SZIWV v Minister for Immigration
[2007] FMCA 657
•12 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 657 |
| MIGRATION – Review of decision of Refugee Review Tribunal – time applicant received Tribunal’s decision – Court’s jurisdiction – validity of application for protection visa – completed by migration agent – inclusion in application of all claims – deficiencies in completion of statutory declaration – substantial compliance – application dismissed. |
| Acts Interpretation Act 1901 (Cth), s.25C Migration Regulations 1994 (Cth), reg 2.07 |
| Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566 Wu v Minister for Immigration & Ethnic Affairs [1996] FCR 245 |
| Applicant: | SZIWV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1536 of 2006 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 18 October 2006; 21 February & 11 April 2007 |
| Delivered at: | Canberra |
| Delivered on: | 12 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Kaur-Bains |
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant to pay the first respondent's costs fixed in the sum of $10,000.
The Registrar be directed to refer all documents to the Migration Agents Registration Authority.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
SYG1536 of 2006
| SZIWV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment delivered on 12 April 2007 which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal made on 27 October 2003 and handed down on 20 November 2003. As noted later the applicant did not receive the Tribunal's decision until March 2006.
The applicant, who is a citizen of Indonesia, arrived in Australia on
24 May 2003. She lodged an application for a protection visa on
24 June 2003 with the Minister's Department through her migration agent, Mr David Chen.
The application for a protection visa was refused by a delegate of the Minister and an application for a review made to the Tribunal on
21 July 2003. The Tribunal affirmed the decision of the delegate not to grant a protection visa. The claims of the applicant in her protection visa application concentrate on her concerns about persecution of Chinese by ethnic Indonesians.
Tribunal consideration
The course of consideration by the Tribunal and its reasons for dismissing the application are accurately summarised in paragraphs 6 to 10 of the first respondent's submissions of 13 October 2006 which I adopt:
6. On 18 September 2003, the Tribunal wrote to the applicant advising her that it had considered the material before it relating to her application but that it was unable to make a favourable decision on that information alone and it invited her to an oral hearing (CB 50-51) (“the invitation letter”).
7. The hearing letter was posted to the applicant not only to the service address provided (ie that of her adviser) but also to the applicant’s residential address. No response was received. The letters were sent under registered cover and were not returned to the Tribunal (CB 59.7).
8. On three occasions in early October 2003 the Tribunal telephoned the applicant’s adviser for news of the applicant. The Tribunal left messages with the adviser which were not returned (CB 60.1).
9. The applicant did not appear on the day of the scheduled hearing and the Tribunal proceeded to make its decision in her absence (CB 60.2).
10. The Tribunal was not satisfied on the evidence before it that the applicant had a well founded fear of persecution for a Convention reason. In particular, the Tribunal:
(a) accepted that the applicant had a genuine subjective anxiety about whether she might be harmed in the future given that there were sporadic outbreaks of violence and rioting in which harm had been experienced by ethnic Chinese (CB 61.1);
(b) but found that, based on independent evidence, ethnic Chinese were not targets of systematic harm in Indonesia (CB 61.2), and therefore, was not satisfied that the applicant, simply on general racial grounds, had a well-founded fear of persecution because of her race (CB61.8);
(c) found that the Indonesian authorities were willing and capable of providing protection to the applicant at times of need and that there was no systematic or general denial of protection of minority groups such as the ethnic Chinese (CB 61.10-63.9);
(d) accepted that, based on independent evidence, while corruption, including bribe-taking, was widespread and extortion could occur for a Convention reason, was not satisfied that this was such a case (CB 64.3). This was because it was the wealth of the Chinese that was the target of any corruption and not their ethnicity. That is to say, the crimes were purely opportunistic and economic, and were not racially motivated (CB 64.4); and
(e) found that the applicant’s evidence did not lead the Tribunal to conclude that she suffered serious harm in dealing with demands for money (CB 64.7) nor did it lead the Tribunal to accept that the applicant suffered serious discrimination or harm in the past, or that she was likely to suffer such harm in the future for a Convention reason (CB 64.10-65.2).
The Tribunal's conclusion is set out in pages 9-10 of its decision (Court Book 64-5):
In sum, I do not accept that the applicant has suffered serious discrimination or harm in the past and I am not satisfied that she has a real chance of being seriously harmed in the future for a Convention reason. I find that the Indonesian authorities do not condone attacks on ethnic Chinese. Moreover, on the basis of the independent evidence given above, I am satisfied that on return to Indonesia the applicant would not face harm or mistreatment amounting to persecution by reason of her ethnicity in relation to which reasonable and effective protection would be denied by the authorities of Indonesia.
Grounds
When this matter first came on for hearing in October 2006 the applicant was not represented. She gave evidence that the application to the Tribunal had not been signed by her. Indeed she had not known what had happened to her original protection visa until she was detained by the Department in May 2006.
Consequently at the suggestion of the Minister the Court appointed
Ms Kaur-Bains as her barrister and an amended application was filed on 23 March 2007. The Court is grateful to Ms Kaur-Bains for taking on this brief and for her assistance to the Court.
The amended application abandoned all the grounds in the application filed on 29 May 2006. The applicant's new grounds set out in the amended application are:
1. The Migration Act 1958 (as amended) (“the Act”) and the Migration Regulations (“the Regulations”) set out statutory requirements for an application for a protection visa to be valid.
2. The application for a protection visa dated 17 June 2003 and lodged on 24 June 2003 did not comply with the essential requirements under the Act and the Regulations for a protection visa application to be valid.
3. In the circumstances the application lodged for a protection visa was invalid.
4. Therefore, pursuant to section 47(3) of the Act the first respondent and his delegate were obliged not to consider the application for a protection visa lodged on its merits.
5. On 30 June 2003 the delegate of the first respondent erred in law in considering and determining the application for a protection visa on its merits, rather than declining to consider the application.
6. At the time the Refugee Review Tribunal considered the application for review of the delegate’s decision the application for a protection visa was still invalid for the reasons outlined at paragraph 2 herein.
7. On 27 October 2003 the Tribunal erred in law in:
a. Considering the application for a protection visa on its merits;
b. Affirmed the decision of the delegate of the first respondent.
8. The Tribunal’s jurisdiction was limited to holding that the decision of the delegate of the first respondent was invalid and was not permitted under the Act under section 47(3) of the Act.
9. In the premises the decision of the Tribunal was not authorised by the Migration Act and its Regulations and therefore the Tribunal’s decision was infected by jurisdictional error.
Significantly the application does not plead that the decision of the Tribunal is vitiated by any alleged fraud or misconduct on the part of the applicant's migration adviser.
Moreover the applicant made two concessions in her written submissions:
·The application for review to the Tribunal was validly made;
·The Tribunal, pursuant to section 425 of the Act, invited the applicant to appear before the hearing and on the applicant's non-appearance, pursuant to section 426A, proceeded to make a decision on the review.
Jurisdiction
Section 477 of the Migration Act 1958 sets out the time limits for applications to this Court (see also items 41 and 42 to Schedule 1 of the Migration Litigation Reform Act 2005). Section 477 provides that time runs from actual notification of the decision. The question here is when the applicant was actually notified of the decision: either around the time the applicant was sent the decision by the Tribunal – about
20 November 2003 – or as the applicant says when she was in the Villawood Detention Centre in May 2006.
If the notification was in November 2003 the application to this Court is out of time and the Court has no jurisdiction to hear the matter. If the notification was in May 2006 it is within time and no jurisdictional question arises.
The applicant gave evidence that she first received a copy of the Refugee Review Tribunal decision from Mr Toufic Laba-Sarkis in May 2006 when she was held in Villawood Detention Centre. Mr Laba-Sarkis has testified that he obtained a copy of the decision from the internet and on 28 May 2006 gave it to a departmental officer to give to the applicant.
Ms Pepper for the Minister submits that the applicant should not be believed. While I have some lingering concerns about the applicant's credibility, and I refer particularly to her evidence on the non-receipt of several letters, I do accept what she says on this point. Mr Laba-Sarkis indirectly corroborates her evidence that she was first notified of the Tribunal decision in May 2006.
The Court therefore has jurisdiction to hear this matter.
Applicant’s case
Ms Kaur-Bains has summarised the applicant's case in paragraphs 2 to 7 of the written submissions (headings, footnotes and cross-references omitted):
2. The application for a protection visa lodged was invalid. It was invalid because it did not comply with the requirements of sections 45 and 46 the Migration Act 1958 and Regulation 2.07 of the Migration Regulations. Regulation 2.07 required the applicant to complete the approved form in accordance with any directions on it.
3. Form 866, being the application for a protection visa contained the directions for the completion of the statutory declaration. The statutory declaration in the protection visa application was not completed as required by the directions on the form. The applicant was not aware she was signing a statutory declaration. Nor were the contents of the statutory declaration interpreted for the applicant. Further, the applicant did not sign the statutory declaration before a person who was eligible to witness the statutory declaration.
4. Further, the applicant contends that the application for a protection visa was not validly made under sections 45 and 46 of the Act as it did not include all of the applicant’s claims.
5. If the applicant makes good the matters referred to in paragraphs 3 and 4 then the effect of sections 45 and 46 together with regulation 2.07 is that the applicant has not made a valid application as required by the Migration Act. Section 47(3) of the Migration Act makes it clear that the Minister “is not to consider an application that is not a valid application”. Section 65(1) of the Migration Act makes it clear that the Minister can only consider the application on its merits if a valid application for a visa has been made. If no valid application has been made then the Minister has no power under the Migration Act to consider the application on its merits and is limited to determining that the application has not been validly made.
6. On 30 June 2003 the delegate of the Minister erred in law in considering and determining the application for a protection visa on its merits, rather than declining to consider the application.
7. When the Tribunal considered the applicant’s application for review, the application for a protection visa was still invalid Therefore, the Tribunal was not authorised under the Migration Act, by virtue of section 47(3) of the Act, to consider the application on its merits. The Tribunal’s jurisdiction was limited to holding that the decision of the Minister was invalid and was not permitted under the Migration Act.
Relevant legislation
Sections 45, 46 and 47 of the Act at the time of the protection visa application – 24 June 2003 – relevantly provided:
Section 45 Application for visa
(1)Subject to this Act and the regulations, a non‑citizen who wants a visa must apply for a visa of a particular class.
Section 46 Valid visa application
(1)Subject to subsections (1A) and (2), 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
…
(2)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.
(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.
…
Section 47 Consideration of valid visa application
(1)The Minister is to consider a valid application for a visa.
…
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
…
Regulation 2.07 of the Migration Regulations1994 sets out some requirements for an application for a visa:
Regulation 2.07 Application for visa — general
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a)the approved form (if any) to be completed by an applicant;
(b)the visa application charge (if any) payable in relation to an application;
(c)other matters relating to the application.
(3)An applicant must complete an approved form in accordance with any directions on it.
…
Validity of protection visa application
The applicant’s case rests on the premise that her application for a protection visa was invalid.
Applicant's evidence
The applicant’s evidence to the Court can be summarised:
·she saw a migration agent, David Chen, in June 2003 with a view to making a protection visa application and told him her story
·the agent had her sign a blank form 866 for a protection visa. She signed in three places shown at Court Book pages 15, 25 and 27
·she did not see the statement set out at Court Book 7 and 8 which outlines her claims before it was sent to the Department with the application
·she left that to Mr Chen who said he would take care of completing the form and composing the statement
·she trusted him to do "a good job"
·she authorised him to act on her behalf (see Court Book 27)
·she initially said the statement at Court Book 7 and 8 did not accurately reflect her claims. But under cross-examination she resiled from this and conceded that the substance of the claims that appear at those pages were correct
·she did not read or write English.
Substantial compliance
An application for a protection visa must be made on the relevant form, in this case form 866 (Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245). This was done in this case.
It is also the case that regulation 2.07 requires substantial compliance with the directions on the form, not strict compliance (Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566; NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199; SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393; see also section 25C of the Acts Interpretation Act 1901).
Inclusion of all applicant's claims for protection
The applicant submits that the protection visa application did not cover all of her claims.
Nevertheless she agrees that most of her claims for protection were covered in the statement at Court Book 7 to 8:
·she claimed oppression from native Indonesians towards her as a Chinese. She felt that she was unsafe because of events in 1998 when native Indonesians came to her home and looted it and took goods. She felt unsafe living in Indonesia because she was afraid that the events of 1998 would be repeated. She also said she was injured by Indonesians on the occasion that her house was looted
·Indonesian natives also asked for money because they thought that the Chinese were rich. The applicant said she was afraid to say no because she was afraid she would be hurt. She had been hurt on one occasion
·she was asked to pay more than the standard fee to obtain a passport and the applicant thought that was because she was Chinese
·on another occasion someone asked her for money. When she said no the person yelled at her and said that if she did not give him the money he would hit her.
The applicant however asserts that a claim based on religion was not covered in that statement and therefore not put before the decision maker.
She gave evidence under cross-examination that she felt unsafe going to church. She was discriminated against because of her nationality and religion – because she was Chinese and because she was not Muslim. The applicant says that when she tried to walk into the church the local Indonesians would try to stop her.
The applicant gave this evidence under cross-examination before me. But in my view it is unclear from her evidence whether she articulated these specific concerns based on her religion to her migration agent.
Furthermore as Ms Pepper has pointed out the religion claim is mentioned on three different occasions in the statement at Court Book page 7:
I also experience some difficulty with the Moslem who normally come to our house
…
He said that I am not a generous person and I should be ashamed of my religion for not teaching me to be a generous person.
…
After much thinking, I decided to left Indonesia for Australia because I would like to live in a country that appreciates it's people no matter what background and religion they belong to.
Ms Kaur-Bains also asserts that under cross-examination the applicant did not agree that she told the migration agent of the claims about "the ID issue" contained in the first part of paragraph 2 of the statement at Court Book 7. In my view the transcript does not support this assertion by Mr Kaur-Bains. In fact the applicant was not cross-examined in relation to the ID issue.
In SZGJO Bennett J said:
10. The Full Court in Bal upheld the principle that a “substantial compliance” requirement is applicable to the visa application form. Substantial compliance is to be assessed by reference to the purpose of the form in eliciting the applicant's claim to be a refugee within the Convention and the questions posed in the form were only guidelines to that end. In Bal the Full Court held that it was sufficient that only the “bare bones” of Mr Bal's claims were outlined in the form, namely that the applicant had a well-founded fear of persecution at the hands of the Turkish police for reasons of religion, membership of a particular social group and political opinion, in particular by reason of his being a Kurd and a Christian.
11. In this case, the appellant had made a claim in the visa application of persecution based on the practice of Falun Gong. The appellant submitted that the detail of his claims as recorded in the visa application were false. At [19] of his decision, the Federal Magistrate noted the appellant's oral evidence that he had told his migration agent about his alleged persecution in China due to his practice of Falun Gong. It is clear that, while the details of his claim in the visa application were incorrect, the core claim of persecution by reason of his practice of Falun Gong was correct. Accordingly the visa application contained the “bare bones” of the appellant's claim.
The applicant contends that the visa application was not validly made as it did not include all of the applicant’s claims. I do not agree. I am satisfied that significantly more than the “bare bones” of the applicant's claims were provided at Court Book 7 and 8 which was part of the protection visa application.
Statutory declaration
The applicant says that form 866, being the application for a protection visa, contained the directions for the completion of a statutory declaration. She asserts that the statutory declaration at Court Book 15 in the protection visa application was not completed in the manner required by the directions on the form in three respects:
·she was not aware she was signing a statutory declaration
·the contents of the statutory declaration were not interpreted to her
·she did not sign the statutory declaration before a person who was eligible to witness the statutory declaration.
It can be accepted from the evidence that:
·the applicant personally signed the statutory declaration
·she does not read or speak English
·she was not aware she was signing a statutory declaration
·she did not read the statutory declaration, nor have it translated to her.
Although the applicant says only the agent and his secretary were present when she saw the agent, there is no evidence about when or by whom the statutory declaration was witnessed. As Ms Pepper points out this may have been the agent's secretary – we just do not know. Ms Kaur-Bains says that the failings noted above invalidate the application. There was not substantial compliance.
It is however clear that the agent was authorised to act for the applicant at the time the form was completed and lodged.
In SZGJO Bennett J said:
10. … Substantial compliance is to be assessed by reference to the purpose of the form in eliciting the applicant's claim to be a refugee within the Convention ….
Here the purpose of the form has been satisfied by identifying the applicant's claims at Court Book 7 to 8. The applicant agrees that she signed the form in three different places and she authorised the agent to complete and lodge the form. In my view there has been substantial compliance as required by the authorities, notwithstanding any deficiencies in the completion of the statutory declaration.
In NAWZ the Full Federal Court said:
17. 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 to require the automatic invalidity of a visa application that an applicant has caused another to complete 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. (cross-references omitted)
This principle applies even more strongly here where the applicant voluntarily signed the form and authorised her agent to complete it. As their Honours said in NAWZ:
16. The appellant is fixed with responsibility for the actual content of the false application, filled in on his behalf (see Migration Act 1958 (Cth), s 98).
The circumstances are different in the present case from those in NAWZ. But the applicant is still fixed with responsibility for the content of the application.
In my view Parliament could not have intended that the deficiencies in the statutory declaration noted here would invalidate the application. Such an approach would place an impossible burden on officers dealing with applications. It would also in effect bring about a change in the purpose of the declaration. Furthermore requiring strict compliance in a statutory declaration could well disadvantage some applicants – “such an approach would be a triumph of form over substance” (Minister for Immigration & Multicultural Affairs v A (1999) 91 FCR 435 at [43]).
Consequently substantial compliance with the form and thus the protection visa application was effected. The protection visa application was valid pursuant to s.46 of the Act. The delegate was correct to have considered the application under the Act.
Tribunal decision
The protection visa application was valid. The applicant has conceded that the Tribunal application was also valid and has not pleaded any error in the Tribunal's reasons or decision apart from that which flows from her assertion of invalidity of the primary decision. It follows that the Tribunal correctly exercised its jurisdiction under section 415 of the Act.
Conclusions
I have found that the June 2003 protection visa application was valid and that there has been no legal error by the Tribunal going to jurisdiction.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers, it clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal. The decision of the Tribunal is therefore a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
In the circumstances the application must be dismissed.
In any event had I found jurisdictional error I would not have been minded to grant relief in the circumstances of this case. In particular the applicant effectively sat on her hands for three years after she made her protection visa application, doing very little to follow it up. She only apparently pursued the matter with any vigour when she was placed in immigration detention.
It is abundantly clear also that Mr Chen, the migration agent, handled the applicant’s protection claim in a most unsatisfactory and unprofessional way. I therefore propose to direct the Registrar of the Court to refer the papers in this matter to the Migration Agents Registration Authority.
The orders are:
·the application be dismissed
·the applicant to pay the first respondent's costs fixed in the sum of $10,000
·the Registrar be directed to refer all documents to the Migration Agents Registration Authority.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: H Tilemann
Date: 26 June 2007
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