SZNEY v Minister for Immigration

[2009] FMCA 1016

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEY v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1016

MIGRATION – Review of RRT decision – applicant a citizen of China – where invitation to hearing returned to the Tribunal unopened – where PVA application completed in English despite applicant having no English language proficiency – where applicant assisted in his PVA application by a person who was not noted on the form and who was not contactable at time of hearing – departmental practice in receiving applications considered.

Migration Act 1958 (Cth), ss.426A, 441C

VNNA v Minister for Immigration [2004] FCAFC 134
SZFDE v Ministerfor Immigration [2007] HCA 35
Minister for Immigration v SZLIX [2008] FCAFC 17
SZGZQ v Ministerfor Immigration [2007] FCA 62
Minister for ImmigrationvVSAF of 2003 [2005] FCAFC 73
NAST v Ministerfor Immigration [2004] FCA 86

Applicant: SZNEY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 208 of 2009

Judgment of: Raphael FM

Hearing date: 12 October 2009

Date of Last Submission: 12 October 2009

Delivered at: Sydney

Delivered on: 12 October 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,900.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 208 of 2009

SZNEY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 15 July 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 21 July 2008.  The applicant was invited to an interview by the delegate, which he attended.  On 17 September 2008 the delegate refused to grant a protection visa and on 13 October 2008 the applicant applied for review of that decision from the Refugee Review Tribunal.  On 3 November 2008 the Tribunal wrote to the applicant inviting him to attend an interview with the Tribunal on 4 December 2008.  A copy of the envelope is produced at [CB 56].  It reveals a posting date of 3 November 2008.  On 3 December 2008 the envelope was returned to the Tribunal.  The applicant did not attend the interview.  On 31 December 2008 the Tribunal determined to affirm the decision not to grant a protection visa. 

2. The grounds upon which the applicant claimed to be a person to whom Australia owned protection obligations were found, originally, in a letter to the Department dated 18 July 2008 in which he stated that in 2005 he had opened a restaurant which was successful.  The restaurant was near a police station.  A particular policeman became a regular customer of the restaurant but on occasions he would not pay.  When the applicant argued with the policeman, the policeman threatened him and eventually he was charged with assaulting the police and was imprisoned.  He lost his business and, when he was released, he could not find other employment.  He reopened the restaurant but the policeman involved continued to cause him problems and he had to close it.  It is not entirely clear when that closing took place but the events he talks about appear to be around November 2006 to early 2007. 

3. In the absence of the applicant at the Tribunal hearing, the Tribunal noted that his claims lacked detail and did not appear to be Convention-related. There were no details of when he opened the restaurant after he was released or details of when he closed the restaurant. The Tribunal noted that in its standard letter to the applicant it had been made clear to him that the Tribunal was unable to make a favourable decision on the written information alone but no further information was forthcoming from the applicant, either in writing or by way of his appearance at the Tribunal hearing. The Tribunal proceeded under s.426A having been placed on notice that the hearing invitation had been returned. I am satisfied that the provisions of s.441C(4) were complied with as the date on the letter and the date on the envelope are the same. There is no error in the Tribunal having proceeded under s.426A without taking any further steps to enable the applicant to appear before it; VNNA v Minister for Immigration [2004] FCAFC 134.

4. On 29 January 2009 the applicant filed an application for review of the decision of the Tribunal in this Court.  The Tribunal had told the applicant in its decision that it was unable to be satisfied, as required, that he was a person to whom Australia owed protection obligations:

   “Given the lack of detail, the Tribunal is unable to make findings of fact in relation to the applicant’s claims.  As the Tribunal is unable to make findings of fact in relation to the applicant’s claims, it follows that the Tribunal is unable to find that the applicant has a well-founded fear of persecution for a Convention reason arising from his claims.  The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.” [30] [CB 67]

5. There are two grounds of application.  The first is:

   “I did not receive the letter from RRT for interview.  If RRT did not receive any response for hearing invitation they should send me again or contact me by call.  I did not know when for interview.  Later on Jan 2009 I received the refused letter.  It is not fair.”

6. I have already indicated that I believe the Tribunal acted lawfully in proceeding without a hearing and that the deeming provisions of s.441C were complied with. Before me today the applicant said that the Tribunal should have telephoned him when they received the envelope back because he had always lived at the address he had given and remained there. There is no telephone number indicated in the application to the Tribunal and nor, so far as I can see, is there one indicated in his PVA. There does not seem to me to be any way in which the Tribunal could have taken further steps to ensure that the applicant knew about the hearing.

7. The second ground of application is:

   “RRT should give me a chance for interview.  I had migration agent Ms Xue to help me, but now she is not contactable.”

   This is not the first time I have opined at length about the manner in which applications for PVA and the following processes are considered by the Department.  It is notorious that applicants who come to this Court make complaints about persons they claim are migration agents who have not assisted them in the manner in which they were led to believe they were to be assisted.  Frequently, these “migration agents” are no more than other members of the community from which the applicant might have come who are trying to be of help.  Quite often, they are people who take fees from unsuspecting applicants, who are not registered migration agents and who are of little assistance.  I have previously suggested that the various immigrant communities where this practice is prevalent should realise the harm which is being done and take steps to self-police. 

8. But I have also been critical of the departmental practices.  This is a case in point.  It is quite clear that this gentleman neither speaks nor understands English today.  His knowledge and understanding of the language would have been less on 21 July 2008, when he “filled in” the PVA.  This document has been completed in English.  At question 15 [CB 9], there appears the following:

   “Assistance with this form.

   Did you receive assistance in completing this form?”

   Then underneath that:

   “No - go to question 19.

   Yes - please give details of the person who assisted you.”

   In this case, the applicant has completed the “no” answer and, in response to question 19:

   “All written communications about this application should be sent to:”

   he has said; “myself.”  No authorised recipient or registered migration agent is referred to.  At [CB 11] the document is signed in the Chinese script.  At [CB 14] there appears two addresses:  the first in response to question 14, asking for the applicant’s current residential address.  That gives an address in Auburn which has consistently been the applicant’s address for these purposes from then on until today.  In response to question 17, the applicant is asked for a postal address.  This is given:

   “149/226 Elizabeth Street, Surrey Hills, New South Wales.”

   Any person, from the lowliest clerk at a DIAC office to an observant member of the High Court of Australia, will have noticed from frequent dealings with cases of this nature that the address of Elizabeth Street, Surry Hills, is one that is frequently given by applicants as their postal address, whether they live within a stone’s throw of Surry Hills or, like here, a very substantial train journey.  It would be obvious, I would respectfully suggest, that this gentleman received help in completing his form.  It will be obvious, I would respectfully suggest, that he received help from someone associated with a migration business of some sort.  A letter inviting the applicant to an interview with the Department [CB 33] was addressed to the Surry Hills address, although it was also sent to the applicant at his Auburn address.

9. The criticism which I have of the Department is that, by accepting a form in the manner in which it did, with what I would consider to be constructive knowledge of the fact that the form was completed by someone other than the applicant, who the applicant was not prepared to name but to whose address the applicant required information to be sent, laid the Department open to the type of complaint that has now come before me.  These complaints take up Court time, cause difficulties at the Tribunal and, much more importantly, if true, can possibly prevent an applicant from putting forward the best case he can for Australia’s protection.  The law relating to migration agents is now clear since the decision of the High Court in SZFDE v Ministerfor Immigration [2007] HCA 35 and cases such as Minister for Immigration v SZLIX [2008] FCAFC 17. This is not a case where the applicant can pray in aid an alleged “fraud” of his migration agent.  It is simply a case where he has been let down by someone who he appears to have trusted, who he possibly paid money to and who was not prepared to identify themselves for the purposes of his claims. 

10. The view which I have expressed previously, and which I will continue to express until something is done, is that the Department should not accept applications from people who plainly cannot speak or read English, who sign documents in script other than the Roman script but who claim to have received no assistance in completing a form which they clearly cannot comprehend.  In this particular case, as in most, there was no interpreter’s declaration [CB 12] and it beggars belief that even a counter clerk could have expected this gentleman to have known what he was completing.  No form should be accepted unless it is properly completed, which means that an interpreter’s declaration must be signed where the applicant clearly speaks no English.  Every applicant should be queried upon the declaration concerning help and, where help is received, the helper should be identified by name and address.  The cost to the Department will be minimal, the savings will be great.  Most important of all, frustration and possibly even miscarriage of applications will be avoided. 

11. Although the applicant in this case provided no other ground upon which he claimed the Tribunal had fallen into jurisdictional error, I have considered the Tribunal’s decision in its entirety.  As Greenwood J said in SZGZQ v Ministerfor Immigration [2007] FCA 62 at [13]-[14]:

    It is clear from a consideration of the facts and the approach adopted by the tribunal in reaching its conclusions on those facts that the tribunal has approached the exercise of the review on the footing that the legislation (s65(1)) requires the tribunal to refuse the appellant’s application for a protection visa in circumstances where the tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established.  The tribunal has correctly approached its task by determining that if it is unable to be satisfied of those matters, the tribunal must “refuse to grant the visa.”  (s65(1)(b))

    The approach adopted by the tribunal is entirely consistent with the observation of their Honours in SJSB v Minister for Immigration [2004] FCAFC 255 at [15] for Black CJ, Sundberg and Bennett JJ, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

    See also Minister for Immigration v VSAF of 2003 [2005] FCAFC 73. NAST v Ministerfor Immigration [2004] FCA 86 at [67] per Allsop J.

    In the instant case, the Tribunal was unable to reach the state of satisfaction required because of the failure of the applicant to provide sufficient details of his claims.  There is no jurisdictional error.

12. The application is dismissed.  The applicant must pay the respondent’s costs, which I assess in the sum of $3,900.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  19 October 2009