SZQQP v Minister for Immigration
[2011] FMCA 803
•17 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQQP v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 803 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Indonesia – applicant making vague and general claims and failing to attend the Departmental interview and Tribunal hearing – applicant using the services of a person apparently holding themselves out to be a migration agent – abuse of the processes of the Court, the Tribunal and the Department. PRACTICE AND PROCEDURE – Immediate show cause hearing – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. LAW REFORM – Observations on the lack of integrity of the onshore visa processing regime. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| SZMEM v Minister for Immigration & Anor [2008] FMCA 1286 SZOOW v Minister for Immigration & Anor [2010] FMCA 960 SZOPW v Minister for Immigration & Anor [2011] FMCA 48 SZQKF v Minister for Immigration & Anor [2011] FMCA 566 |
| Applicant: | SZQQP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2102 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 17 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2011 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms H Lac Minter Ellison |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing, pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth).
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 $1,250 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2102 of 2011
| SZQQP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 19 September 2011. The application seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 August 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The application is supported by a short affidavit by the applicant filed with the application and attaching the decision of the Tribunal.
The applicant arrived in Australia on 4 February 2011 and applied to the Minister’s Department for a protection visa on 28 February 2011. She made claims of persecution based upon her Chinese ethnicity. She asserted that she had suffered discrimination and physical mistreatment in Indonesia in 1998 for reasons of her ethnicity. She claimed that the Indonesian authorities would not protect Chinese Indonesians.
The Tribunal records that the applicant was invited to an interview with the delegate but did not attend. The delegate refused the application because she was not satisfied about the applicant’s claims. She noted that the applicant’s claims were very general and lacked detail. The applicant had not given details of how and when she had been mistreated, whether she sought police protection and whether she had attempted to relocate. On 11 April 2011 the delegate refused the visa application.
On 13 May 2011, the applicant applied for review to the Tribunal. Apart from completing the review form, the applicant provided no further documents for the Tribunal. The Tribunal records at paragraph 28 of its reasons that on 29 June 2011, the Tribunal wrote the applicant, advising that it had considered all of the material before it relating to her application, but it was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 15 August 2011. The applicant was advised that if she not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. No response was received. The invitation to hearing was sent to the last given address and was not returned to the Tribunal as unclaimed mail. There were no other contact details given by the applicant. The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. In these circumstances and pursuant to s.426A of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal found that the applicant’s claims lacked sufficient relevant detail to determine whether the applicant falls within the Convention definition of a refugee. The applicant did not attend a hearing, which left the Tribunal member with claims which were vague, untested and in the most general of terms. She gave no details of previous mistreatment, no details of the identity of her persecutors or how state authorities responded to any complaints made of mistreatment. The Tribunal concluded that it could not be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
The circumstances surrounding this case are depressingly familiar to the Court. Before I came on the bench this morning, the solicitor for the Minister raised with the applicant the address for service given on her application form to the Court. That is an address which is known to be used by one or more migration agents who are probably unregistered. The address is PO Box K656, Haymarket, New South Wales, 1240. The solicitor obtained the applicant’s agreement to provide a different address in her information sheet. I suspect that a similar rigour was not applied either by the Minister’s Department or by the Tribunal.
I enquired of the applicant what were the circumstances of her application to the Court and the earlier processes before the Tribunal and the Minister’s Department. She was unwilling to give sworn evidence because she did not want to get her “friends”, as she described them, into trouble. The applicant told me from the bar table that when she arrived in Australia she was introduced by intermediaries to a man she knows as Mr Lu. Mr Lu is apparently the person using the address for service provided on the application to the Court. The applicant paid $5,000 to Mr Lu in three instalments. It appears that the first instalment was for the application to the Department, the second for the application to the Tribunal, and the third for the application to this Court. The applicant understood that she would become part of a process which would permit her to stay in Australia for at least 12 months.
Mr Lu gave her no details about that process and apparently did not inform her of the departmental interview or the Tribunal hearing. The applicant signed documents without knowing their contents. She has virtually no understanding of the processes in which she has been engaged before the Department and the Tribunal. She has no understanding of the process which she has commenced before this Court. The circumstances point to an abuse of this Court’s process, and also an abuse of the processes for dealing with the application for a protection visa before the Department and the Tribunal.
Having regard to those circumstances, I decided to order an immediate show cause hearing in this case.
There are three grounds in the show cause application:
1. That procedures that were required by law to be observed in connection with the making of the decision were not observed.
2.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
3. There was no evidence to justify the making of the decision.
Those grounds are so general as to be meaningless. I asked the applicant whether she had any real problem with the Tribunal decision. She was unable to articulate any problem. I doubt that she has even read the decision.
The only possible legal issue I can see arising in this case is one of fraud on the Tribunal by Mr Lu. If Mr Lu is an unregistered migration agent providing migration services unlawfully then he would have good reason to ensure that the applicant did not attend any interview or hearing. However, an applicant seeking to raise such an allegation, which has not been raised by this applicant, would need to come to the Court with clean hands.
In my view, this applicant was a knowing participant in any fraud that may have been perpetrated. The applicant paid $5,000 in order to have Mr Lu arrange a process that would permit her to stay in Australia for a minimum of 12 months. She paid no regard to what was being put to the Australian authorities on her behalf. The details of the processes on which she was engaged were of no interest to her. The important fact was simply that there was a process which would occupy time and that she was part of it.
The Court has previously called for a more robust visa processing and review system[1]. Applications like this, of which there are far too many, bring the protection visa processing regime into disrepute. I would have thought that the Minister and his department would have an interest in taking steps to break the business model of those who are intent on abusing and corrupting the system for the processing of protection visa applications.
[1] SZQKF v Minister for Immigration & Anor [2011] FMCA 566; SZOPW v Minister for Immigration & Anor [2011] FMCA 48; SZOOW v Minister for Immigration & Anor [2010] FMCA 960; SZMEM v Minister for Immigration & Anor [2008] FMCA 1286
The fact that applications such as this continue to come before the Court does not give confidence that sufficient steps have been taken. All the Court can do is to call for change and continue to deal with those applications that are presented to it.
The application before the Court does not raise any arguable case of jurisdictional error by the Tribunal. I conclude that the Tribunal decision is a privative clause decision and in consequence the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister seeks scale costs which in this instance would be $1,250. The applicant was concerned that the costs should not be payable immediately, but did not oppose an order for costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,250 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 18 October 2011
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