SZMGX v Minister for Immigration
[2008] FMCA 1529
•20 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1529 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – national of China claiming fear or persecution as a Falun Dafa practitioner – where applicant did not attend Refugee Review Tribunal hearing – fraud – where applicant claims fraud by her migration agent – application for review invalid. |
| Migration Act 1958 (Cth) ss.412, 414, 424, 424A, 425, 426A, 474 |
| SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35 Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142 SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 |
| Applicant: | SZMGX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1257 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 September 2008 |
| Date of Last Submission: | 9 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Applicant: | Not legally represented |
| Solicitor for the Respondent: | Ms Watson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1257 of 2008
| SZMGX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 10th April 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks orders in the nature of certiorari, prohibition and mandamus. She claims that the Tribunal failed to comply with the requirements of s.425 of the Migration Act and/or the Tribunal’s decision was affected by fraud on the part of the applicant’s agent.
Particulars of that ground are that the Tribunal proceeded on the basis that the applicant had made an informed decision not to attend a hearing, where in fact, her agent, to whom the correspondence went, made no mention to her of a hearing and did not inform her of any right to a hearing, and did so dishonestly. The applicant relies on the decision in SZFDE v Minister for Immigration and Citizenship[1].
[1] (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35
Background
The applicant arrived in Australia on 22nd October 2007. She applied for a Protection (Class XA) visa on 1st November 2007, claiming to have been persecuted in China because she was a Falun Dafa practitioner.
A delegate of the Minister refused her application on 21st December 2007. The applicant then applied to the Refugee Review Tribunal for a review of that decision.
Application for Review by the Refugee Review Tribunal
The Tribunal received an Application for Review on 22nd January 2008. In that application, the applicant gave a residential address in a suburb of Sydney and, in Section D of the form, gave her address for correspondence as “P.O. Box 961, Hurstville BC NSW 1481”[2].
No migration adviser or lawyer was referred to in the application.
[2] Court Book 66 and 67
The Tribunal wrote to the applicant at that postal address on
23rd January 2008, acknowledging receipt of her application. The Tribunal wrote again to the applicant on 15th February 2008 at that same address, inviting her to attend a hearing to take place at 10:00 am on 14th March 2008. A written notation on the Tribunal’s copy of the letter bears the words “Posted – 15/2/08”.[3]
[3] Court Book 71
The Tribunal wrote another letter to the applicant on 15th February 2008. This letter was headed “invitation to Provide Information in Writing” and invited the applicant to provide certain additional information.[4] This letter appears to have been written to comply with section 424 of the Migration Act. A written notation on the Tribunal’s copy of that letter bears the words “Posted – 18/2/08”.
[4] Court Book 73
The Tribunal sent another letter to the applicant that same day.
This letter was headed “Invitation to Comment on/respond to Information in Writing”. It appears to have been written to comply with s.424A of the Migration Act. The Tribunal’s copy of this letter bears the written notation Posted – 18/2/08”.[5]
[5] Court Book 75
The applicant did not attend the Tribunal hearing on 14th March 2008. The Tribunal, noting that the applicant had not attended although she had been notified, proceeded to make its decision on the review without taking any further action to enable the applicant to appear before it, under s.426A of the Migration Act.
The Refugee Review Tribunal Decision
The Tribunal considered the material before it. The Tribunal signed the decision on 19th March 2008 and handed the decision down on
10th April 2008. A copy of the Decision Record was posted to the applicant at the Post Office Box number she had previously given in her application.
The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The Tribunal’s Findings and Reasons
The Tribunal found that the applicant was a national of the People’s Republic of China. The Tribunal noted the applicant’s claims to have been illegally arrested and placed in a Forced Labour Camp, where she was tortured. Visits by her family members were suspended.
The Tribunal stated:
There is nothing to support these claims other than the applicant’s unsubstantiated assertions. There are insufficient particulars provided by the applicant to enable the Tribunal to be satisfied that these events occurred.[6]
[6] Court Book 89
The Tribunal found itself unable to be satisfied on the evidence before it that the applicant faced a real chance of persecution should she return to the People’s Republic of China at the time of the hearing or in the foreseeable future. The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason and, accordingly, was not satisfied that she was a refugee.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 16th May 2008. She filed an amended application on 1st August 2008, which had been drafted for her by a barrister on the Refugee Review Tribunal Legal Advice Panel, Mr Jackson.
The applicant filed an affidavit on 9th September 2008. The affidavit contained a hand-written document in Chinese characters and a typed English translation.
The relevant parts of that affidavit say, after describing how the applicant arrived in Australia to escape persecution in China and decided to apply for political refuge in Australia:
I did not have good English literary skill. I was introduced to a migration agent, Jian Min Zhou, by a friend of mine in Australia. He helped me apply for working visa. At first, I was very happy and trusted him deeply. He charged me $1500 service fee. I paid him $600 on the first occasion and $300 the second time. He wrote all documents on my behalf. When I paid him $300 on the second time, I (sic) asked me to sign on some documents written in English. I signed even though I do no understand any of the documents.
Only until my very last telephone call to him, I was told by Jian Min Zhou that my application had been denied. I then asked him why it was so when I have not even been to RRT. He was irritated and hung up after telling me that there was no need. Frantically I asked my friend for explanation and she told me it was impossible not to have RRT.
The next day, I received a telephone call from an unknown gentleman that I was sent an email on this matter. I searched for another migration agent for help. The new migration agent, whose name is Jia Shi, and worked in Rm 616, level 6, street no. 368 in City. After reading my letter, she told me that I had one last day to immediately produce and hand in additional documents. She also required me to pay $1000. I was frantic and worried so I paid Jia Shi the fee of one thousand dollars.
After my payment to Jia Shi, all she did to help me was writing up one piece of document. Afterwards, she did not inform me even when the date of my hearing had been changed. She had no knowledge this matter herself either.
The Minister’s lawyers filed an affidavit by Sharon Elizabeth Hanstein, solicitor, on 1st September 2008. In that affidavit, Ms Hanstein deposes how she made some searches to try to identify the person known as Jian Min Zhao (or Jian Min Zhou). She was unable to find a record of any registered migration agent by that name and does not have any telephone number, address or email address for the person referred to by the applicant.
The applicant gave oral evidence with the assistance of an interpreter and was cross-examined by Ms Watson, who appeared for the Minister.
The applicant told the Court that the Post Office Box at Hurstville was not her postal address, but that of the previous agent. Whilst that address had been used on her amended application, the applicant had another address which she preferred to use, and a Notice of Address for Service was filed in Court.
The applicant said that she was introduced to Jian Min Zhou by a friend who said she would have to pay him $1500. They met at Burwood Railway Station where she signed a document in English. When she asked what it was, he said:
“Doesn’t matter, you just sign.”[7]
[7] Transcript page 8
The applicant gave evidence from Jian Min Zhou’s office took her to the Department of Immigration. She had a sticker placed on her passport, which she was told was a work permit.
The applicant said that she first met the agent after a friend gave him her telephone number and he called her. He arranged to meet her at her home initially, where she paid him the first instalment of $600.00.
She never received a business card or a receipt for the money. In the first meeting the agent said he would get the applicant a work permit. She said he asked her what she had done in China and she said she practised Falun Gong. She was even locked up for three months.
The applicant said of the statement that was submitted with her application for a protection visa:
That was written by him, not my real experience.[8]
[8] Transcript 11
The applicant then met the agent at Burwood Station, where he told her that she had failed “the first step” and he now needed to charge her $300 for “the second step”. The applicant did not know whether he meant the Refugee Review Tribunal or not.
The applicant admitted that she did not know what was written by the agent in the documents submitted to the Department of Immigration on her behalf. She said:
I didn’t know much when I came to Australia. All I thought was that I need to stay here. I need to work.[9]
[9] Transcript 14
The applicant said that the agent rang her and said her application had been refused. She asked him about going to the RRT and he replied:
What for?[10]
[10] Transcript 15
The applicant knew that some of her workmates had been to the RRT. She said that the agent did not tell her to go to the RRT far the hearing. She realised that it was about time that she went to the RRT.
It was put to the applicant in cross-examination that she signed the application for review. She agreed that she had signed that document but she did not know what the document was that she was signing.
After that, the applicant received in the mail from the agent the copy of the Tribunal decision. She then went to see a woman called Jia Shi, who charged her $1000 and prepared some documents for her to go to Court. The applicant did not know the street in Sydney in which this woman had her office, but from her description it would appear to be in the Haymarket area of Sydney. The new migration agent, if that is what she was, organised for the applicant’s documents to be filed at the Court Registry.
Submissions
The applicant told the Court that she thought that Jian Min Zhou did not mention a Refugee Review Tribunal hearing to her. She said he did so dishonestly, because he just took money from her and did not inform her about things. She asked the Court to give her a chance to appear before the RRT.
Ms Watson, who appeared for the Minister, noted that the applicant had been requested by the delegate to attend an interview on 12th December 2007, but did not do so. The applicant did not attend the Tribunal hearing.
Ms Watson referred to the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZLIX[11], where the decision in SZFDE was distinguished. Their Honours held that the simple fact of failure to inform or bare negligence or inadvertence will not necessarily give rise to fraud on the Tribunal.[12]
[11] (2008) 245 ALR 501; [2008] FCAFC 17
[12] SZLIX at [33]
The decision in SZFDE was also distinguished in SZLHP v Minister for Immigration and Citizenship[13] on the basis that the appellants in SZFDE were not complicit in any attempt to deceive the Tribunal. Graham J noted the admonition of French J in Minister for Immigration and Multicultural Affairs v SZFDE[14] at [74] that judicial officers dealing with allegations of fraud on the Tribunal should make findings as to what was said to be fraudulent, how it was fraudulent, and how it was acted upon.[15] There could be no breach of s.425 of the Act or of the Tribunal’s obligation to provide procedural fairness if there was no valid application before the Tribunal.[16]
[13] [2008] FCAFC 152
[14] (2006) 154 FCR 365; [2006] FCAFC 142
[15] SZLHP at [36] and [45]
[16] SZLHP at [89]
It is submitted for the Minister that there is no evidence in this present case that could lead to a finding that there was a fraud by a third party which disabled the Tribunal from the true discharge of its imperative statutory functions with respect to the conduct of the review.
The applicant had claimed that she had never signed the RRT application form and had not even seen it.
In her application and affidavit the applicant has claimed that she authorised a migration agent to act on her behalf to obtain a protection visa, but she never filled in any form of application for review and was not aware that she even had an application for review before the Tribunal until after the tribunal had made its decision. Ms Watson submitted that the evidence falls far short of the particulars provided in support of the applicant’s ground of review. Whilst the particulars allege dishonesty on the part of the migration agent, they do not specify what the alleged dishonesty was.
The Tribunal, it is submitted, proceeded to make a decision under
s.426A of the Act after finding that the applicant had been properly invited to the hearing. This was a course open to the Tribunal.
The applicant has not established any fraud on the Tribunal that affected the Tribunal’s decision-making process.
Ms Watson further referred the Court to the decision of Middleton J in SZHVM v Minister for Immigration and Citizenship[17]. In that case the appellant was working for the migration agent as a nanny. He told the applicant that she should not attend the hearing of the Refugee Review Tribunal because she had to look after the agent’s child. Middleton J found that the agent was motivated by his personal desire to have the appellant look after his child for the day because it suited his personal needs and was in no way motivated to prevent the Tribunal from conducting a hearing. The circumstances were not such as to amount to fraud because there was no relevant fraudulent conduct vis-à-vis the appellant.[18]
[17] [2008] FCA 600
[18] SZHVM at [48]
It was further submitted on behalf of the Minister that if the review application was made without the applicant’s authority, the application was not valid and the Tribunal had no jurisdiction to conduct a review (Migration Act, ss.412(2) and 414(1); see also SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs[19] and SZLHP per Graham J). Even if the Tribunal’s jurisdiction were affected by jurisdictional error, the Court should not require the Tribunal to conduct a review of the delegate’s decision.
[19] [2006] FCA 393
Conclusions
It is now well established[20] that, in making a finding of fraud, the Court should specify:
·What was said that was fraudulent
·How it was fraudulent
·How it was acted upon
[20] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35 at [41]; Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142 at [74]; SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 at [36]
The High Court, in SZFDE, has also considered the question of motive:
[45] Neither the reasons of the Federal Magistrate nor the dissenting reasons of French J in the Full Court considered in any detail the question of the motives of Mr Hussain in acting as he did with respect to the rejection of the invitation to attend the Tribunal hearing. The inference is well open on the evidence that Mr Hussain acted as he did for self-protection, lest in the course of a Tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions imposed by Pt 3 Div 2 of the Act, particularly by s 281.[21]
[21] (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35 at [45]
In SZHVM v Minister for Immigration and Citizenship[22] at [47], Middleton J said:
SZFDE does not stand for the proposition that a failure by an applicant to attend the Tribunal hearing due to the fault or conduct of a third person bears the result that the Tribunal decision to proceed under s 426A is always vitiated by error.
[22] [2008] FCA 600
In this case, the applicant was introduced to one Jian Min Zhou, who she believed to be a migration agent. This person has not been located, despite efforts by the Minister’s lawyers to do so. It would appear from the affidavit of Sharon Hanstein that there is no registered migration agent by the name of Jian Min Zhou (or Zhau) in Sydney.
From the applicant’s evidence, it is clear that her main aim, at least at first, was to obtain a work permit on her visa:
MS WATSON: What discussion did you have with him at that time? What did you ask him to do for you?
INTERPRETER: He said he would get me a work permit which allowed me to work in Australia.
MS WATSON: So that was all you were interested in, was getting a work permit?
INTERPRETER: I just arrived in Australia. I did not have much money. Of course I needed to work to – and therefore I need a work permit.
MS WATSON: So, you didn’t tell him about any claims that you wanted to make about your protection visa application?
INTERPRETER: I didn’t send those things. All I did was that, okay, I need to go out to work. I need a work permit.[23]
[23] Transcript 10
Whilst the applicant claimed that she suffered persecution as a Falun Gong practitioner in China, she was aware that what Mr Zhou was writing in the application for her was not the truth:
MS WATSON: You just said that you practised Falun Gong and that you were you locked up for three months. Is there anything else you told the agent about your problems in China?
INTRPRETER: I only told him I practised Falun Gong. Also I gave him where I worked, the address.
MS WATSON: Do you now claim that you were put into a women’s forced labour camp and suffered a lot of ill treatment there?
INTERPRETER: Yes, three months.
MS WATSON: The statement which was supplied in support of your application refers to you having – quite a detailed statement, being arrested on 20 April 2006 and that you were still in detention on 11 December, which is a period of about eight months?
INTERPRETER: That was written by him, not my real experience.
MS WATSON: Okay, so you don’t say that this statement which was put in support of your application is a true statement?
INTERPRETER: That’s right, not true.[24]
[24] Transcript 11
The applicant conceded that she had signed the application to the Refugee Review Tribunal although she did not know what was in the document.
I am not satisfied that the applicant ever consciously made an application for a protection visa. Her aim was to obtain a visa that would enable her to work. True it is that she referred to going to the RRT but she did so when referring to what had been said by other people, who told her that part of the process was to go to the RRT.
The applicant has admitted signing documents in English whose contents she did not understand. Whilst she said in cross-examination that what was put in the statement in support of her application for a protection visa was written by the “agent” and was not her account of her life in China, there is no evidence as to when she became aware of the contents of the statement.
The applicant said that she told the agent that she had practised Falun Gong in China and had been detained for three months. However, she signed a document, or a series of documents, of whose contents she had no idea, including an application to the Refugee Review Tribunal for review of a decision of the delegate.
I am not satisfied that the applicant has made a valid application to the Refugee Review Tribunal. Accordingly, the Tribunal 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[25]).
[25] [2006] FCA 393
This, in my view, is not a case of fraud on the Tribunal in the sense recognised in SZFDE. In that case, the applicants had made a valid application and were dissuaded from going by the fraudulent representations of the former agent, who clearly had a motive for keeping the applicants away from the Tribunal. Here, there was no intention of attending the Tribunal hearing. The entire process was gone through for the purpose of obtaining a visa to allow the applicant to stay in Australia and have permission to work. That was achieved by applying for a protection visa, which involved the applicant obtaining a Bridging visa with a work permit.
The process was certainly dishonest and, if not a fraud, was certainly a scam. It seems hard to accept that the applicant could have believed that a legitimate migration agent would not have an office, but would conduct his business by visiting the applicant at her home or meeting her at suburban railway stations. Again, he had no business cards or letterhead, but dealt entirely in cash, for which he gave no receipt. Even the applicant became suspicious of the “agent” after a while.
This is not a case where the Court should find that there was a fraud on the Tribunal that caused the Tribunal’s function to miscarry.
There is no jurisdictional error. The Tribunal decision is a privative clause decision and the application will be dismissed with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 10 November 2008
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