SZMWT v Minister for Immigration
[2009] FMCA 254
•2 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWT v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 254 |
| MIGRATION – Review of RRT decision – applicant a citizen of China – Falun Gong practitioner – fraud of migration agent – whether failure of unknown and unregistered migration agent to update applicant on status of application amounted to fraud – where applicant alone received correspondence from department but did not seek to clarify his position. Section 424A information – whether lack of detail in visa application amount to adverse information in the form of omissions – where applicant did not attend Tribunal hearing or provide information further to his application – where Tribunal could not be satisfied of applicant’s claims. Validity of visa application – where signature not properly witnessed – whether substantial compliance – whether request for applicant to re-sign application in front of eligible person a request to provide a “personal identifier” – whether decision made upon invalid application saved by operation of s.69. Recommendations to department – ensuring applicants understand contents of their applications. |
| Migration Act 1958 (Cth), ss.36, 46, 65, 69, 98, 424A Statutory Declaration Act 1959 |
| SZFDE v Minister for Immigration (2007) 81 ALJR 1401; 237 ALR 64 WATI v Minister for Immigration (1996) 71 FCR 103 Minister for Immigration v SZLIX [2008] FCAFC 17 Minister for Immigration v Applicant A125 of 2003 [2007] FCAFC 162 NBKS v Minister for Immigration (2006) 156 FCR 205 SZGSI v Minister for Immigration [2007] FCAFC 110 SZBYR v Minister for Immigration [2007] HCA 26 VAF v Minister for Immigration (2004) 206 ALR 471 SZHWF v Minister for Immigration [2008] FMCA 1136 Bal v Minister for Immigration (2002) 189 ALR 566 SZGJO v Minister for Immigration [2006] FCA 393 NAWZ v Minister for Immigration [2004] FCAFC 199 SZIWV v Minister for Immigration [2007] FCA 1338 Minister for Immigration v WAIK (2003) 79 ALD 152 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 SZMRU v Minister for Immigration [2009] FMCA 87 SZIHI & Ors v Minister for Immigration & Anor [2007] FMCA 1332 SZIJY v Minister for Immigration & Anor [2007] FMCA 1823 D. Pearce and R. Geddes Statutory Interpretation in Australia 6th ed (2006) |
| Applicant: | SZMWT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2795 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 March 2009 |
| Date of Last Submission: | 23 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Shane Prince |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs to be assessed or taxed, if not agreed, at 80% of the Federal Court Scale.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2795 of 2008
| SZMWT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Chinese citizen who arrived in Australia on 3 August 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 13 August 2007. On 9 November 2007 a delegate of the Minister refused to grant a protection visa and on 12 December 2007 an application was made to the Refugee Review Tribunal to review the delegate’s decision. The Tribunal wrote to the applicant at his last known address informing him that it had considered the material before it but was unable to make a favourable decision on that information alone. The letter was dated 8 January 2008 and it invited the applicant to a hearing on 13 February 2008. The applicant did not respond to the letter and he did not attend the hearing. The Tribunal considered the application in the absence of the applicant. On 13 February 2008 the Tribunal determined to affirm the decision under review. The decision was handed down on 4 March 2008.
On a date unknown but believed to be after the delegate’s determination the applicant moved to Perth. In May 2008 he was detained at Perth as an illegal non-resident and moved to the Villawood Detention Centre where he remains today. On 21 August 2008 the applicant applied through the Freedom of Information Act for access to his files and papers including the Tribunal’s decision. Thereafter he filed an application for review of the decision of the Tribunal with this court.
The matter first came before the court for directions on 30 October 2008. It returned before the court on 22 January 2009 when Mr Prince appeared on behalf of the applicant. It was intended that the matter be heard that day. The applicant had prepared an affidavit concerning the circumstances in which his PVA and Tribunal application had come to be filed. Mr Prince proposed to argue that the applicant had been the victim of a fraud upon the Tribunal. The applicant was asked to be present for cross examination. When his cross examination commenced the applicant became tearful, almost hysterical. It was impossible to continue with the cross examination. The matter was adjourned so that some medical reports could be obtained upon the applicant. It was due to come back to court on 22 January 2009 but that directions hearing appears to have been put off until 11 February 2009 when orders relating to the filing of affidavits and written submissions were made. The matter was set down for hearing on 23 March 2009. In the meantime the applicant had filed a further affidavit and two medical reports, one by Dr Alexandra Vrjosseck dated 30 January 2009 and the other by Dr Mark Ryan dated 2 March 2009 were in evidence. At the hearing the respondent confirmed the forensic decision which it had flagged to the court earlier that it did not propose to cross examine the applicant any further upon his earlier or later affidavits. The matter then proceeded before me on the basis of a Further Amended Application filed in court on 23 March 2009.
The Factual Matrix
In his protection visa application the applicant relied upon a statement written in English dated 6 August 2007 [CB 27]. He told how in 2004 he had been introduced to the practice of Falun Gong by a friend who suggested that he try it because it would make him healthy. The applicant took his friend’s advice and started to practice. He found that his health had significantly improved and he was in better spirits. He says that he went to the Falun Gong station for practice with other Falun Gong practitioners and he tried to introduce Falun Gong to many of his friends as well as other people. The statement then describes some of the benefits of Falun Gong but provides no details of the applicant’s actual practice of the exercise or his interpretation of the books. He claims that at the end of 2006 he was warned by his local security office and his home was searched. He was threatened that he would lose his job if he continued to practice:
“My whole family was shocked by it and they encouraged me to go abroad as soon as possible. As the reasons listed above I decided to leave China for my believes (sic).”
In his first affidavit the applicant deposed that when he arrived in Sydney the agency who arranged his travel from China organised for a Mr Qian to pick him up at the airport and find him somewhere to stay. Mr Qian did not appear. The applicant wandered the streets all night. He eventually made contact with Mr Qian by payphone and Mr Qian came and picked him up. Mr Qian introduced the applicant to a “migration agent” called Mr Wang. They met in the street somewhere near the Bank of China in Chinatown. They went to a coffee shop and Mr Wang persuaded the applicant to part with $1,000.00 so that he could prepare a protection visa application. The applicant was asked to sign several blank forms and tell Mr Wang his story and why he could not return to China:
“I received a letter from immigration I think but had no idea what it was about because I do not speak, read or write English. I phoned Mr Wang who told me that the department had received my application and I had been granted work permission. Assuming that was all I had to do I searched for jobs in the Chinese newspaper and found a construction company in Perth who needed labourers. I phoned the company in Perth and they arranged my travel to Perth …”
In his second affidavit the applicant is more detailed in his revelation of his relationship with Mr Wang. He confirmed the essence of the arrangements set out above and says that he recalls speaking to Mr Wang on several occasions after the initial meeting. In regard to the first letter he received from the department the applicant deposes to the following conversation:
“8) On the telephone we had a conversation as follows:
I said:“I have received a document. I cannot read it and I don’t know what it says but it looks important.
Mr Wang said: You need to take the document to a person who speaks English and check to see if work rights have been granted. If work rights have been granted you do not need to worry about anything else.
9) I then took the document to a person who could read some English and speak Mandarin. We had a conversation as follows:
I said:Can you please read this letter for me and tell me if I have been given work rights?
He appeared to read the letter and then said:
Yes it says you are allowed to work.
10) Given the advice I had received from Mr Wang, I believed that I no longer had to worry about my migration status in Australia.”
The applicant stated that in October 2007 he moved address within Auburn. He telephoned Mr Wang and told him about this and Mr Wang said that his tax file number would be sent to that new address. There is found at [CB 34] a letter purportedly from the applicant to the department advising it of the applicant’s change of address. The applicant accepts that this letter was written by Mr Wang following the telephone conversation referred to. The applicant denies that Mr Wang ever gave him advice about a requirement to attend the Refugee Review Tribunal or take any steps to advance his claim for asylum. He assumed that once he had has work rights he needed to do nothing further as that was the advice he had received from Mr Wang.
The third telephone conversation that the applicant had with Mr Wang came after he had moved his address when he received another letter from the department. He says that he asked a student, Mr Liu, to tell him what was happening. Mr Liu told him that it was “bad news”. He then telephoned Mr Wang:
“13) I then called Mr Wang and said:
I have just received another letter from the Department and my flat mate tells me that it is bad news. What should I do?
Mr Wang said: You do not have to worry because as long as you have work rights and a tax file number. I will look after everything else. There is nothing more you need to do.”
I am prepared to draw the inference from this evidence, which inference is not challenged by the parties, that the letter he is referring to is the letter from the department advising the applicant that the delegate had refused his application for a protection visa. The applicant had no further communication with Mr Wang. Mr Wang’s status as a migration agent is unknown. The applicant accepts that the information which he gave to Mr Wang found its way into the PVA and to the statement. He does not cavil with any of the statements of fact made in relation to his PVA. He agrees that he signed a blank PVA form. He denies that it is his signature on the application for review by the Tribunal.
The Delegate and Tribunal Decisions
The delegate decision [CB 37 - 45] includes the following:
“Firstly, the applicant’s claims are vague and lack substantiating detail. For example while the applicant provides a detailed account of general information concerning Falun Gong, such as the manner in which the movement shares its teachings, he gives little information concerning his own personal practice and experience of Falun Gong during the three years he claims to have been an adherent. The applicant states that he was encouraged by a friend to begin practising Falun Gong from 2004 and eventually became an active practitioner at a Falun Gong station, however he does not mention how he initially learnt to perform the exercises – whether his friend assisted him, or whether he learnt by some other means; where and how often he practised; when he began to attend the practice sessions at the Falun Gong station and where it was located; how many other practitioners attended the Falun Gong station; whether the meetings were kept secret and, if so, by what means.
Furthermore, while the applicant states that he was questioned by the leaders at his workplace and warned by the “local security”, presumably officers of the Public Security Bureau (PSB), in relation this practice of Falun Gong, he gives no details about either of these incidents: the exact date these events occurred, how he came to the attention of those at his workplace and the PSB as a Falun Gong practitioner; whether the PSB brought him to their office and, if so, how long he remained there etc. Such a lack of substantiating detail casts doubt on the veracity of the applicant’s claims concerning his involvement in Falun Gong and the consequent adverse attention he drew from the PRC authorities.” …
Summary and Finding:
Having considered all of the above issues – the lack of substantiating detail in the applicant’s claims; the implausibility of major aspects of the claims when considered in the context of country information concerning the situation of Falun Gong practitioners in the PRC; and the applicant’s ability to depart that country legally, using a passport issued in his own name – I am not satisfied as to the overall credibility of the applicant’s claims, and consequently I do not accept them.”
The Tribunal’s decision sets out the applicant’s statement in his PVA. It then sets out the history of the application and the fact that the applicant did not attend for the interview before moving to its findings and reasons, the relevant parts of which are:
“In assessing the applicant’s Convention claims I am required to determine whether he has a well founded fear, and if what he fears amounts to persecution for a Convention reason. The applicant has not provided any further evidence to support his claims. He was informed by the Tribunal that on the evidence to date it was unable to accept his claims. He was offered the opportunity to give evidence and make submissions at a hearing and he did not avail himself of that opportunity.
The delegate’s decision put the applicant on notice as to the deficiencies in his application, yet no further evidence has been received.
There are a number of issues requiring more detailed evidence the Tribunal would like to discuss with the applicant before it could be satisfied that he holds a genuine fear of persecution, or that any fear that he claims to have, in this regard, is well founded.
The applicant claims that because of his practice of Falun Gong he will be persecuted in China. Without the opportunity to question the applicant about his fears, I cannot make findings of fact as to whether the applicant has a well founded fear of persecution in China for any Convention reason.
As I find the applicant has not provided sufficient evidence to support his claims I cannot be satisfied the applicant would have a well founded fear of persecution for a Convention reason should he return to China.” [CB 64]
The Further Amended Application
The grounds upon which the applicant brought his claim for relief in this court are found in the Further Amended Application as follows:
“1.The Tribunal’s decision is attended by jurisdictional error by reason of the fraud of Mr Wang (identified in paragraphs 1-7 above) interfering in the Tribunal’s proper performance of its statutory functions under the Act: SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401.
2.Further and in the alternative, the Tribunal’s decision was attended with jurisdictional error in that it failed to comply with s424A of the Act concerning the following information which was the reason or part of the reason for affirming the decision under review:
PARTICULARS OF INFORMATION
a)While the applicant provides a detailed account of general information concerning Falun Gong, such as the manner in which the movement shares its teachings, he gives little information concerning his own personal practice and experience of Falun Gong during the three years he claims to have been an adherent;
b)The applicant states that he was encouraged by a friend to become an active practitioner at a Falun Gong station, however he does not mention how he initially learnt to perform the exercises –
i)whether his friend assisted him, or whether he learnt by some other means;
ii)where and how often he practiced;
iii)when he began to attend the practice sessions at the Falun Gong station and where it was located;
iv) how many other practitioners attended the Falun Gong station;
v)whether meetings were kept secret and, if so, by what means.
c)The applicant states that he was questioned by the leaders at his workplace and warned by local security … he gives no detail about either of these incidents:
i)the exact date that these events occurred;
ii)how he came to the attention of those at his workplace and the PSB as a Falun Gong practitioner;
iii)whether the PSB brought him to their office and if so how long he remained there.
d)(CB44.4-5)-… the issuance of a PRC Passport to the applicant in February 2007 and his ability to exit the country without any apparent difficult in August 2007 strongly indicate that he had not come to the adverse attention of the authorities as a Falun Gong practitioner.
3.The Tribunal had no jurisdiction in relation to the applicant by reason of the absence of an application before it which complied with s 412 of the Migration Act. [withdrawn at hearing]
4.Further and in the alternative, the document dated 6 August styled protection visa application for the applicant was not a valid visa application for the purposes of s 46 of the Migration Act in that the form was incomplete in that the attestation provisions of the form were not completed.”
The claim for relief emanating from paragraph 4 is not one seeking a declaration of jurisdictional error, rather it seeks a declaration that the PVA was not a valid visa application for the purposes of s.46 of the Migration Act 1958 (the “Act”) and thus the applicant has not had any valid application considered either by a delegate or by a Tribunal. I shall consider each of the three grounds in turn.
The Fraud of Mr Wang Issue
The applicant argues that he received misleading advice from Mr Wang which effectively prevented him from pursuing his claims for protection and from appearing and giving evidence to the Tribunal. The advice received from Mr Wang effectively interfered with the Tribunal’s processes which led the statutory processes to miscarry and led to jurisdictional error; SZFDE v Minister for Immigration (2007) 81 ALJR 1401; 237 ALR 64. The decision in SZFDE commences with an exposition on the nature and effects of fraud in civil claims including a discussion of the oft cited maxim that “fraud unravels everything”. The court then passes to the situation in Australia and in particular to that pertaining to judicial review of the decision of migration tribunals. The court referred with approval to the views expressed by Lindgren J in WATI v Minister for Immigration (1996) 71 FCR 103 saying at [27]:
“The jurisdiction exercised in this case by the Federal Magistrates Court was not founded in the fully amplified system of judicial review laid out in the repealed Part 8 of the Act. Rather it was conferred in terms referable to the conferral on the court by s.75v of the Constitution itself. But that circumstance, given the significance of s.75 for due administration of federal law to which reference has been made earlier in these reasons strengthens the case for its application to the appeal of reasoning akin to that of Lindgren J in WATI.”
The vice complained of in SZFDE was the action of the applicant’s migration agent, Mr Hussain, in telling the applicants not to attend the Tribunal hearing because:
“They are not accepting any visa applications at all at the moment.”
The High Court further accepted that the actions of Mr Hussain were done for the purposes of protecting himself against the possibility of prosecution because he had held himself out falsely to be both a practising solicitor and migration agent. The High Court accepted that French J had:
“Correctly identified the ultimate issue as the effect upon the Tribunal’s decision making process for which the Parliament provided in Part 7 of the Act of the fraud of Mr Hussain.”
Before saying at [51]:
“No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.”
However, it is important to recall and have in the forefront of one’s mind a caveat extended by the High Court at [53] of the decision:
“In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.”
The applicant argues that his case falls within the limited scope of SZFDE. He approached a person who represented to him that he was a migration agent. He was told that if he filled in the form and gave the agent $1,000.00 the agent would “take care of everything”. He appears to have asked only about his work rights and was given advice in relation thereto. He did not understand English and he was never told that he had an opportunity to attend the Tribunal. He also claimed that he was not told about the decision of the delegate.
SZFDE was considered by a Full Bench of the Federal Court, Tamberlin, Finn and Dowsett JJ in Minister for Immigration v SZLIX [2008] FCAFC 17. That was a case in which the applicant claimed that his unknown and unregistered migration agent had not told him about a second hearing scheduled by the Tribunal. At [33] their Honours said:
“The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.”
The fraud alleged by the applicant is the action of the agent, Mr Wang, in not telling the applicant that his application had been refused by the delegate and not advising him of his rights to attend a hearing before the Tribunal or when that hearing might be. These are sins of omission rather than sins of commission as was the advice proffered in SZFDE. The actions of the agent in SZLIX was likewise a sin of omission. I would not go so far as to say that this distinction represents the difference between actionable and non actionable “fraud”. I think it best to look at the activities as a whole and always bear in mind the requirements of proof to the Briginshaw standard incumbent upon applicants. The applicant argues that each time he telephoned his agent he was misled but I am not sure that this is correct. The first time he telephoned the agent was after he received the letter which appears to have indicated that his PVA had been received and he was permitted work. This is what he asked the agent and the agent confirmed it was so. There was no deceit in that response. To the extent that the agent is alleged to have said “your work rights have been granted, you need not worry about anything else”, the agent was also correct, because it is not suggested that any letter sent by the department included a request for a meeting or interview and so the matter was completely in the hands of the department.
The second conversation with Mr Wang was to advise him of the applicant’s change of address. Mr Wang appears to have acted on that advice by sending details of the change of address to the Tribunal so there is no deceit in that. The third conversation with Mr Wang related to what is accepted as a letter advising the applicant that his PVA had been declined by the delegate. The applicant asked someone else to translate the letter. The person did not translate the letter to him but told him it was bad news. The applicant did not request further details of the letter. He telephoned Mr Wang. I can infer from the conversation deposed to by the applicant that Mr Wang was well aware that “bad news” meant that the PVA had been refused. Mr Wang responded that he would look after everything else. Mr Wang did look after everything else. He completed an application for review to the Tribunal. He may have “forged” the applicant’s signature but it is not suggested by the applicant that anything that was put in that application was not in accordance with his instructions. The matter then went to the Tribunal. The applicant knew full well that letters relating to his situation would be sent directly to him and not to Mr Wang. Mr Wang knew full well that his name appeared no where in the application and that he would not expect to get any letters and would not be expected to be advising the applicant of the date of hearings. It is reasonable to assume that Mr Wang expected that when the applicant got notification of a hearing date he would be telephoned. I will make no assumptions as to what Mr Wang said to the applicant thereafter.
There seems to me to be very little evidence that Mr Wang was party to breaches of the Act relating to the giving of advice to the applicant (see Part 3, Division 2 of the Act). I cannot be satisfied that vis a vis the applicant Mr Wang acted fraudulently in the advice which he gave and that this fraud disabled the Tribunal from the due discharge of its imperative statutory functions with respect of the conduct of the review; SZFDE at [51]. If the applicant had been at the address for service that he had given to the Tribunal he would have received the letter. He would have known that there was a hearing and he could have made arrangements to attend. It was his responsibility to keep the Tribunal advised of his address at all times. An application for a protection visa is a very serious matter. It assumes that the person applying is in grave fear of persecution should he or she have to return to their country of origin. They would normally be expected to have some concern for the status and progress of these applications. They could be forgiven for constantly nagging at their advisers or making unwelcome visits to DIAC offices. To place oneself in the hands of a person one has met on one occasion in a coffee shop and handed $1,000.00 is not entirely consistent with these obligations. If an applicant fails to clearly understand the processes through which he is going because he does not ask, he cannot be placed in the same category as a similar person who does his best to understand the processes, who does ask and who is deliberately misled. There was no deliberate misleading of this applicant and thus the ground prayed for cannot be upheld.
The failure to comply with s.424A issue
The court fully accepts that an omission can in certain circumstances constitute information for the purposes of s.424A; Minister for Immigration v Applicant A125 of 2003 [2007] FCAFC 162; NBKS v Minister for Immigration (2006) 156 FCR 205; SZGSI v Minister for Immigration [2007] FCAFC 110. Whilst in SZBYR v Minister for Immigration [2007] HCA 26 the High Court accepted the views of the Full Bench expressed in VAF v Minister for Immigration (2004) 206 ALR 471 that the word information:
“Does not encompass the Tribunal’s subjective appraisals, full processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.”
the current received opinion is that an omission that is treated by a Tribunal as probative support for an assertion detrimental to an applicant’s case would constitute information; SZHWF v Minister for Immigration [2008] FMCA 1136. This view is consistent with that expressed by the High Court in SZBYR at [18]:
“However broadly “information” may be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”
It is the manner in which the omission is utilised by the Tribunal that determines whether or not it constitutes “information” or “thought processes”. In NBKS the Full Bench found that the manner in which the Tribunal used the absence of a statement in a psychologist’s report was not treated merely as a “gap” and did constitute information. Likewise it found that the negative results of internet searches were used to support the Tribunal’s view of the veracity of the applicant and thus constituted information.
In the instant case the Tribunal notes that the applicant had not provided any further evidence than that given to the delegate to support his claim, that he was offered the opportunity to appear but did not do so and that he was put on notice by the delegate’s decision of the deficiencies in his application and yet no further evidence was received. The Tribunal noted that it would have liked to discuss with the applicant a number of issues in order to obtain more detailed evidence before it could be satisfied that he held a genuine fear of persecution. Without the opportunity to question the applicant about these fears it could not make any findings of fact as to whether the applicant had a well founded fear of persecution in China. The applicant takes the view that what the Tribunal did was to incorporate in its decision the views expressed by the delegate concerning the applicant’s lack of information and that this constituted positive evidence that the applicant did not have a well founded fear of persecution for a Convention reasons. I do not accept his submission. My reading of the Tribunal’s decision was that it merely noted the facts arising out of the delegate’s decision before concluding that the evidence submitted to it did not satisfy it that the applicant was a person to whom Australia owed protection obligations. The Tribunal’s obligations set out in ss.36 and 65 of the Act are to grant a visa if it is satisfied and to refuse to grant a visa if it is not satisfied of the required matters. It carried out that duty. It expressed a lack of satisfaction. It gave a reason for that lack of satisfaction. That reason was not the views expressed by the delegate but was the failure of the applicant to provide to the Tribunal more detailed evidence about his fears. There is nothing in the decision of the Tribunal that is based upon “information” whether by omission or otherwise.
The Jurat Issue
At [CB 25] there is a copy of a document entitled “Applicant’s declaration”. It is an important document. It is required to be made in accordance with the Statutory Declarations Act 1959 and is expressed to be subject to the penalties provided by the Act for the making of false statements. It confirms, inter alia, that the information supplied is accurate, that the applicant is not the subject of any criminal charges or investigations and he understands that if he has given false or misleading information the application may be refused or any visa granted cancelled. The applicant gives certain undertakings to the department and allows the department to make enquiries. It is accepted that the document was signed by the applicant. On 14 August 2007 the department wrote to the applicant:
“Dear [applicant]
I am writing to you about your application for a Protection visa received by the Department on 13 August 2007.
As you may recall, you signed your application in front of a person declaring himself/herself to be a Justice of the Peace (JP). However, I am unable to confirm the registration of this person as a JP and the signature does not meet with legal requirements.
Please contact me on 02 9032 4594 to arrange a suitable time for you to attend this office and sign your application again. I will witness your signature at this time as I am qualified to do so.
You will receive a separate letter acknowledging the receipt of your Protection visa application.
Yours sincerely
Anica Zhang
Department of Immigration and Citizenship
14 August 2007”The court was advised that the applicant did not attend the department and the application form was not re-signed and witnessed by the departmental officer or another person entitled to witness the document under the Statutory Declarations Act. The applicant argues that as a consequence of this failure to complete the jurat the application is invalid and therefore the review by the Tribunal was a nullity and the applicant is able to file a new application with new prospects of review should it be unsuccessful.
The validity of a visa is dealt with in s.46 of the Act, the relevant sections of which are as follows:
“Valid visa application
(1) Subject to subsections (1A), (2) and (2A), 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 it satisfies the criteria and requirements prescribed under this section; and
…
(2) Subject to subsection (2A), 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
(2A)An application for a visa is invalid if:
(a)prescribed circumstances exist; and
(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab) the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and
(b) the applicant has not complied with the requirement.
Note:An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
(2AA) An officer must not require, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier other than:
(a) if the person is an applicant for a protection visa--any of the following (including any of the following in digital form):
(i) …
(ii) …
(iii) …
(iv) …
(v) the person's signature;
(vi) …
(vii) …
Section 46 of the Act comes within sub-division AA of Division 3 of the Act. There are other relevant sections.
Section 47:
“(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”
Reg 2.07:
“(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.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.”
Section 65:
“(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note:See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.
(2)To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”
Section 69:
“(1)Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
(2)If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.”
Section 98:
“A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.”
Regulation 2.07 only requires substantial compliance with the directions in form 866 not strict compliance; Bal v Minister for Immigration (2002) 189 ALR 566; SZGJO v Minister for Immigration [2006] FCA 393. In NAWZ v Minister for Immigration [2004] FCAFC 199 at [16] the Full Bench, Finn, Mansfield and Stone JJ dealing with an application which was substantially false in its contents and carried two false declarations signed by a person who was in reality the appellant’s alter ego, being a false application, was “in formal terms, a valid application”. At [17] the court said:
“We do not consider that the requirement in regulation 2.07 that the approved form 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 cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 390 – 391.”
SZIWV v Minister for Immigration [2007] FCA 1338 was a case in which the facts are substantially similar to those presently before the court. The applicant had signed a blank application and there were doubts about the validity of the jurat. At [19] the court sets out the findings of the Federal Magistrate which it was considering on appeal:
“The Federal Magistrate held that the appellant signed the statutory declaration although she was not aware she was signing a statutory declaration. He found that she did not read or speak English and that the statutory declaration was not translated to her. The Federal Magistrate held that as the appellant had an agent who was authorised to act for her at the time the form was completed and lodged, and that the appellant signed the form in three different places, there was substantial compliance, notwithstanding any deficiencies in the completion of the statutory declaration (cf NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199). In addition, he held that Parliament could not have intended such strict compliance, that the deficiencies noted in the statutory declaration would invalidate the application. He found the protection visa application to be valid. There was, therefore, no jurisdictional error.”
At [25] the court noted:
“the appellant’s case before the Federal Magistrate was that her protection visa application was no application because it did not comply with Form 866 and because the statutory declaration was signed before the protection visa application was completed. The Federal Magistrate has found that she did sign the document but could not and did not read it, and it was not translated to her. However, no finding has been made as to what the form contained when she signed it. No finding has been made whether the statutory declaration was taken before an authorised person.”
The court noted that as occurred in the instant case
“there is no suggestion that the final application submitted to the delegate contained other than the substance of the appellant’s complaints. This is also not a case like SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, where the appellant was advised of the hearing and advised not to attend. Although she said she did not receive the invitation to hearing, the evidence was that it was sent to both her agent and herself. The letter sent to her was not returned.
[28] The only question in this case is whether the signing of the blank application means that the application was invalid.
[29] Section 47(1) of the relevant Act requires the Minister to consider a valid application for a visa. Section 47(3) precludes the Minister from considering an application that is not a valid application. Section 65 requires the Minister, after considering a valid application for a visa, to grant the visa (s 65(1)(a)) or refuse to grant the visa (s 65(1)(b)). Section 46 addresses the requirements for a valid application for a visa. Regulation 2.07(3) of the Regulations provides that an applicant must complete an approved form in accordance with any directions on the form. The prescribed form for a Protection (Class XA) visa is Form 866. That form provides for a statutory declaration to be completed by the applicant.”
The court found that the provisions of s.98 meant that the application must be taken to have been filled in by the applicant and concluded that the application was not invalid. At [34] Lander J makes certain remarks concerning s.69 which are of more relevance in the second limb of this issue. I am satisfied that the lack of jurat does not invalidate this application because it was substantially completed. But if I am wrong about that the application is still a valid decision for the reasons given below.
The Jurat issue – the department’s letter
The applicant argues that the letter from the department to him was effectively a request by the department for him to provide a personal identifier in relation to the application. He says that the personal identifier is his signature. He was required to come into the department and resign the document so that the jurat could be properly completed. The jurat was a way of identifying him as the signatory. He further argued that as the applicant did not comply with that requirement the visa application is invalid. The respondent argues firstly that the letter is not such a requirement, it is a requirement to ensure, not that the applicant is properly identified, but that the jurat is signed. The application form is substantially complied with without the jurat and the application is valid. It further argues that in any event the provisions of s.69 would apply and that would have the effect of validating the decision even though the application itself may have been invalid. The applicant responds there is a tension between s.46(2A) and s.69, that s.46(2A) was inserted into the Act after s.69 and that s.69 was never intended to overrule a specific invalidation referred to in the legislation. In other words, while s.69 would be sufficient to override a failure to comply with s.46(1) it is not sufficient to override the specific invalidation contained in 46(2A).
Thus the first question to be answered is whether the letter is a request for a personal identifier. I am of the view that the letter of 14 August 2007 is a request for a personal identifier. The letter asked the applicant to arrange a suitable time for him to attend the DIAC office and sign your application again (emphasis added). The signature is a personal identifier of the type set out in s.46(2AA). Subsections 46(2AB) and (2AC) are relevant.
“(2AB)In requiring, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (2AC)(b).
(2AC) The regulations:
(a) may prescribe other types of personal identifiers; and
(b) may provide that a particular personal identifier referred to in subsection (2AA), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.”
It does not appear that any regulations have been made for the purposes of s.46(2AC)(b). In those circumstances the department was justified in requiring the applicant to provide a personal identifier; a signature was a statutorily acceptable identifier and the applicant was required to provide a signature. He did not provide his signature. Under regulation 2.08AB the prescribed circumstances are:
“For paragraph 46(2A) (a) of the Act, the circumstance is that the application is for a visa that is not:
(a) a bridging visa; or
(b) a Witness Protection (Trafficking) (Permanent) (Class DH) visa; or
(c) a Witness Protection (Trafficking) (Temporary) (Class UM) visa.
NoteSection 46 of the Act sets out the conditions for a valid visa application. Subsection 46 (2A) provides that a visa application is invalid in prescribed circumstances, if the other conditions mentioned in that subsection also apply.”
The visa was not for one of those circumstances set out in subsections (a), (b) or (c) of the regulation therefore the prescribed circumstance existed. There is no evidence that the Minister had waived the operation of the subsection in relation to the application for the visa and as the applicant had not complied with the requirement the application was invalid.
Having found invalidity the next question that must be answered is whether or not s.69 applies. In SZIWV Lander J quoted from the judgment of the Full Court in Minister for Immigration v WAIK (2003) 79 ALD 152 where the Bench, Tamberlin, Nicholson, Emmett JJ, said at [29] – [31]:
“However, s 69(1) is explicit so far as the requirements of subdiv AA and subdiv AB are concerned. In the light of s 69, it cannot be said that the application for a protection visa signed by the Applicant was a nullity simply because he did not complete it in accordance with the directions contained on it. No suggestion was made on behalf of the Applicant that he did not understand the nature of the application or that he did not have the capacity, even if he was under 18, to make an application for a protection visa. The only contention was that, because the application form was not completed in accordance with the directions contained on it, it was not a valid application by reason of the operation of reg 2.07(3) and that, accordingly, the Minister was prohibited, by s 47(2), from considering the application since it was not a valid application.
If an application that is not a valid application for the purposes of s 46 is considered pursuant to s 65, the resultant decision is preserved by s 69. The decision of the Minister’s delegate purporting to reject the application is a valid decision, even if it involved a contravention of s 47, because the decision was rendered valid by the operation of s 69(1): see Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297 at 33 [26] and Soondur v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 578 at 593 [49].
The Tribunal had jurisdiction to review the decision of the Minister’s delegate under s 411(1)(c) because it was a decision to refuse to grant a protection visa. The fact that the Minister was prohibited by s 47(2) from considering the application, assuming that it was not a valid application, does not mean there was no decision within the meaning of s 411(1)(c). Whether or not the Minister was prohibited from considering the application, the Minister’s delegate did so and made a decision to refuse a protection visa. There was no jurisdictional error on the part of the Tribunal even if the Applicant was under 18 and the application was not a valid application within the meaning of s 46 of the Act.”
Lander J opined that that decision was both on point and binding.
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 McHugh, Gummow, Kirby and Hayne JJ discussed statutory construction in the following terms:
“A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.” [70]
If, however, it is not possible to reconcile two sections in an Act, it is a rule of statutory interpretation that the later section prevails over the earlier. (See Pearce and Geddes Statutory Interpretation in Australia 6th edition paras 7.18 and 4.30). As has been said, s.46 (2A) was inserted into the Act after s.69. Therefore, in the event of any inconsistency between the sections, s.46 (2A) would prevail.
It is not clear that an inconsistency does exist. Section 46 describes the circumstances in which an application for a visa will either be valid or invalid. The section does not make any statements as to the effect of the invalidity. This is to be ascertained by reference to other sections including s.69. That section makes it clear that if an application that is not a valid application for the purposes of s.46 is considered pursuant to s.65, the resultant decision is preserved; SZIWV. However, the applicant claims that s.69 was never intended to overrule a specific invalidation like that expressed in s.46 (2A), though he has not demonstrated why that distinction ought to be drawn. In considering the effect of a decision by the Minister upon an invalid application there is no logical reason to distinguish between an application which does not meet the criteria for “validity” and an application which meets some specific criteria for “invalidity”. The resulting invalidity is the same in both cases.
It is useful to consider the purpose of s.46. The note to the subsection (2A) hints at the intention of the legislature. It says “An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3)”. This indicates that the concern of the legislature in drafting s.46 and later inserting subsection (2A) was to delimit the obligations of the Minister in considering invalid applications. There is nothing to indicate that anything more was intended and indeed s.69 makes it clear that the sections on invalid applications were not intended to affect any decision of the Minister.
In these circumstances I am unable to accept the applicant’s submissions and would hold that whilst the application was invalid the Minister’s delegate’s decision upon it was valid and was capable of being reviewed by the RRT. It follows from the above that the applicant has not succeeded in his claim. The application is dismissed. The applicant is to pay the respondent’s costs which, as the matter has been before the court on several occasions, should be assessed or taxed if not agreed at 80% of the Federal Court Scale.
I cannot leave this judgment without expressing the concern that I have previously expressed in other decisions; SZMRU v Minister for Immigration [2009] FMCA 87; SZIHI & Ors v Minister for Immigration [2007] FMCA 1332; SZIJY v Minister for Immigration [2007] FMCA 1823, about the practices apparently adopted by DIAC in relation to the completion of application forms. I hold the strong view that if appropriate measures were taken in relation to application forms many of the “grounds of application” that are seen in this court and considered on appeal by the Federal Court would not be available even to be made. The forms that are to be completed are in English. This is understandable although, of course, most of the people who complete the forms do not speak English. Many of them cannot write and certainly cannot write in English. The department clearly recognises these difficulties because at question 15 the form asks:
“Did you receive assistance in completing this form?”
If the answer is yes, details of that person are required to be provided. There is then a question about migration agents and whether the applicant’s migration agent is registered with MARA. Question 15 is invariably answered in the negative. Therefore, there is no necessity for question 16 to be responded to. At 29 of the form there is the following:
“If an interpreter was used in the preparation of this application, the interpreter must complete this declaration.”
There follows a perfectly reasonable declaration for an interpreter to make and a requirement that the interpreter gives some personal details of his name and address. This part of the form is also invariably not completed. The form is then signed by an applicant. If the applicant is from a country whose alphabet is not the Roman or Latin alphabet used in this country, they would sign the form in their own script. This would seem to me to be a clear indication that the person who has completed the form does not understand English and in all probability completed the form with the aid of a “friend”. The department’s suspicions on this subject could be confirmed by the invariable completion of the request for an interpreter, which is also contained in the form.
Given the above information, it would not seem to be a particularly onerous task to require the officer receiving the application to check it at the time so as to ensure that the applicant indeed does, as he has acknowledged in the declaration which he signed, understand the form and the claims made. If, as the court understands is a common practice, a person other than the applicant submits the form, then the department should decline to receive it on the grounds that it cannot be satisfied that it has been properly completed where there is a denial of help, no interpreter, no interpreter’s certificate and a request for an interpreter at any hearing. If DIAC, in this way, ensure that applications are actually made by applicants and have been properly translated to them, claims such as the one that appeared in this case, in the others that I have referred to, in many to come before my colleagues and those that are required to go on appeal could not be brought on those grounds.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 2 April 2009
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