SZHVJ v MIAC

[2009] FMCA 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVJ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 320

MIGRATION – Visa – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision – where applicant claimed to be a citizen of Taiwan – where applicant claimed that he was really a citizen of China.

PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment – where applicant had not attended Court on hearing date – where applicant attended Court on first court date.

Migration Act 1958 (Cth), ss. 48A, 91X, 412, 414, 424, 424C, 425, 476, 477
Federal Magistrates Court Rules 2001 rr.13.03A, 15.27, 16.05

SZHVJ v Minister for Immigration [2006] FMCA 1805 cited
SZBRB v Minister for Immigration [2004] FMCA 285 followed
SZCPY & Anor v Minister for Immigration [2004] FMCA 646 followed
SZIPN v Minister for Immigration [2006] FMCA 1751 followed
SZITC v Minister for Immigration [2007] FMCA 424 followed
SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 followed.
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; 81 ALJR 1401; [2007] HCA 35
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
SZMGX v Minister for Immigration & Anor [2008] FMCA 1529

Applicant: SZHVJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3684 of 2005

Judgment of: Scarlett FM

Hearing date: 8 April 2009

Date of Last Submission: 8 April 2009

Delivered at: Sydney

Delivered on: 16 April 2009

REPRESENTATION

The Applicant: Appeared in person

Solicitor for the Respondents: Ms Hooper

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application filed on 3 April 2009 is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $1,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3684 of 2005

SZHVJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The applicant, who is in immigration detention at Villawood, NSW, has applied to the Court for review of a decision of the Refugee Review Tribunal handed down on 15^th November 2005. Leaving aside the fact that his application appears to be several years out of time, as an application for a remedy to be granted under s.476 of the Migration Act must be made within 28 days of the actual notification of the decision (s.477(1)), the applicant has already made that application, which was dismissed for non-attendance.

2. What the applicant really wants to do is apply to set aside the judgment entered against him on 4^th December 2006 (SZHVJ v Minister for Immigration & Anor[1] under the provisions of rule 16.05. His affidavit in support does not set out any information directly relevant to this application, so he gave oral evidence with the assistance of an interpreter in the Mandarin language.

   [1] [2006] FMCA 1805

Background

1. The applicant filed an application for review of the Tribunal decision and an affidavit in support on 15^th December 2005. He attended before a Registrar on 31^st January 2006, where directions were made by consent and the application was originally listed for hearing before another Federal Magistrate on 7^th November 2007. However, for administrative reasons, the application was re-listed for hearing before me on 4^th December 2006 and the applicant was advised by a letter from the Court to his address for service in the Sydney suburb of Baulkham Hills dated 17 October 2006.

2. The applicant did not attend the hearing on 4^th December 2006. The application was dismissed under the provisions of what was then rule 13.03A(c) due to the applicant’s failure to attend the hearing.

3. It was not until 3^rd April 2009 that the applicant, by this time an inmate at the Immigration Detention Centre at Villawood, filed his application and affidavit in support.

Application to the Federal Magistrates Court

1. In his application, the applicant seeks these orders:

   (1)The application be allowed.

   (2)The decision of the RRT be quashed.

   (3)The matter be reconsidered by RRT

2. His application has been taken to be an application to set aside the decision of 4^th December 2006.

3. In his affidavit, the applicant deposes:

   (1)I am the applicant of this application and all the information I provide in this affidavit is true.

   (2)I suffered persecution in the hand of Chinese government due to my family’s involvement in a local Catholic family church in Fujian Province, China. Fearing for personal safety and freedom I fled to Taiwan and from there I came to Australia with another person’s (T[2]) passport on 11 January 2005.

   (3)A fiend[3] introduced me to a migration agent who promised to represent me in applying for a protection visa. I met this agent in his office in city, paid him and signed some blank forms he gave me.

   (4)I told the agent my experience in china and was advised that I had to apply for protection with the name in the Taiwanese passport because it was the law. I was confused as I have no legal knowledge or whatsoever.

   (5)I asked the agent then how he was going to put my persecution experience in the application if he uses the Taiwanese name. I was told not to worry because he will ‘figure a way’ to lodge the application.

   (6)I have never been informed about the information in my protection application. The next time I heard from the agent was when he told me I have to attend a ‘court hearing’, for which I paid him the second time.

   (7)I was worried as I had no idea about the progress of my application. I asked the agent what was going to happen at the court hearing. I was told that everything has been arranged and all I had to do was answer ‘YES’ to all the questions.

   (8)I have not heard anything from the agent since the hearing. After lengthy waiting I contacted the agent enquiring about my application and was told that the case was ‘closed’. The agent then told me that there was nothing he could do for me. I did not know where I could appeal my case and because of my fear of being returned to China and face danger I stayed unlawfully in Australia.

   (9)Now I realize that because of the agent’s fraudulent behaviour my true refugee claims had never been read by the immigration Department and the Review Tribunal. I was not informed about interview with the department and the invitation to the RRT hearing. I humbly request this Court to take into account the information provided and allow this appeal.

   [2] Name deleted to comply with s.91X of the Migration Act

   [3] Sic

4. The applicant does not speak or read English. The affidavit does not comply with rule 15.27 because it does not contain any certification in or below the jurat that any person read or gave to the applicant in writing a translation of the affidavit in Mandarin.

5. The applicant gave oral evidence at the hearing. He said that he used two different signatures on his application and affidavit because one of them was the Taiwanese name that he used for his original application. He said that the ‘migration agent’ who helped him had told him about the court proceedings:

   It doesn’t matter what the Court will say, just say ‘Yes’.

6. He said that the name of this man was Jing Shu Ou[4]. He said he gave his telephone number to this person, who said that if anything happened he would let the applicant know.

   [4] This is what the name sounded like

7. The applicant then proceeded to tell the Court what he said his real claim was, that he left China after the police raided a church that he was attending. He said he fled to Taiwan and then travelled to Australia using a Taiwanese identity (T) and a Taiwanese passport. He said that he was helped by friends in Australia.

8. In cross examination by Ms Hooper, solicitor, who appeared for the Minister, he said that he did not know the Baulkham hills address that had been used in his earlier documents. That was the address that the agent said he should use.

9. The applicant reiterated that the agent had told him that whatever was said at the Court hearing, he was just to say “Yes”. He agreed that there was a Mandarin interpreter at the Court. He denied any knowledge of any further Court hearing, saying:

   I came once only.

10. The applicant agreed that he had signed the Minute of Consent orders at the first court date in the Taiwanese name but said he did not know when he signed it.

11. The applicant said he did not know when he found out that his case had been dismissed by the Court. He did nothing until he was taken into immigration detention, saying:

    Until I was detained I did not know what was put in my application.

12. He said that he gave his true identity when he was detained on 19^th March. He went on to say:

    Every time he asked me to sign, I signed. I came here and knew nothing about nothing. I know now I was applying for a protection visa. I only found out after I was detained.     

13. The applicant said he did not know whether the “agent” was a registered migration agent or not and he did not keep any receipts for the money he paid him. As for the documents submitted, he said:

    What was put and what was written by him I have no idea. I kept telling him ‘I’m Chinese. This passport is from Taiwan.’

14. In answer to a question from the bench about what sort of visa he thought he was applying for, the applicant said:

    He said he would arrange a work permit for me. I knew I could get a working visa.

15. Ms Hooper submitted on behalf of the Minister that the applicant had not established any case for setting aside the judgment. He had attended the first court date, where an interpreter had assisted him. He had signed short minutes of order about directions. However, he was not particularly concerned about what was going on.

16. She further submitted that the applicant had given false information to the Department of Immigration and Multicultural and Indigenous Affairs, as it then was, and to the Refugee Review Tribunal and to the Court. The first time that he had given his true name and refugee claims was when he was taken into detention. In any event, he had no arguable case, as no jurisdictional error appeared in the decision of the Refugee Review Tribunal.

17. The Tribunal had sought information from him under s.424 and given a sufficient period of notice. When the information was not forthcoming the Tribunal had correctly found that the applicant was not entitled to appear before it (ss.424C, 425(2)(c), 425(3)) and had properly exercised its discretion not to invite the applicant to attend a hearing.

18. Further, the applicant’s delay of more than two years in seeking to set aside the judgment should count against granting his application.

The Law to be Applied

1. When the Court considers an application for reinstatement of an application it must look not only at the circumstances which led to the party missing the hearing but also at the merits of the substantive application. Where there are no prospects of success on a substantive application an application for reinstatement should be refused because it would be futile (SZBRB v Minister for Immigration[5]; SZCPY v Minister for Immigration[6]; see also SZIPN v Minister for Immigration & Anor[7] and SZITC v Minister for Immigration & Anor[8] at [3]).

   [5] [2004] FMCA 285

   [6] [2004] FMCA 646

   [7] [2006] FMCA 1751

   [8] [2007] FMCA 424

Conclusions

1. On the evidence, I am satisfied that the applicant had no intention of attending the final hearing of his application for review of the Tribunal decision. He cannot say that he did not know about it. He attended the first court date where a Mandarin interpreter was available to translate for him. It is not believable that he was not aware that there was to be a final hearing.

2. On the applicant’s own evidence to the Court, he commenced proceedings claiming to be someone else and a citizen of Taiwan. He was not aware of what was in the Court documents; he just signed them, including an amended application. He said that whatever happened in Court, he was just to say “Yes”. He did not concern himself with what was going on in Court because he was not concerned about attending any hearing.

3. This conduct by the applicant is sufficient of itself to deny any application to set aside the decision. However, even if the Court were to be persuaded that the decision should be set aside, reinstatement would be futile because the applicant’s case, on the evidence before the court, lacks any merit and would have no prospect of success.

4. The applicant claims a fraud by a purported migration agent. If there was a fraud, it was a fraud in which the applicant was a knowing participant. He arrived in Australia on 11^th January 2005 on a Taiwanese passport, claiming to be a citizen of Taiwan who was seeking protection from the government of that country. It was not until March 2009, after he was taken into detention, that the applicant claimed that he was not a citizen of Taiwan at all, but a citizen of China with a refugee claim against that country.

5. The fact situation is similar to that in SZLHP v Minister for Immigration and Citizenship[9] where the appellant in that case was well aware that he was applying for a protection visa in a false name and on a false basis. In SZLHP, Branson J rejected the submission that the Federal Magistrate at first instance had erred by creating a qualification to the approach adopted by the High Court in SZFDE v Minister for Immigration and Citizenship[10], that where an applicant for review knew of the fraud or participated in it, there was no jurisdictional error. Counsel for the appellant had argued that the High court had eschewed any distinction based on the identity of the person perpetrating the fraud or the person on whom it is practiced.

   [9] [2008] FCAFC 152

   [10] (2007) 237 ALR 64; 81 ALJR 1401; [2007] HCA 35

6. Branson J (with whom Graham J agreed) held at [12]:

   The appellant’s submission is too broad to be accepted. It would, as the appellant both recognised and intended, allow a person successfully to contend that, by reason only of the person’s own fraudulent conduct, the jurisdiction of the Tribunal remained constructively unexercised. Such an approach is inconsistent with the long established principle that courts do not allow a person to maintain an advantage obtained by the person’s own fraud (Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713). It would also significantly undermine the legislative restraint on a person making more than one  application for a protection visa (see s 48A of the Migration Act 1958 (Cth)).

7. See also the decision of Lindgren J at [34].

8. In my view, even if the applicant were to able to prove fraud by the purported migration agent, a Court hearing his application for judicial review would be likely to find that the applicant was “a knowing, independent and voluntary co-perpetrator of the fraud on the Tribunal”[11] and relief would be refused.

   [11] SZLHP per Branson J at [34]

9. I am also of the view that it is highly doubtful that the applicant knew at the time that he was applying for a protection visa, even though his affidavit refers to that fact. In his evidence to the Court, when he was cross-examined, the applicant said that he did not know until he was detained that the documents he had signed related to an application for refugee status. He signed the documents not knowing what they were. As he said about the purported agent:

   He said he would arrange a work permit for me. I knew I could get a working visa.

10. I am not satisfied that the applicant has shown, or would be able to show, that he made a valid application to the Refugee Review Tribunal. Accordingly, the Tribunal would have had no jurisdiction to conduct a review (ss.412(2) and 414(1) of the Migration Act; see also SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs[12]; SZMGX v Minister for Immigration & Anor[13]).

    [12] [2006] FCA 393

    [13] [2008] FMCA 1529

11. The other issue, of course, is delay. The original application was dismissed on 4^th December 2006. The applicant did not commence to apply to set aside the decision until after he was detained on 17^th March 2009, more than two years later. Until then, he had remained in the community, knowing that he had entered the country on a false passport claiming to be a citizen of another country, and had nothing to regularise his situation whatsoever. The delay is, to my mind, another factor that militates against granting relief.

Decision

1. The applicant has not shown any basis for setting aside the decision made on 4^th December 2006. Even if his application were to be reinstated, it would be futile to do so, because the application has no reasonable prospects of success. It follows that the application will be dismissed with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  14 April 2009