SZNIV v Minister for Immigration

[2009] FMCA 732

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIV v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 732

MIGRATION – Review of decision of RRT – where applicant filed a statement shortly before hearing giving a completely different story to the claims made in his PVA – comments upon acceptance of PVA forms where applicant clearly cannot speak or write English but where forms are written in English without translation certificates or helpers being identified.

Migration Act 1958, ss.45, 48B, 426A, 441A

SZFDE v Minister for Immigration [2007] HCA 35

Applicant: SZNIV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 634 of 2009

Judgment of: Raphael FM

Hearing date: 22 July 2009

Date of Last Submission: 22 July 2009

Delivered at: Sydney

Delivered on: 22 July 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 634 of 2009

SZNIV

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 26 December 2007 as the holder of a Student (Guardian) visa (TU580).  On 25 July 2008 he applied for a protection (Class XA) visa. On 11 September 2008 the department wrote to the applicant offering him an interview on 25 September 2008.  The applicant did not respond to that invitation and did not attend the interview.  On 26 September 2008 the delegate of the Minister refused to grant a protection visa and informed the applicant.

2. On 27 October 2008 the applicant applied to the Refugee Review Tribunal for a review of a delegate's decision. On 19 November 2008 the Tribunal wrote to the applicant at the address given by him to receive communications inviting him to a hearing. The applicant did not attend the hearing and so the Tribunal applied s.426A of the Migration Act 1958 (the “Act”) and proceeded to consider the application on the information presently before it. 

3. The only information which the Tribunal had about the applicant's claims was the short statement which was annexed to the PVA and found at [CB 28] reproduced by the Tribunal at [CB 79].  It alleged an association with Falun Gong and a refusal by him to sign a guarantee statement that he would no longer practice in August 2001.  The applicant stated that he had, in fact, written a guarantee statement and paid a 17,000 Yuan RMB fine for his release.  He said that realising that he would be put in gaol again if he stayed in China he bribed a powerful government official to issue a passport and help him to apply for a visa to Australia. 

4. It is not surprising that the Tribunal found that the information provided by the applicant was not sufficient to satisfy it that he was a person to whom Australia owed protection obligations, and that was the sole ground upon which the Tribunal made its decision.  It did not utilise any country information and did not make any findings about the applicant's credibility.  A decision made in that way is virtually unimpeachable. 

5. In his application to this court made on 17 March 2009, whilst he was in immigration detention, the applicant claims that the Tribunal was in breach of its obligations under what is said to be s.425A of the Act by failing to give notice of the day, time and place on which he was scheduled to appear for hearing by one of the methods specified in s.441A and failing to give the prescribed period of notice.

6. The invitation to the hearing is found at [CB 69], the letter was sent by registered post to the address which the applicant gave for the receipt of information at [CB 65]. The date, the time, and the place of the hearing were clearly set out and so I am satisfied that the provisions of s.425A were complied with. The second ground says:

   “That the Tribunal should consider relevant information in my original country in relation to my application.”

7. The Tribunal's reason for the decision, being the lack of satisfactory evidence of the claims, meant that there was no necessity for the Tribunal to consider the current situation in China relating to Falun Gong because the Tribunal could not be satisfied from his short statement that the applicant was, in fact, such a member. 

8. The application will have to be dismissed.  But before completing these reasons I must draw attention to certain other matters that have occurred since the application was filed.  Firstly, in May 2009, the applicant had the benefit of an interview with a barrister appointed under the Minister's scheme. The barrister has written to the court informing the court that he had attended the applicant at Villawood Detention Centre on 4 May using a telephone interpreter.  The barrister appears to have had problems with that interpreter and attended again on 16 May with a third telephone interpreter.  He expressed a view that the applicant was not capable of giving instructions or managing his own affairs or that he understood the nature of the proceedings. He gave a lay opinion about the applicant's psychiatric condition.  He expressed a view that he believed that the applicant was illiterate. 

9. The applicant appeared before me today.  It is true, that as the barrister said, he has a speech defect, but it seems to me that he was quite capable of understanding the nature of the hearing and the questions which I put to him.  He was certainly able to understand the excellent interpretation provided by Ms Ya. 

10. The second matter of concern is that on 7 July the applicant sent into this court and provided to the respondent a document entitled Outline of Submissions.  This document is written in excellent English.  It is a statement and it annexes what are said to be translations of certain faxes which, if true, would provide the corroborative evidence of the story rehearsed in the statement.  The statement is dated 10 June, almost a month before the submission was filed.  The statement indicates a completely different story to the one provided in the PVA.  It relates to a complaint that the applicant's fish farm had been compulsorily acquired from him with minimal compensation and his livelihood had been destroyed.  As a result of complaints that he had made he found himself arrested and beaten up by police.  He said he was sentenced to three years in a labour camp.  He does not tell how long he was there but he tells that he paid an 80,000 RMB Yuan bribe to receive medical parole. 

11. The applicant told me today that he had been cheated by his original migration agent. The migration agent told the applicant that he could him four extensions of his bridging visa and it would cost him $800.00 a time. The documentation in the Court Book indicates no migration agent was used in the PVA, although somebody filled in the form and typed out the statement, and it is clear from the questions responded to at [CB 1], that the applicant required an interpreter [9].

12. Like many other applications about which I have made comments in the past, the applicant said in the form that he received no assistance, notwithstanding his clear inability to write in English.  The application was accepted at face value by the department.  I would repeat my previous pleas to the Department that unless it speedily and severely modifies the manner in which it accepts applications of this type it, the Refugee Review Tribunal, and all the Federal Courts will continue to be inundated with claims arising out of the alleged failure of so called migration agents, so called friends, and so called translators to honestly convey applicants’ claims for protection.

13. In this particular case the applicant has told me the name of the person who wrote the statement dated 10 June 2009, and I have been provided with his card which will be kept with the papers.  The applicant makes no criticism of this gentleman, but the department might find it useful to interview him.  The applicant has also given me the name and the mobile telephone number of the person he claims was his "friend" or "migration agent", and those details have been noted by Counsel for the Minister.  That person should also be interviewed. 

14. It would have been open to the applicant to come to this court with evidence which might establish third party fraud of the type considered in SZFDE v Minister for Immigration [2007] HCA 35. He has not done so and I am, therefore, obliged to dismiss his application as previously discussed. But the concerns that he raised are such that I believe it will be fairer to the applicant if his story is investigated and if it is found that he has been the victim of the fraud he alleges, consideration be given to allowing him to make a new application under s.48B.

15. The application is dismissed.  The applicant is to pay the first respondent's costs which are assessed in the sum of $3,800.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  30 July 2009