SZLIX v Minister for Immigration - [2007] FMCA 1625

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1625

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – complaint about the actions of an alleged migration agent – Refugee Review Tribunal decision compromised by third party fraud – application allowed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 198, 412, 426A

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant:

SZLIX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2922 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

24 September 2007

Delivered at:

Sydney

Delivered on:

28 September 2007

REPRESENTATION

Advocate for the Applicant:

The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents:

Ms A Nanson
Australian Government Solicitor

ORDERS

The application filed on 21 September 2007 is allowed.
A writ of certiorari issue quashing the decision of the second respondent handed down on 26 June 2006.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine, according to law, the application for review of the delegate of the first respondent, dated 20 December 2005.
No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2922 of 2007

SZLIX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZLIX”.
The applicant is a 34 year old male who was born in and was a resident of Shandong City, Liaonong Province in the People’s Republic of China. He claims he had six years of formal education and was a self-employed food stall holder. He states that he departed China legally and without difficulty on 27 March 2003 on a passport issued by the Chinese authorities.(Refugee Review Tribunal (“the Tribunal”) decision, p.4)
The applicant claims he has been a Falun Gong practitioner in Shandong since 1999. He began after he saw practitioners in a park near where he had his food stall. Because of his involvement, he fears he will be harmed by arrest and detention if he returns to China.(Tribunal decision, p.4)
The applicant arrived in Australia on 11 November 2005 and applied for a Protection visa on 28 November 2005. A delegate of the Minister for Immigration refused to grant a Protection visa and that decision was affirmed by the Tribunal on 26 June 2006. The Tribunal wrote to the applicant on 23 February 2006 indicating that it had considered all of the materials before it but was unable to make a favourable decision on that information alone. He was invited to a hearing on 12 April 2006 to give oral evidence and present arguments. The applicant attended the Tribunal after 12 April 2006 to ask for a rescheduled hearing. A second invitation was issued on 15 May 2006 inviting him to a hearing on 26 June 2006. The applicant again did not attend and the Tribunal proceeded to make its decision pursuant to s.426A of the Act.(Tribunal decision, p.4)
The applicant is currently being held at the Villawood Immigration Detention Centre and was due to be removed from Australia on 22 September 2007. The applicant’s status is that of an unlawful non-citizen, and, pursuant to s.198 of the Act, is liable to be removed from Australia as soon as reasonably practicable.
On 21 September 2007 the applicant filed an application in the Federal Magistrates Court for judicial review of the Tribunal decision. The removal of the applicant from Australia has been delayed pending the resolution of these proceedings.
An affidavit of Angela Margaret Nanson, affirmed on 24 September 2007, contains the following documents:
a)An application to the Tribunal filed on 25 January 2006 seeking review of the decision of the delegate of the first respondent given on 20 December 2005 refusing to grant a protection visa.
b)A letter from the Tribunal dated 23 February 2006 addressed to the applicant at the address given as his address for service, PO Box 1321, Auburn, New South Wales, inviting him to attend the hearing of 12 April 2006.
c)A letter from the Tribunal dated 15 May 2006 and addressed to the applicant at the same address inviting him to attend a rescheduled hearing on 26 June 2006.
d)A letter from the Tribunal dated 26 June 2006 addressed to the applicant at the same address inviting him to the handing down of the Tribunal decision.
e)A letter from the Tribunal dated 13 July 2006 addressed to the applicant at the same address informing him of its decision and providing him with a copy of its reasons.

Consideration

The Tribunal decision under the heading “Claims and Evidence” records the circumstances in respect of the two Tribunal hearings. The following statement appears:
On 23 February 2006 Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 12 April 2006. The applicant did not make contact with the Tribunal, but attended the Tribunal after the scheduled hearing and stated that he did want to give oral evidence and present arguments. The Tribunal therefore wrote to the applicant again, on 15 May 2006 inviting him to appear on 26 June 2006. The applicant did not make contact with the Tribunal in regard to attending this hearing, nor did he attend the hearing or contact the Tribunal to explain his failure to attend. The Tribunal checked to make sure that the applicant is still in Australia, it also checked to ensure that correspondence was sent to the applicant’s correct address. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.(Tribunal decision, p.4)
The application filed in this Court on 21 September 2007 is supported by an affidavit prepared by the applicant and contains a typed statement which states:
1. When I lodged the application for a Protection Visa on 28 November 2005, I hired and fully authorized a migration agent to take care of my application due to my language barrier and lack of legal knowledge. I signed some documents as the agent advised without knowing what they are.
After my application was refused by the Department, the agent noticed me he will file a review application with the RRT on my behalf. Shortly after that, he gave me date and time of the hearing and advised me to attend the hearing by myself. When I arrived at the RRT according to the time I was given, I was advised by an interpreter that the Member would not attend the Tribunal. I showed the Tribunal my intention of providing oral evidence and was advised I will be given another hearing. The Tribunal also advised that I would receive the new hearing invitation within 2 weeks.
6 weeks after that I still have not received anything from the Tribunal. I then moved to Brisbane and worked there. I informed the agent my new contact address and left him my phone number before I left. Since the agent was my authorized correspondence receiver, I required him to inform me the next hearing date promptly once it is set. However, I have never received anything from him since.
2. I only realized I missed the second RRT hearing after I was put in VIDC. I filed a FOI request for the documents regarding my PV application but could not have it when I lodged the judicial review application with the Federal Magistrates Court. The application was therefore rejected.
I believed if I could have attended the RRT hearing, I would have a chance to present oral evidence and clarify some major issues lay out in the RRT’s decision record regarding my refugee claims.
I also believe the migration agent has not acted professionally. He never intended to discuss with me my persecution experience due to my Falun Gong background. This is the reason why the Tribunal states that my claims were vague and general. I strongly believe this is why the agent did not want me to attend the RRT hearing.
A hearing was held during the morning of 24 September 2007 and the applicant attending by telephone from the Detention Centre. This course was because the applicant initially refused to leave the Detention Centre for Court. When it became apparent that the applicant was required to be cross-examined under oath, I adjourned the hearing for the applicant to attend Court in the afternoon.
At the reconvened hearing the applicant gave evidence under oath which revealed the following:
a)The applicant had never resided at the residential address in Blacktown, New South Wales as was recorded in his Tribunal application. He indicated that he had initially resided at Auburn, New South Wales before moving to a farm somewhere in the vicinity of Campbelltown, New South Wales. He was unable to give a specific address in Campbelltown. He stated that he was provided with accommodation by the person who ran the Campbelltown farm.
b)The applicant’s address for correspondence, PO Box 1321, Auburn, was that of a friend. The applicant had that requested all correspondence be sent there. He was able to name his friend but said that he had lost contact with that person and was could not provide his/her residential address.
c)The response to the question in the Tribunal application, “Do you have an advisor you authorised to act for you in relation to this application?” was marked with an “X” in the “no” box and there is no information identifying any agent;
d)The applicant denied that the signature appearing on the application was his own and was unable or unwilling to identify who may have placed their signature on the document.
This evidence, in effect, indicates that the application as a whole is invalid because of a breach of s.412 of the Act. However, an applicant who has recently arrived in Australia and is unable to understand English or the legal requirements of a protection visa application, and is forced to rely upon the assistance of others is, unfortunately, at the mercy of unscrupulous people. The applicant also gave evidence that he was introduced to a migration agent who charged him $800 to complete his visa application. He was able to identify that person as a Mr Guo but could not provide any further information in respect of his business or contact details.
The applicant confirmed that the typed statement attached to his affidavit filed with his application on 21 September 2007 was prepared by a person at the Detention Centre on his instruction. After being reminded that he was under oath, the applicant was asked under cross examination if that document was true. He confirmed that it was. However, on further questioning, he stated that his friend had identified and contacted the migration agent and that the applicant had only ever seen him once when the original protection visa application was prepared. The applicant confirmed that he had had no subsequent contact with the agent. The applicant denied that the friend and the migration agent were in fact the same person. He was willing to identify the friend by name but indicated that he had also lost contact with the friend and had no way of contacting him.
Despite these apparent inconsistencies, the applicant insists that the typed statement attached to his affidavit is true. Ms Nanson, appearing for the first respondent, submits that the Department file contains no unclaimed correspondence which has been returned. I note that all the relevant correspondence before the Court has been addressed to the applicant by name at the same post office box in Auburn.
The first invitation letter was sent on 23 February 2006 which, on the applicant’s own evidence, was after he moved to Campbelltown. The applicant, or someone on his behalf, received the letter and the applicant knew he was to attend the Tribunal hearing on 12 April 2006. He did this, although late, and was able to inform the Tribunal of his attendance and his desire to give oral evidence. The Tribunal rescheduled and notified the applicant of the new hearing. The applicant, during his attendance on 12 April 2006, made no attempt to notify the Tribunal of his change of address and remained content for documents to be sent to the post office box in Auburn. Neither did the applicant attempt to further contact the Tribunal to enquire when the rescheduled hearing was to be held. He was content to leave New South Wales for Brisbane without further enquiry.
I am satisfied that the Tribunal fulfilled its obligation to provide the applicant with an opportunity to appear before it and give further evidence. The initial invitation contained notification that the Tribunal was not satisfied that the applicant had provided sufficient material to satisfy it that any protection obligations existed. To this extent, I am satisfied that the Tribunal did not make any jurisdictional error. Nor is it apparent from a fair reading of the Tribunal decision that any other jurisdictional error exists.
However, I am concerned about the role of the person who held himself out to be a migration agent to the applicant when he made his original visa application. I acknowledge that the applicant’s evidence is inconsistent and, in relation to certain aspects, evasive. Nevertheless, some of the material in this application shares commonalities with other protection visa applications made by Chinese nationals. An increasing number of applications before this Court have, as the address for receipt of correspondence, post office boxes in Auburn, New South Wales. A pattern is clearly emerging with the use of these particular post office boxes as the receiving point for correspondence addressed to applicants, whatever their actual physical location within the Sydney metropolitan area. In recent months, I have noted a large number of applications of this nature where the convenience of post office boxes in Auburn is getting extremely difficult to accept.
The applicant’s Tribunal application listed an address in Blacktown as his residential address. In sworn evidence, the applicant denied ever residing in Blacktown and claimed that he resided in Auburn before moving to Campbelltown and then Brisbane. The applicant claims that when his initial visa application was denied by the Minister’s delegate, the migration agent informed him that he would lodge a review application and that the agent would notify him of that application’s progress. Although evidence given by the applicant is inconsistent in this respect, the material before the Court supports the view that this was probably what took place.
Another similarity amongst these Court applications is that the grounds of review are brief, formulaic and unparticularised, usually raising broad general concepts of administrative review or bland statements of jurisdictional error. A similar cluster of these types of applications centres around post office boxes at 226 Elizabeth Street, Surry Hills. The grounds of review in those applications are also formulaic, although more expansive in nature than in the present case.
Consistent across all these applications is that they were assisted by a friend and that the friend introduced them to a migration agent; but none of the applicants will name or identify the business address, telephone number or provide any contact details for the agent. Various reasons are advanced, but usually that they have lost contact with both the agent and the friend and cannot recall these relevant details. The applicant in this case reluctantly identified the alleged friend but could not provide any contact details. Similarly, the agent was identified as Mr Guo but no other details were forthcoming.
The recent High Court decision in SZDFE v Minister for Immigration and Citizenship [2007] HCA 35 applies to the circumstances in this matter. In this matter, an unqualified person holding himself out to be a migration agent has accepted money to prepare and submit various applications on behalf of the applicant in his attempt to obtain a protection visa. Similar to SZFDE, the Tribunal, in its decision-making process, was compromised by “third party fraud”. I believe there is sufficient evidence before the Court to indicate that this has occurred despite the applicant’s reluctance to identify the party involved. I believe that the applicant has been frustrated by being denied the opportunity to state his claims to the Tribunal. Equally, he has been intimidated by the activities of the alleged migration agent.
In the circumstances, I believe that the matter must be returned to the Tribunal for proper consideration of the applicant’s claims.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 28 September 2007