SZNBK v Minister for Immigration
[2009] FMCA 194
•2 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 194 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of the People’s Republic of China claiming to fear persecution for reasons of her association with Falun Gong members – no jurisdictional error – privative clause decision. PRACTICE & PROCEDURE – Need for Justice of the Peace before whom an affidavit is sworn or affirmed to be satisfied that the person purporting to swear of affirm the affidavit is in fact the deponent. |
| Migration Act 1958 (Cth), s.426A |
| Applicant: | SZNBK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3284 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 March 2009 |
| Date of Last Submission: | 2 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2009 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Ms Buchanan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application dismissed.
Applicant is to pay the First Respondent's costs fixed in the sum of $2750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3284 of 2008
| SZNBK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The Applicant applies to review a decision of the Refugee Review Tribunal which was handed down on 12th November 2008.
The Tribunal affirmed a decision of a delegate of the Minister not to grant her a Protection Visa.
The Applicant claims, in her application, that she was denied procedural fairness in connection with the making of the decision. She claims that it is not reasonable for the Tribunal to point out that she was not a Falun Gong practitioner. She also claims that the member of the Tribunal did not ask proper questions in relation to her claims for a protection visa.
The Applicant did not prepare her application to the Court herself as she does not read or write English. It appears unlikely that she had any input whatsoever into its preparation.
The grounds bear little or no relation to the Tribunal decision. It is clear that the Applicant did not sign the application any more than she signed the affidavit in support. When asked about the signatures on the two Court documents, she denied that they were hers. A comparison with her signature on the application to the Refugee Review Tribunal shows that they are very different signatures indeed.
The background to this matter is that the Applicant arrived in Australia on 16th June 2008. She applied for a Protection (Class XA) visa on
27th June 2008. The basis of her application was that she had been persecuted for having been friendly with certain Falun Gong members who patronised the restaurant which she owned.
The Applicant has told the Court that she was just a beginner in Falun Gong but her involvement with Falun Gong was used as the basis for her application for a visa by a person purporting to be a Migration Agent.
The Applicant's account of all this is depressingly familiar. She told the Court that she obtained the name of a person claiming to be a Migration Agent from a Chinese language newspaper. She said that she knows that person only by the surname of Chen. She went to an address somewhere in China Town and the person drove her elsewhere to a house from where he apparently did business. Quite clearly, some person handwrote an application for a Protection (Class XA) visa which the Applicant signed.
The address given for correspondence was not the Applicant's residential address but an address at 226 Elizabeth Street, Surry Hills, more particularly 211/226 Elizabeth Street, Surry Hills. That is an address or a variation of an address that is well‑known to the Court as it is no more than a mail drop address and the business on the premises appears to be a small supermarket or grocery shop. However, that was the address that the Applicant's application gave to the Department as an address for correspondence.
It is hardly surprising, in the circumstances, that when the Applicant was required to attend an interview with an officer of the Department she did not attend. The Department wrote to her by registered post at the Elizabeth Street address asking her to attend an interview with a departmental officer on 7th August 2008. She did not attend.
The delegate refused the application for a visa and in the decision record expressed a lack of satisfaction with the detail provided in support of the Applicant's claim. The decision record also referred to independent country information and noted that the Applicant was able to depart China without difficulty, which indicated that her profile was not of concern to the Chinese authorities.
The Applicant applied to the Refugee Review Tribunal for a review of that decision. That decision was received by the Tribunal by post on 3rd September 2008. Again the address of 211/226 Elizabeth Street, Surry Hills was given as the address for correspondence.
The Tribunal wrote to the Applicant on 3rd September 2008 acknowledging receipt of the application. The Tribunal wrote again on 17th September inviting the Applicant to attend a hearing on
11th November 2008. That letter was sent by registered post but was returned unclaimed.[1]
[1] See Court book page 61.
The Applicant's letter from the Department acknowledging receipt of the application was also returned unclaimed.
It is hardly surprising that the Applicant did not attend the hearing of the Tribunal on 11th November 2008. The Tribunal by that stage was aware that the letter had been returned unclaimed. The Tribunal members said:
On 28 October 2008 the Tribunal's letter was returned unclaimed to it. She has only provided one address to the Tribunal and has not given it any telephone number at which she might be contacted. She did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. The Tribunal has noted that the applicant failed to attend an interview when invited by the Department. In all 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. [2]
[2] See Court book p.71.
The Tribunal found that the Applicant was a citizen of China on the basis of the Applicant's Chinese passport and her own assertions.
The Tribunal noted that the Applicant's claims were in the form of uncorroborated assertion and that the Applicant had provided very little in the way of detail to flesh out those claims. The Tribunal noted that the Applicant did not provide any further evidence to substantiate her claims and was not satisfied, due to the paucity of information provided that the Applicant had established that she had a well‑founded fear of persecution for a Convention reason.
As is so often the case, where applicants do not attend a hearing of the Tribunal, the Tribunal was not satisfied and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant, in her application, seeks an order in the nature of certiorari setting aside the Tribunal decision, and an order in the nature of mandamus, sending her application back to the Tribunal.
As I said, there were three grounds in the application alleging a denial of procedural fairness, alleging that it was not reasonable for the Tribunal to point out that she was not a Falun Gong practitioner, and claiming that the Tribunal member did not ask proper questions in relation to her claim as for a protection visa.
The Applicant was asked questions about her claims by the Court.
As to the denial of procedural fairness, the Applicant told the Court that the Tribunal received her application without allowing her to appear and just proceeded to make the decision in her absence. That, of course, is not an accurate description of the situation.
The Applicant had acted with the assistance of a person purporting to give migration advice as a Migration Agent and in her application had given an address for correspondence which was no more than a mail drop address, and I am satisfied that the Tribunal did invite the Applicant to attend the hearing but the Applicant did not receive the application; the Applicant did not attend the hearing.
I am not satisfied that any evidence of fraud has been made out. This is not a case of migration fraud, it is a case of an applicant, on her account at least, giving instructions to a person who is highly unlikely to have been a registered Migration Agent and that person has prepared a spurious application to the Department and a pro forma application for review to the Tribunal.
The Applicant signed those documents. I am satisfied she intended to apply for a protection visa. I am satisfied that she intended to apply to the Refugee Review Tribunal for review of the decision refusing her a visa.
The Applicant told the Court that she had not paid this person any money and said she would not pay until after she had been to a Tribunal hearing. In any event, however, it appears that the Applicant had assistance from the same spurious migration advisor in preparing her application for the Court even though it seems that she did not sign it, nor swear the affidavit in support.
The Applicant's first ground, however, does not disclose any jurisdictional error on the part of the Tribunal. The Tribunal only had the one address for the Applicant and it already knew that that address was useless, and in my view it had no alternative but to proceed under s.426A of the Migration Act.
The Applicant, in her second ground, claims that it was not reasonable for the Tribunal to point out that she was not a Falun Gong practitioner. This is no more than taking issue with the merits of the Tribunal decision. It is not a proper ground of review, as Ms Buchanan, who appeared for the Minister, submitted.
The third ground claims that the member of the Tribunal did not ask proper questions in relation to the Applicant's claims for a Protection Visa. The Tribunal did not ask the Applicant any questions because she did not attend the hearing. It is a ground of review that must automatically fail.
I have read through the Tribunal decision independently of the Applicant's claims and I am not able to ascertain any discernible ground of jurisdictional error. It is a matter of concern, however, that there appear to be people who place advertisements in Chinese language newspapers that are readily ascertainable by people newly arrived from China in which these people claim to be Migration Agents. Quite clearly they are not Migration Agents because if they were registered Migration Agents, in preparing an application their name and address would be placed on the application either to the Department or to the Tribunal.
It should not be impossible for the Department of Immigration and Citizenship to conduct an examination of Chinese language newspapers circulating in Sydney by members of the department's staff who read Chinese. There were clearly be a significant number of such people. It would, therefore, be possible to ascertain that people were claiming to offer migration advice and by checking these people's advertisements against the list of current registered Migration Agents, it would be possible to ascertain that some people were advertising their services as Migration Agents when they are not registered Migration Agents and, therefore, are not entitled to do so.
Bearing in mind that citizens of the People's Republic of China constitute a sizable proportion of the people who apply for Protection Visas in this country, a crackdown by the Department on spurious Chinese Migration Agents may well assist in the validity of the migration process, at least so far as Protection Visas are concerned.
It is clear that the Applicant, when she did sign documents, had no idea of the contents of those documents and to my mind appears to be recklessly indifferent as to what is in the documents. As she told the Court in her submissions, all she wanted to do was get to the RRT and that certainly happened with the aid of an application which she signed.
It is a matter of concern also that some person not only prepared but signed an application to the Court and I accept the fact that it does not appear to have been the Applicant. It is also the situation that that person appears to have prepared and either sworn or affirmed an affidavit in the name of the Applicant in the presence of a Justice of the Peace named Peter John Findlay, whose number is given as 136191.
The affidavit is worthless. It is not the affidavit of this Applicant. If it was the affidavit of this Applicant, it would need the appropriate certification on it that it was explained to her.
In my view, Justices of the Peace need to be wary of the identity of people who purport to swear or affirm affidavits in front of them.
In my view, a copy of this decision should be forwarded to the Attorney General's Department of the State of New South Wales so that some inquiries can be made of Mr Findlay as to the circumstances in which he purported to go about his duties in witnessing a spurious affidavit.
The entire documentation in this case represents a regrettable rorting of the system for obtaining protection visas.
In my view, no jurisdictional error has been made out on the part of the Tribunal, and accordingly, the decision is a privative clause decision which is not subject to orders in the nature of certiorari or mandamus.
I propose to dismiss the application.
There is an application for costs on behalf of the First Respondent Minister in the sum of $2750.00. It is appropriate to make that order.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 March 2009
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