SZJJM v Minister for Immigration

[2010] FMCA 465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJM v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 465

MIGRATION – Refugee Review Tribunal – application to have case reinstated – where original Court order was made in absence of applicant – whether the applicant was legally responsible for the protection visa application – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.46, 424A

Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1706
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant: SZJJM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1660 of 2007

Judgment of: Nicholls FM

Hearing date: 30 June 2010

Date of Last Submission: 30 June 2010

Delivered at: Sydney

Delivered on: 30 June 2010

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 14 May 2010 to set aside the orders made by Federal Magistrate Orchiston on 15 February 2008 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1660 of 2007

SZJJM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 14 May 2010 that orders made by Orchiston FM on 15 February 2008 be set aside. Those orders were made dismissing an earlier application made to this Court by the applicant on 25 May 2007, and as amended on 14 August 2007. That application was made under the Migration Act 1958 (Cth) (“the Act”) and sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. Federal Magistrate Orchiston made those orders in February 2008 in the absence of the applicant.

3. In short, therefore, the applicant now seeks reinstatement of the original application made to the Court, and for the Court to consider that application also in light of what she describes as “additional grounds” that are set out in a handwritten statement attached to the application of 14 May 2010.

Background

1. In her original application to this Court, as amended, the applicant sought review of the decision of the Tribunal dated 3 April 2007. The grounds in that application, as amended, generally alleged bias on the part of the Tribunal, asserted a breach of s.424A of the Act, and generally complained about the Tribunal’s reliance on independent information in considering her application.

2. What is apparent from the Court’s file is that, in relation to that application as amended, the applicant attended before Turner FM on 19 June 2007. His Honour set down the matter for final hearing in November 2007. This was subsequently re-listed for hearing before Orchiston FM on 15 February 2008. On that date the applicant failed to appear at the final hearing of her application and Orchiston FM, acting pursuant to rule 13.03A(c) as it then was of this Court’s rules, dismissed the application by reason of the applicant’s failure to appear at the hearing.

3. The applicant has now, on 14 May 2010, made an application for reinstatement of her case. I should note that nothing had been heard from the applicant as between her last appearance before Turner FM in June 2007 and the application made to this Court in May 2010. I note also that the applicant now gives her address for service as the Villawood Immigration Detention Centre and is currently in immigration detention. The application to reinstate her original application is supported by a handwritten statement which appears to raise one critical and central point.

The complaint now before the Court

1. The applicant argues that no valid application for a protection visa was ever made by her, and that therefore the Tribunal’s decision was ultimately invalid. This document asserts the following:

   “More Grounds For Appeal

   I wish to submit the following additional grounds for the Federal court to consider in conjunction with the other reasons contained in the Affidavit and other materials in my application for appeal.

   1. I did not sign the original Application for Protection visa. The migration agent did not ask me to sign. The forms were not explained to me before or after they were signed.

   2. I meet met the former migration agent only once. I know now that the forms were signed by my husband but my husband never had my authorization to sign any form or represent me. My husband also did not know what he had signed for.

   3. Therefore, the original application was an invalid application. Hence, the RRT did not have jurisdiction to decide on an invalid application as the Department of Immigration was wrong in making a decision on an invalid application.

   4. Hence, the Federate Magistrate was wrong in making a judgment on the decision of an invalid RRT decision.”

2. This document ultimately also contains an interpreter’s declaration which says:

   I, Steven Chan, am an accredited interpreter and translator in the languages of Cantonese and Mandarin. I certify that I have read and translate the above contents in Mandarin to [the applicant]. [She] appears to understand and she then put her signature down as shown above.

3. While this statement appears to be addressed to the Federal Court, and is couched in language of an appeal, the application in a case was made to the Federal Magistrates Court. On its face it asks that the orders made by Orchiston FM be set aside and the matter be reconsidered by this Court. I understood therefore, and accept the application on this basis, that the applicant asks this Court to proceed pursuant to rule 16.05(2) of this Court’s Rules:

   The Court may vary or set aside its judgment or order after it has been entered if:

   (a)the order is made in the absence of a party; or

   (b)the order is obtained by fraud; or

   (c)the order is interlocutory; or

   (d)the order is an injunction or for the appointment of a receiver; or

   (e)the order does not reflect the intention of the Court; or

   (f)the party in whose favour the order is made consents.

Before the Court

1. The matter first came before me on 16 June 2010. I adjourned the matter at that time to allow, first, further inquiries to be made by the Minister’s solicitors, and also to give the applicant the opportunity to consider or to prepare any other material that she wished to submit to the Court and to formulate any other arguments that she wished to put to the Court in support of the application.

2. Before the Court today the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Mr Johnson appears for the first respondent. I note that written submissions were filed for the Minister and I granted leave for those submissions to be filed in Court in these proceedings. I should note that also before the Court is a bundle of relevant documents (“Court Book” – “CB”) filed by the Minister on 20 June 2007, clearly relevant documents in relation to the original application put before the Court which was the subject of dismissal by Orchiston FM. Before the Court today the applicant stated that she had no further documents to provide to the Court.

3. She confirmed that her complaint today was that her husband had made the original application for a protection visa for her. That she did not know what was written in this application. She asserted that she did not know what was in it. But did understand now that the reference to Falun Gong, as contained as part of her claim was not correct. She alleged that a migration agent “made up” her case.

4. Immediately a problem that presents for the applicant is that there is no evidence whatsoever before the Court of any involvement by any migration agent in the making of the original protection visa application. Nor, it must be said, of any involvement by any migration agent in relation to the applicant’s application for review made to the Tribunal.

5. While the applicant has made an assertion that she paid a migration agent some money, despite opportunity no evidence has been put before the Court that any agent was ever involved. I say this also with reference to the material contained in the Court Book originally filed in relation to the original application for a protection visa.

6. In relation to the statement that the applicant has now put in support of her current application to the Court the applicant said that she dictated the contents of that statement to her “now” migration agent and that he wrote out what she told him to write. He wrote in English what she had told him in Mandarin.

7. In seeking to better understand the applicant’s statement and to better understand her complaint I gave the applicant the opportunity to explain what had been written in this statement, in particular in context of what she had said to the Court, that she had dictated the statement to her “now” migration agent.

8. It was clear however that the applicant had little understanding of what was written in the statement. She was not able to explain her statement that the original application was an invalid application and was unable to explain whether what were described as “additional grounds” for the Court to consider in the statement were meant to be additional grounds to what had been put in her original application to the Court or whether they were to stand separately and alone and as the sole basis for the reopening of her case. Indeed in her submissions at one point the applicant confirmed that she had little understanding.

9. What is left therefore today for the Court to consider is the statement as put before the Court by the applicant and to consider it on its face. At best, therefore, I understand the applicant’s argument in support of reopening her case to set aside the orders of Orchiston FM to be that the application made initially for a protection visa was an invalid application because she had no knowledge of its contents, noting again that no evidence has been put before the Court.

10. Nonetheless I can proceed today on the basis that, for the purposes of proceedings today, I accept the applicant’s assertion that she had no exact knowledge of what was put in her original application for a protection visa. But for the reasons which I am about to give, even in accepting that, I cannot see that this provides a sufficient basis to grant the application that the applicant has now put before the Court.

Consideration

1. The validity of an application for a visa, including a protection visa, is in the first instance governed by s.46 of the Act. I note that the application for a protection visa is reproduced at CB 1 to CB 26.

2. With reference to s.46 of the Act, there is nothing in the material before the Court to show that that application was not a valid application pursuant to that section. The relevant elements of that section, on what has been put before the Court in a proper evidentiary context, appear to be met. At the very least there is nothing in the material to show that it is not a valid application according to the requirements of s.46.

3. The applicant says to the Court now that she did not sign the application. She only met the migration agent once. That the forms were signed by her husband. As I said earlier, none of this is put in any evidentiary context to the Court. But rather in the signed statement created with some assistance from her “now’ migration agent.

4. I have regard to the Minister’s written submissions. I agree with the Minister that the resolution of this matter requires consideration of the applicant’s conduct since the making of the protection visa application. I agree that, even if the applicant can be said not to have signed the application, the real issue is whether the applicant was legally responsible for the protection visa application which was lodged on her behalf. In saying this I note the Minister’s reference to, and also rely on, Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1706 (“Zhang”) per Edmonds J, and in particular note what his Honour said at [14] and [15] of his judgment in that matter.

5. Prior to looking at the applicant’s conduct I should emphasise that there is no evidence before the Court of any involvement by any migration agent, or indeed for that matter her husband, in the making of the protection visa application. I note in particular what is set out at CB 9, that no assistance was given in the making of the application and, where relevantly reproduced at CB 10, the provision of no migration agent details. Indeed, although at CB 14 the application makes reference to the applicant having married, there is no other reference to any husband in any of the documentation contained in that bundle of application forms.

6. I should also note importantly that before the Court the applicant has not asserted that she had no knowledge of the application having been made on her behalf, but had no knowledge of its contents.

7. But in any event, turning to the applicant’s conduct since the lodging of the protection visa application. In my view that conduct has been such that a compelling inference is to be drawn that she was legally responsible for the application and therefore in that sense it was a valid application.

8. For some period the applicant had vigorously pursued her attempt to remain permanently in Australia as it derived from the making of the protection visa application:

   1)She lodged an application to the Tribunal on 14 March 2006. What is reproduced at CB 52 to CB 55 is an application for review of the delegate’s decision that relates to the very protection visa application that is the subject of her complaint now. The applicant makes no assertion now that she did not make that application to the Tribunal or that she had no knowledge of it.

   2)The applicant attended a hearing before the Tribunal as then constituted on 20 July 2006. She gave evidence to the Tribunal on that occasion. What is set out CB 77 reveals that her daughter also attended the Tribunal hearing with her. An application was made to this Court on 26 July 2006 seeking judicial review of that Tribunal’s decision. The applicant’s matter was subsequently remitted to the Tribunal by orders made by this Court and the applicant attended a further Tribunal hearing on 22 March 2007 (CB 103). I should just note that in being invited to attend these hearings the applicant responded to the Tribunal on both occasions, notifying the Tribunal that she did want to attend the hearing.

9. Following that “second” Tribunal decision the applicant again sought judicial review. This was done on 25 May 2007, and amended on 14 August 2007. The applicant also attended at a first Court date on 19 June 2007.

10. It is the case that since that time the applicant has done nothing to pursue that matter, that is at least until after she was taken into immigration detention. Nonetheless this does not detract from the fact that, up to that point, the applicant’s conduct was such that I find that she did have knowledge of the application for the protection visa that was originally made. I should also note that, with reference to the Tribunal’s unchallenged account of what occurred at the hearing, while the applicant may be said not to have had knowledge of the detail of that application I can be satisfied that she did have knowledge of the making of the application itself.

11. In all, I cannot see that an invalid application for a protection visa was made, either as the question arises in terms of s.46 of the Act, or in terms of the proposition set out in Zhang. The applicant’s own vigorous prosecution of that application does lead to the conclusion that the application was valid in that sense also. It must be said that the question remains that if the applicant now were to assert that she did not know that the application for a protection visa had been made, then what did she think she was doing in attending at the Tribunal on at least two occasions and making applications to this Court also on at least two occasions?

12. As I said earlier, in her so-called “grounds” to the Court in support of her application to reinstate the original application the applicant makes reference to “additional grounds”. In context this must be said to be the only grounds that are put in support of the application. I say this because there is a clear inconsistency in the applicant now also relying on the grounds as originally put in her application for judicial review. Those grounds, as I said earlier, generally asserted bias on the part of the Tribunal, failure of a particular aspect of procedural fairness and a failure by the Tribunal to properly deal with certain information. Importantly, there is nothing in that application to assert any invalidity on the part of the Tribunal or invalidity on the part of the protection visa application and subsequently as that may be said to have affected the exercise of jurisdiction by the Tribunal.

13. In marked contrast, the applicant now states that the Tribunal did not have jurisdiction to decide on the invalid application made for a protection visa. In light of that most recent complaint the earlier grounds of the originating application cannot logically stand. I am led to draw the conclusion that, in effect, the applicant, or perhaps more accurately whoever assisted the applicant with the drafting of this argument, is really seeking to put before the Court a complaint in replacement to that originally put before the Court about the Tribunal’s decision.

14. But whatever the case, what the applicant has now put before the Court lacks merit. I should also note, as the Minister also submits, that there is no allegation of any fraud on the part of any third party in the sense as considered by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”).

15. I note again the lack of relevant evidence. But even accepting for the purposes of this point the allegation that some migration agent and the applicant’s husband were involved in the making of the initial protection visa application that allegation, at best, does not rise above a complaint that the applicant was misled as to the detail of what was put in that application. But even at best, this does not rise to any allegation of fraud and certainly does not rise to any allegation of fraud in relation to the Tribunal and any conduct by such a third person as would vitiate any of the processes before the Tribunal (SZFDE).

16. The protection visa application was valid for the purposes of s.46. As such the delegate was bound to proceed to make a decision on the application.

17. The applicant sought review of that decision by the Tribunal. There is no allegation that she did not do so or did not know about such an application for review. The Tribunal in those circumstances was again statutorily compelled to review that decision, and it did so. The applicant came to this Court following the second occasion on which the Tribunal considered the application for review and, for reasons that continue to remain unexplained before the Court, did not appear at the hearing of her application for judicial review of that Tribunal decision. The orders of Orchiston FM that were made in the absence of the applicant still stand. There is nothing in what the applicant has now put before the Court which can form a basis upon which those orders can be properly set aside. I agree with the Minister’s submissions that there is no merit in the so-called grounds in the “application for a case”.

Conclusion

1. Given that I cannot see any basis to set aside FM Orchiston’s orders, I am therefore going to dismiss the application that has been made to this Court on 14 May 2010.

1. I should just note as a postscript that on the previous occasion before me I noted, again in the context of what the applicant orally put to the Court, the role of the person who assisted the applicant in the making of the application in a case. But I accept statements made by Mr Johnson, albeit from the bar table, that no matter survives such that the conduct of that person should be called into question, at least as it relates to his role in relation to the proceedings before this Court.

Costs

1. It is appropriate that an order for costs be made in this matter. There is nothing before the Court such as to outweigh or to argue against the making of such an order in the normal course. The applicant says that she does not have any money. That indeed may be the case. But that is not a sufficient reason not to make the order that the Minister seeks.

2. As to the amount, I am satisfied, having regard to the work that has been done by the Minister’s solicitors, that the amount sought is a reasonable amount. I will make the order in the amount sought.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  25 August 2010