applicant's own evidence that he engaged in a scheme with a person unknown in order to mislead and deceive the Minister. Having engaged in that misconduct the applicant should not enjoy any fruits of it. I rely on the decision of the Full Federal Court in NAWZ v Minister for Immigration [2004] FCAFC 199.
I will dismiss the application.
Costs should follow the event in this case. Under the Federal Magistrates Court Rules costs of $5,000 would be payable as scale costs following this hearing. The Minister has properly sought a lesser amount on the basis of a party and party assessment. The Minister seeks $3,800. The applicant was concerned that me might require time to pay but did not otherwise wish to make submissions.
I note that the applicant has been given fairly extensive assistance by a migration agent and the wife of the agent. The evidence is not so clear that those persons have had control of the application that a costs orders against either of them is necessarily warranted. If it appears to either the applicant or the Minister that such a costs order is warranted an application can be made pursuant to the Court rules within 28 days.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,800.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 March 2006