SZOVJ v Minister for Immigration
[2011] FMCA 173
•17 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOVJ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 173 |
| MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case. PRACTICE AND PROCEDURE – Referral of the conduct of the applicant’s migration agent to the OMARA. |
| Federal Magistrates Courts Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| Applicant: | SZOVJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2629 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 17 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2011 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Ms E Baggett DLA Phillips Fox |
INTERLOCUTORY ORDERS
The Court directs that the transcript of today’s hearing is to be obtained and provided, together with a copy of the reasons for judgment in this matter, to the Office of the Migration Agents Registration Authority for whatever action it deems appropriate.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2629 of 2010
| SZOVJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application by review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 1 November 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant, who is from China, arrived in Australia on 10 April 2010. She applied to the Minister’s Department for a protection visa on 19 April 2010. That application was rejected by a delegate of the Minister on 14 July 2010. The decision was notified to the applicant by letter dated the same day. The delegate’s decision was made in the light of the protection visa application and an oral interview. The applicant was represented before the Department by Ms Weiming Qian of Good Fortune Company, a registered migration agent.
On 12 August 2010, the applicant sought review of the delegate’s decision by the Tribunal. Ms Qian also acted for the applicant before the Tribunal. The applicant made no additional claims in writing before the Tribunal. By letter dated 23 August 2010 the applicant was invited to attend a hearing before the Tribunal on 7 October 2010. The applicant responded, accepting the initiation but, in accordance with what I understand to be her usual practice, Ms Qian declined to attend.
At the hearing conducted by the Tribunal, the presiding member put a number of credibility concerns to the applicant. Paragraph 76 of the Tribunal reasons (court book, page 115) records that the Tribunal appeared to go through a process of purported disclosure pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal decided that it could not accept that the events central to the applicant’s claim to be a refugee occurred. The applicant’s claims centred upon an assertion of a dispute with the Chinese authorities over the demolition of her property and taking of land in 2009. The applicant asserted that she had got into trouble with the authorities by pursuing a claim for compensation. Essentially, the Tribunal concluded that those claims were fabrications.
These proceedings began with a show cause application filed on 3 December 2010. There are three template grounds in the application:
1. RRT did not consider my application fairly.
2. My house was demolished by local government, but no reasonable compensation.
3. I was persecuted for appealing. RRT low assess my risk to return to China.
The applicant told me that that application was prepared by Ms Qian. The application provides an address for service of PO Box 768, Auburn in New South Wales, postcode 1835. The applicant told me that Ms Qian is responsible for that post office box. I am aware that the same postal address has been used by applicants in other proceedings[1].
[1] For example, it was used by applicant SZOGZ in matter SYG658 of 2010, by applicant SZMQQ in matter SYG700 of 2009, and by applicant SZMGJ in matter SYG1226 of 2008
The application is supported by a short affidavit which I received. The applicant told me that Ms Qian also prepared that affidavit. I also received as evidence the court book filed on 13 January 2011.
This matter came before me for the first court date directions on 31 January 2011. At that time the applicant filed in court, by leave, a notice of change of address identifying a residential address in Brisbane. The applicant attended that directions hearing in person, with the assistance of a Mandarin interpreter. We discussed whether today’s hearing should take place in Sydney or in Brisbane. The applicant was in two minds because, on the one hand, a hearing in Brisbane would be more convenient as she is living there now. On the other hand, she appeared to be dependent on Ms Qian’s assistance in the conduct of the case. We arrived at a compromise solution whereby I gave her leave to appear today by telephone, should that be necessary.
This week the Court received by facsimile a letter purportedly from the applicant and bearing the date 11 March 2011. The letter is addressed to the court registry and bears the handwritten notation “Urgent”. The letter is typewritten in the English language. The letter relevantly states that the applicant is living at her nominated address in Queensland and that she hopes to attend court at Brisbane today. The letter asked the court registry to arrange a hearing in Brisbane.
In the light of the letter, I arranged a video link to the Court in Brisbane. When the matter was called in Brisbane at 9.20 am Brisbane time there was no appearance by the applicant. Neither was there any appearance by the applicant on level 6 or level 7 of John Madison Tower in Sydney when the matter was called at 10.30am and 10.33am. In view of the time difference between Sydney and Brisbane, I adjourned until after 11.15am Sydney time.
My staff were able to contact the applicant by telephone on her mobile telephone number. A conversation ensued through the Fuqing interpreter engaged for today’s hearing. The applicant stated that she was at home and that she did not know where the Court in Brisbane was located. It was apparent that there was insufficient time for the applicant to attend the Court in Brisbane, even if she had known where to go. In the circumstances, the hearing resumed with the applicant by telephone from her home in Brisbane.
The applicant told me that she had made a deliberate decision to remain at home and not to go to Court in Brisbane. She told me that, although she had prepared the letter and apparently writes in English, the letter had been suggested to her by Weiming Qian. I am concerned that the circumstances point to an attempt by Ms Qian to mislead and deceive the Court for the purposes of obtaining the advantage of delay for the applicant. Those circumstances should be further investigated.
The parties both made oral submissions.
I explained to the applicant that grounds 2 and 3 in the application could not assist her as they simply reiterated the applicant’s protection visa claims, which I could not deal with. I asked the applicant about her claim of unfairness. The applicant stated that she was suffering from some mental problems and was in a bad mood at the hearing conducted by the Tribunal. However, there is nothing on the record of the hearing to indicate either that that was the case or, if it was the case, that it was pointed out to the presiding member. Neither was there any indication in either of the hearings before me that the applicant was labouring under any mental disability. If, as the applicant claims, she was suffering from some mental problems at the time of the Tribunal hearing, it was unfortunate that Ms Qian failed to attend.
I asked the applicant why Ms Qian did not attend the hearing. She made the very surprising claim that Ms Qian had represented herself as an overseas student. I do not believe that. The applicant explained that she was introduced by Ms Qian by an intermediary described by the applicant as a friend. The applicant told me that this friend was responsible for all commercial arrangements required by Ms Qian in relation to this case. The applicant understands that she may, at some future time, be required to pay a fee for Ms Qian’s services.
The applicant also asserted confusion at the hearing on the question of the applicant’s change of name. The Tribunal records at [54] of its reasons (court book, page 112) that the applicant claimed to have changed her name, and then retracted the claim. Those circumstances figured in the Tribunal’s reasoning at [91] (court book, page 118).
I do not rule out the possibility that the applicant may have been misunderstood. However, in my view, if a mistake was made due to any confusion, it was not determinative of the outcome. The Tribunal made comprehensive findings of untruthfulness against the applicant, of which the issue of her name was a minor part. I see no arguable case of any breach of s.425 in this matter.
Having regard to the nature of the information disclosed by the Tribunal at the Tribunal hearing, I very much doubt that any obligation of disclosure arose under s.424A. That information focused on inconsistencies in the applicant’s evidence. There is, in my view, no arguable case for the breach of either ss.424A or 424AA.
No other arguable case of jurisdictional error has been advanced. I conclude that the application should be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Courts Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application having been dismissed, the Minister seeks an order for costs in accordance with the court scale. The applicant expressed disagreement with my oral reasons but did not otherwise address the issue of costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 21 March 2011
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