SZNFY and SZNFZ v Minister for Immigration
[2009] FMCA 1024
•22 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFY & SZNFZ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1024 |
| MIGRATION – Review of RRT decision – where applicants sought declarations that protection visa applications not barred by s.48A – where applicants claimed they had separately paid persons to fill in their original applications believing they were applying for temporary residence or work visas – where applicants claimed they had never lived at addresses provided in applications and did not sign any forms – whether evidence indicated that applicants totally unaware that PVAs had been made on their behalf. Practice of Department in receiving applications from people who clearly cannot read or write in English but deny any assistance in filling out form considered. |
| Migration Act 1958 (Cth), ss.45, 46, 48A, 98, 476 |
| NAWZ v Minister for Immigration [2004] FCA 160 BAL v Minister for Immigration [2002] FCAFC 198 SZGJO v Minister for Immigration [2006] FCA 393 Zhang v Minister for Immigration [2005] FCA 1706 |
| Applicant: | SZNFY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 325 of 2009 |
| Applicant: | SZNFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 326 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 October 2009 |
| Date of Last Submission: | 15 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $5,850.00 in total.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 325 of 2009
| SZNFY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
SYG 326 of 2009
| SZNFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These two applications were heard together. They both seek a declaration that the application for a protection visa lodged on behalf of SZNFY on 14 January 2009 and on behalf of SZNFZ on 20 January 2009 is not barred by s.48 of the Migration Act 1958 (the “Act”). The reference to the section in the application should read s.48A and in the case of SZNFZ the date of the application should read 20 January 2009 and not 14 January 2009.
The applicants and hence their applications share some common characteristics which will be discussed in more detail below. They were represented by the same legal advisors at hearing before me where they both gave evidence. The submissions made by their counsel as to how the relevant sections of the Act applied to them were identical. The respondent did not contest that this court had jurisdiction to hear the application pursuant to s.476 of the Act and that the court’s jurisdiction in these cases is not limited by the provisions of s.476(4).
The gravamen of the applicant’s case was that they were entitled to lodge the protection visa applications which they did because the previous protection visa applications which they had lodged and which were the subject of an unsuccessful merits review from the Refugee Review Tribunal, were not valid visa applications as required by ss.45 and 46 of the Act because the applicants could not be taken to have completed the relevant application forms by virtue of s.98 of the Act. In order to come to a view on these submissions it was necessary for the court to hear evidence and determine the facts surrounding the original PVAs.
History
SZNFZ (“Mr Z”)
Mr Z claims to be a national of the Peoples Republic of China. He claims he is of Korean ethnicity who lived in a Chinese province very close to the North Korean border. He speaks and reads Korean and Mandarin. In 1999 he travelled to Australia on a Korean passport in the name of DSL. He claims to have purchased this passport. In his affidavit sworn on 22 June 2009 he states that he came to Australia on a visitor’s visa and that when he arrived he knew nobody. He did not know about the possibility of refugee applications. He said that he found a job from a Korean language newspaper and about a month after he arrived he telephoned a Korean speaking migration agent. The agent asked him whether he had any documentation and he had a vague recollection of telling the agent that he did not. The agent told him he had no chance of residency in Australia. Around that time the applicant said that he met a man named “Lee” in a club in Campsie. They struck up a conversation in Mandarin. Mr Z did not tell Mr Lee that he was a Chinese citizen but introduced himself in the name in which he had arrived in Australia in the South Korean passport. He says that he met Mr Lee at Campsie a few times and eventually told him he was Chinese. They discussed the immigration department’s policy of detaining people and returning them overseas. He told Mr Lee that he did not have a visa. Mr Lee said to him words to the effect:
“I can get you a visa for three to six months, it will cost you $300.00”
The applicant said:
“I do not have that much money.”
And then Mr Lee said:
“I will do it for $200.00.”
The applicant says that he believed Mr Lee would get him a temporary visa and so he gave him the $200.00 and some passport photos and a copy of his South Korean passport and says that Mr Lee did not ask for any details about himself, did not show him or give him any forms, did not give him a business card or receipt or tell the applicant his address. The applicant and Mr Lee met twice more in the park and on one occasion Mr Lee said to him:
“Okay you have a visa.”
Shortly after that he went to work in a place north of Newcastle and lost contact with Mr Lee. The applicant stated that he had no knowledge of the visa application, did not sign anything and was not aware that the application that had been made was one for a TPV. He did not know that the application was refused or that an application for merits review had been made to the Refugee Review Tribunal. He did not know that he had been invited to a hearing by the Tribunal or that the Tribunal had affirmed the decision under review.
In 2007 the applicant obtained Chinese travel documents, having received a Chinese identity document from his family in China. These two documents are Exhibits “1” and “2”. In 2008 Mr Z was detained as an illegal non resident. Upon his release from detention he sought advice from his current advisors who made the second application for a protection visa on his behalf.
Mr Z told that in 2002 he met applicant SZNFY (“Ms Y”) at a sushi bar where she worked. They became friends and are now living together as partners. They moved in together about a year after they had met and they first spoke about visa status some time after they had met.
Mr Z claimed that he lived in several addresses in Sydney but that he had never lived at the address in Beamish St Campsie that appeared in his first PVA and to which documentation in relation to his application and its review was sent.
SZNFY (“Ms Y”)
Ms Y claims to be a citizen of the PRC and was also born and brought up in a province of that state bordering upon North Korea where she lived in the Korean ethnic zone. She speaks both Korean and Mandarin. She arrived in Australia on 13 March 2002 on a South Korean passport in the name of EJK. She says this is not her real name and she is not a South Korean citizen. She said that her husband in China arranged for the passport to be purchased. She left China because of her religious beliefs. She says that whilst her husband does not know about her relationship with Mr Z she is still in contact with him. She said that her intention in leaving China was to escape. She was not sure what she would do when she arrived in Australia. She was taken to Campsie and lived in different addresses in Campsie ever since. She found a job making sushi from an advertisement in a Korean language newspaper and soon after arriving she spoke with another Korean speaking woman with whom she worked. This woman offered to obtain a work visa for her. She did not say how she could do this and the applicant did not ask her. Ms Y gave the other woman $450.00. She was not shown a form nor given a receipt. She was told to carry on working and because the applicant trusted the woman she believed she had obtained that visa, although she admitted to being concerned after the woman was herself detained and deported.
Ms Y met Mr Z in the sushi bar after she had been in the country approximately a month. They moved in together after about a year and in 2007 she applied to the PRC authorities in Sydney for travel documents. She too had her Chinese identity cards sent from home and she applied for her Chinese passport at the same time as Mr Z. Ms Y claims to have had no knowledge of the PVA, she did not sign it, she was not aware of what it contained, she was not aware that it had been refused and she was not aware that an application for merits review had been made to the RRT or that this review had confirmed the decision. She was also detained in 2008 as an illegal non resident and upon her release went with Mr Z to her current legal advisors who made the application on her behalf.
Testing the evidence
SZNFZ
The court book contains copies of Mr Z’s PVA forms, his South Korean passport, a statement in support of his application, the application to the RRT and the RRT decision as well as the most recent PVA and the Department’s decision letter upon that dated 22 January 2009 [CB 101].
Under cross examination Mr Z stated that he did not have the original South Korean passport, it had gone missing, but he admitted that he had signed the passport shortly before his arrival in Australia. The signature is found at [CB 26]. He said that he could not obtain a Chinese passport because he had problems in China because of his religion. He knew he needed to obtain a visa to travel to Australia and so he was prepared to buy a false passport in order to assist him in getting this. He said that he did not decide to leave China permanently but only decided to stay in Australia after he had arrived. He knew that the type of visa that was issued with the South Korean passport was not enough to allow him to stay permanently and he had to do other things in order to remain here. Mr Z confirmed that Mr Lee had told him that he could get him a visa for three to six months and that he knew after that time something more would have to be done otherwise he would be in Australia illegally. Mr Z wanted Mr Lee to obtain for him any visa that would allow him to stay in Australia. He was aware that a lot of people were being caught by the immigration department and returned to their countries of origin. He said that Mr Lee told him about two weeks after he had given him the money, the passport and the photographs that he had obtained a visa for him.
Counsel for the Minister asked Mr Z whether he had ever lived in Beamish St Campsie. He said that he had never done so, (a matter that he had also stated in his affidavit). Counsel pointed out to him the series of addresses in Australia that he had caused his solicitor to complete in the second PVA [CB 75]. This indicates that the applicant lived in Beamish St Campsie from April 1999 to October 1999, the period during which the protection visa application was being considered. Mr Z told the court that he did not actually live in Beamish St, he lived in street nearby, the name of which he could not remember. He denied giving an address in Beamish St to Mr Lee.
Counsel then referred Mr Z to the document headed “Statement in support of my application for a refugee status in Australia”
[CB 25 – 26]. Mr Z had no knowledge of this document. Counsel then asked him to look at a document which appeared at [CB 35] in the court book of SZNFY. She had the first paragraphs of each translated. They are identical, save the names. She asked Mr Z if he could explain why these documents would be identical given that on his evidence and that of Ms Y they were submitted as part of PVAs by entirely independent persons, some three years apart. The applicant was unable to provide an explanation. In fact, as was pointed out to the applicant, the whole of the first paragraph, the extract from the convention and the first sixteen lines of the statement are identical in both cases. The final two paragraphs of the statements are also identical save in Mr Z’s statement there is reference to Thailand and China and in Ms Y’s statement there is reference to Malaysia. The similarities between the two documents extend to spelling and grammar. There is reference to:
“The separation of the two korea.”
Both statements make reference to the economy in North Korea and stated:
“In some places, it was said that “people eat people happened”.”
After the cross examination had concluded I drew Mr Z’s attention to the signature which appeared in his passport at [CB 26] and the signature which appeared in the PVA at [CB 10]. The applicant admitted that they were similar as was the signature at [CB 23].
Mr Z was cross examined about his relationship with Ms Y. He said that after they had moved in together they lived at Ninth Ave Campsie. It was pointed out to him that this address did not appear in the list of addresses found at [CB 75]. He then said they only lived there for a short time. Mr Z said he did not know what visa Ms Y had, he knew that she was in Australia illegally, although not at first. He knew that after about a year after he had met her. Mr Z was asked whether he had assisted Ms Y by providing her with a copy of the statement that he had made in support of his own PVA for her to use in her application. He denied this.
SZNFY
Ms Y was cross examined and told that she did not discuss getting a visa with Mr Y when she first met him. She said that her husband had bought her the passport in China and she had signed it. She said that she had been told by the lady at her workplace that she had to apply for a visa within forty-five days of arrival. She knew that she needed a work visa and that she did not have one. Ms Y said that she did not ask her friend about the visas but was told that the friend would find her a visa for work. Ms Y accepted the assistance from this workmate because she did not know anyone else who spoke Korean. She said that she paid $450.00 for the visa and she did not ask what the money was for, all she was interested in was that the visa would assist her to work. Both Ms Y and Mr Z said that the people they were referring to had not themselves obtained the visas but had got someone else to do it for them so far as they were aware. Ms Y had not decided that she wished to remain in Australia when she first arrived. She just wanted to work so she didn’t tell her friend how long she wanted the visa for, her friend said she could get her one for six months. After the six months had expired she made no effort to apply to the Department to renew the visa. She did not realise she was an illegal non resident until she was detained.
Ms Y was also shown to the two statements and was unable to explain the similarities between them. She denied that Mr Z had helped her by providing her with a copy of his statement.
Discussion
The applicants accept that if I am not satisfied on the balance of probabilities that they were totally unaware that PVAs had been made on their behalf then their argument about the validity of the second application must fail. In submissions Mr Karp suggested that both his clients were the victims of a migration scam and that this would explain the similarities between their applications. Whilst I accept that immigration scams are a real problem, particularly amongst members of South East Asian communities and that the stories told individually by Mr Z and Ms Y are not so implausible as to be dismissed without full consideration, I am unable to be satisfied on the present facts of their claims to be have been unaware of the making of PVAs on their behalf.
I could not be satisfied that the signature of Mr Z which appears on his passport and again on the PVA are so different as to give rise to an inference that they were signed by different people. I found the evidence Mr Z gave about his residence in Campsie to be unconvincing. I think that he told the truth when he had put into the second PVA that he had lived in Beamish St. His explanations, once he became aware that this was going to cause him a problem, had the hallmarks of recent invention. He did not claim to know where Mr Lee lived. There can be no doubt that the decision on the PVA was received at the address in Beamish St to which it was sent because otherwise there could have been no application for review from the Tribunal. The reference numbers on the letter is repeated in the application for review. I find it difficult to accept that Mr Z took no interest whatsoever in the type of visa Mr Lee was obtaining for him, even to the extent of not appearing to be interested in whether it allowed him to work or not.
I am of the view that Mr Z knew perfectly well that a PVA had been made on his behalf because I find implausible the suggestion that the statement of Ms Y would be so similar to that of Mr Z’s three years later because they coincidentally went to the same migration scam artist. Mr Karp says that all such a person needed was copies of an applicant’s passport, some photographs, a computer and a vivid imagination. That may well be so but if the person had such a vivid imagination he would have been unlikely to have repeated the same story three years later as part of Ms Y’s PVA. If placed on the scales of probabilities the story of a coincidental association with the same scammer after three years would, to my mind, be outbalanced by the probability that Mr Z used the template of his own application to assist his new friend.
I am also unable to be satisfied on the balance of probabilities that Ms Y was unaware that the visa she was applying for was a PVA. For the reasons given above I believe it is more probable that she was assisted in making her application by Mr Z and that she knew what the application was. I am unable to accept their alternative theory of a coincidental scam. This was not a submission made originally by either of them. It was raised only to deal with the compelling evidence of the similarities between the applications. When one recalls that both applicants claimed to be Chinese nationals of Korean ethnicity, both claimed to be persecuted Christians, both claimed to have met complete strangers into whose hands they entrusted their applications to remain in Australia, the fact of their meeting and becoming partners and living together, their similar claims about incorrect addresses being placed on the applications, the fact that notwithstanding both of them were told that the visas that were being applied for would only last for a few months they did nothing in the lengthy interim period about regularising their position and the fact that they both applied for Chinese travel documents in 2007 the possibility of a coincidence of them being the helpless victims of the same scam becomes more and more unlikely.
Decision
As the applicants have not satisfied me that they were ignorant of the PVAs made on their behalf it is not necessary for me to consider the submissions made by them that s.98 requires the identification of the application that an applicant is taken to have completed. They argued that neither applicant knew about protection visas and they only authorised the completion of application forms for temporary residence or work visas. Mr Karp sought to distinguish the instant case from a series of authorities which would appear to make his argument very difficult. In NAWZ v Minister for Immigration [2004] FCA 160 an applicant who claimed to be Pakistani met a migration agent who agreed to lodge a PVA for him on the basis that he was an Afghan. The applicant claimed not to have received any information about this application from DIAC but had been told by the agent that he was “legal”. The applicant made some enquiries, discovered what had happened and lodged another application in his correct name and with what he claimed were the correct particulars. That second application was not accepted because of the provisions of s.48A. The applicant applied to the court seeking a declaration that the first application was not an application that was made by the applicant. At [18] Wilcox J opined:
“Mr Lloyd cross-examined the applicant. He also called Mr Dehsabzi to give evidence. Having reviewed the whole of the evidence, written and oral, I have come to the conclusion that the Waisi application was lodged by Mr Dehsabzi on behalf of the applicant, and with his knowledge and consent. Consequently, the applicant ‘made’ the Waisi application, within the meaning of s 48A(1) of the Act.”
And at [28]:
“The Waisi application was not made in the true name of the applicant. However, once it is concluded that it was made on his behalf and with his knowledge and consent, the application must be regarded as having been ‘made’ by him. Section 48A(1) applies to it.”
Although I think that the instant cases are on all fours with NAWZ and for that reason I am unable to provide the applicants with the declarations they seek, Mr Karp argues that if I am wrong NAWZ is limited to a case where there was a specific authorisation. He says that the same applies to BAL v Minister for Immigration [2002] FCAFC 198 at [41] and [42] and draws comfort from SZGJO v Minister for Immigration [2006] FCA 393 at [16]:
“The appellant authorised and caused his migration agent to fill in the visa application form on his behalf. While he did not specifically authorise the inclusion of incorrect or incomplete information as in NAWZ s.98 applies. Section 98 does not require a covert purpose to mislead. The Federal Magistrate was not in error in finding that, in the circumstances the visa application was valid.”
He submits that this dicta does not exclude invalidity where there was no authority to complete a form for a particular visa.
Mr Karp also refers to Zhang v Minister for Immigration [2005] FCA 1706 and points out this is another case where at [14 – 16] there was a specific finding that the applicant had authorised the completion of a form for the type of visa she later renounced. He argued that if this did not in itself indicate a requirement for a specific authorisation it could be distinguished from cases such as the instant one where no specific authorisation was given.
The Minister sought to avoid meeting this argument head on by submitting that if the court was not prepared to accept that the applicants had knowledge of the PVAs then the facts bore out an authority to their agents to complete any application that would allow them to remain within Australia. Whilst I think there is some merit in Mr Karp’s argument in the abstract, the findings of fact in this case are so clearly against him that I believe that they should be made another day under different circumstances.
I would make orders dismissing the applications and requiring the applicants to be jointly and severally liable for the first respondent’s costs assessed in the sum of $5,850.00 in total.
An incidental and important matter
This is another case in which applicants have made complaints about persons who have assisted them in their migration applications. These cases follow a familiar pattern. The applicants speak no English. He or she reads no English. He or she comes from a country where the script utilised in their country of origin is not the Roman script. Forms are completed utilising the Roman script and a signature in their native script appears. Invariably there is no interpreter’s declaration and no reference to assistance from a migration agent or another person. The application is received at the DIAC office and accepted. The applications generally contain a statement of some sort or another written in the Roman script. After the applicant has had his or her application declined by the delegate and that decision upheld by a Tribunal he or she complains to this court that he or she was let down by his or her migration agent who did not put the true facts in the forms. In SZNFY the form is filled out in the Roman script. The applicant signed a declaration in the Korean script [CB 9]. The interpreter’s declaration is blank [CB 10]. Another declaration is signed by her in the Korean script and witnessed by a JP with a signature that consists of two lines [CB 23]. There is then the statement in support of the application which is typed. At [CB 12] a postal address for the applicant is given in Pitt St Sydney 2000 although she claims she lives in Campsie. At [CB 11] in response to question 10 “Which languages do you speak, read or write (including English?)” she has completed in the Roman script “Korean”. There is no reference to English.
In SZNFZ the application is similarly completed in the Roman script and the applicant’s signature appears in the same script and in response to the question “Which languages do you speak, read or write” the answer is only “Korean”. The interpreter’s declaration is left blank. Since the time these forms were completed the forms have changed slightly to include questions about assistance. Those questions are, as I have said, are generally answered in the negative.
It does not seem to me to be too difficult to require persons lodging applications on their own behalf to produce identification and for the counter clerk to ensure that the applications are completed. This would include enquiring when an applicant clearly does not speak English, why the interpreter’s declaration has not been filled in. I anticipate a cry that this would require the Department to have interpreters on hand. I understand that they do, but if they do not the answer is simple – if a person cannot speak enough English to understand the questions put by the counter clerk then they could not possibly have understood or completed the form without assistance. If the form is not completed correctly then it should not be accepted. It would include enquiring, where the applicant clearly does not speak English, how the application was completed in the Roman script without the assistance of some other person and why the questions requiring details of the name and address of such a person has not been completed. If the only forms that were accepted by DIAC were those that had been properly completed then applicants would not be able to say to this court that they did not understand what was in the application or that the application contained details which they did not authorise or that their agent neglected to put into the application matters which they had told the agent were important parts of their claims to be a refugee.
Another common complaint made by applicants is that they did not receive decision letters. When applications are completed it will be found, as in SZNFY, that a postal address is given which is different to that of the applicant’s residential address. Frequently, as in that case the postal address is in the city of Sydney and the applicant lives in a western Sydney suburb. Whilst it is not beyond the bounds of possibility that an applicant who speaks no English, may not have a job and is totally unfamiliar with the city, would travel in from a western suburb to the city on a regular basis for the purposes of picking up his or her mail, a more reasonable explanation would be that the address (which is frequently a unit in the southern end of Pitt St) is that of an unregistered migration agent. The DIAC counter clerk should be instructed that where different addresses for residence and receipt of correspondence are put into an application form and no details of a “friend” which correspond to the address for receipt of documents is given, that the applicant should be questioned on the subject and the DIAC officer satisfied that no breach of the Act or Regulations relating to migration agents has occurred and that the applicant will truly receive the correspondence.
This is the eighth decision in which I have attempted to bring these matters to the attention of the Department. The failure of the Department to properly monitor the submission of applications has a number of deleterious effects. Most importantly, it allows vulnerable people to be made the victims of unscrupulous persons within their own communities who take money for completing forms which frequently are incorrect in material particulars. This leads to cases where applicants are able to establish fraud of the “agent” rendering Tribunal decisions invalid. The costs of such applications to the court and the rerun of the Tribunal processes is an unnecessary cost burden being borne by the Commonwealth. Finally, the failure to properly police the filing of applications allows applicants to make false claims about interpretation, migration agent’s assistance and general misunderstanding of the system which require resources to be spent on investigation and the time of the courts to be unnecessarily taken up. I should make it clear that these remarks are general and are derived from some eight years of undertaking review of migration decisions in this court. The fact that the instant cases are reflective of the problem is not to indicate any criticism of Mr Karp or his instructing solicitors who had no knowledge of either applicant at the time the forms were completed and who came to their assistance several years later and put forward their submissions based upon instructions received.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 22 October 2009
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