SZTZA v Minister for Immigration
[2014] FCCA 2316
•9 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTZA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2316 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 411, 412, 414, 476, 477, 478, 500 Migration Regulations 1994 (Cth) |
| Fernando v Minister for Immigration (2000) 97 FCR 407 SZLSM v Minister for Immigration (2009) 176 FCR 539 |
| Applicant: | SZTZA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 551 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 October 2014 |
| Delivered at: | Brisbane, via videolink to Sydney |
| Delivered on: | 9 October 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr M Wiese Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit 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 $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 551 of 2014
| SZTZA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 7 February 2014. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made a claim for religious persecution there. Background facts relating to the applicant’s protection claims and the decision of the Tribunal on them are set out in the Minister’s written submissions filed 2 October 2014.
The applicant is a citizen of China[1] who arrived in Australia on 4 September 2007 as the holder of a student visa.[2] She applied for a protection visa on 30 October 2012.[3]
[1] Court Book (CB) 2.
[2] CB 66.
[3] CB 1-31.
On 12 March 2013, the applicant's infant son was born. On 14 May 2013, the applicant submitted papers to formalise her son's application for a protection visa, taken to be combined with her own application.[4]
[4] CB 45-54; see Migration Regulations 1994 (Cth) rule 2.08 (“Application by Newborn Child”).
In her protection visa application, the applicant claimed to be a member of the Local Church in China and to fear persecution in China on that basis. She was also afraid to return to China as a single mother.[5] The delegate did not believe the applicant's religious claims and did not accept that the applicant's return to China as a single mother presented a relevant risk of harm for the purposes of the criteria for a protection visa in s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). Accordingly, on 22 July 2013, the delegate refused to grant a protection visa to the applicant. The delegate also refused to grant a protection visa to the applicant's son, for whom no independent claim to be in need of protection was made.[6]
[5] CB 31.
[6] CB 64-90.
On 22 August 2013, the applicant lodged an application to the Tribunal for review of the delegate's decision.[7] Documents in the court book support the inference that she may have received some assistance to do so.[8] However, the applicant did not appoint a migration agent for the purposes of her application for review.[9] The application for review stated that the applicant, and no other person, applied for review of the delegate's decision.[10] That is, the applicant applied for review but her son did not. On 4 February 2014, the applicant attended a hearing of the Tribunal.[11] Her son was also present.
[7] CB 95-100.
[8] CB 91-94; 98 (Question 13).
[9] CB 97 (Question 9).
[10] CB
[11] CB 122.
The Tribunal's decision was dated 7 February 2014.[12] The Tribunal:
a)found that it had no jurisdiction to review the delegate's decision relating to the applicant's son, as he was not an applicant to the Tribunal for review of the Delegate's decision (Tribunal's no jurisdiction decision);[13] and rejected the applicant's claims for reasons essentially the same as those of the delegate, and affirmed the delegate's decision relating to her.[14]
[12] CB 130-137.
[13] CB 131 [3].
[14] CB 136-137 [44]-[55].
These proceedings began with a show cause application filed on 7 March 2014. The applicant continues to rely upon that application. There are three grounds in it:
1. The Tribunal didn’t accept my son in my application for review.
2. The agent failed to include my son in the application.
3. It is the agent’s mistake to include not my son. The Tribunal should correct that mistake.
The application is supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 2 May 2014.
The parties made oral submissions and the Minister also made written submissions. The Minister’s submissions identify a number of issues for today’s hearing:
The Applicant's son is not a party to the present proceeding. Only the Applicant seeks judicial review of the Tribunal's decision. The three grounds of review raised in the application to this Court, in essence:
(a)observe in Ground 1 that the Tribunal did not review the Delegate's decision in respect of her son;
(b)allege in Grounds 2 and 3 that “the agent” made a “mistake” and thereby “failed” to include her son in the application to the Tribunal; and
(c)allege in Ground 3 that the Tribunal should have “correct[ed]” that mistake.
Thus, the Applicant does not allege any error in the Tribunal's conduct of, or decision on, the review in relation to her own application for a protection visa.
By order 4 of the Court's orders made 3 April 2014, this proceeding is set down for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules). Rule 44.13 of the Rules provides that, at a show cause hearing, the Applicant is confined to the relief sought and the grounds mentioned in the application.
The issues for hearing, having regard to rr 44.12 and 44.13 of the Rules, are reflected in order 5 made on 3 April 2014, which confirms that the only issues currently raised in the show cause application relate to the status of the Applicant's son, who was not a review applicant before the Tribunal.
In the orders made on 3 April 2014, the Applicant was granted leave to file an amended application, additional evidence and written submissions. No documents have been filed pursuant to those grants of leave.
The Minister’s submissions deal further with those issues. Subject to the observations that I am going to make, I agree with those submissions.
The application to this Court fails because:
a)the applicant does not have standing to apply for judicial review of the Tribunal's no jurisdiction decision;
b)in any event, on the available evidence, the Tribunal's no jurisdiction decision was plainly right; and
c)further, the application does not allege anything to the contrary and does not suggest any legal basis for the allegation that the Tribunal should have “corrected” the “mistake” of any agent.
Standing to apply to the Court
Section 478 of the Migration Act governs the standing of persons to proceed under s.476 of the Migration Act for judicial review of a migration decision. Section 478 provides as follows:
Persons who may make application
An application referred to in section 477 [i.e. an application under s 476] … may only be made by the Minister, or where appropriate the Secretary, and:
(a)if the migration decision concerned is made on review under Part 5 or 7 or section 500 – the applicant in the review by the relevant Tribunal; or
(b)in any other case – the person who is the subject of the decision; or
(c)in any case--a person prescribed by the regulations.
The Migration Regulations 1994 (Cth) (Regulations) do not make any prescription for the purposes of sub-paragraph (c).
In the case of the applicant's son, there was no application to the Tribunal under Part 7 of the Migration Act for review of the delegate's decision relating to his protection visa application. The Tribunal did not conduct such a review. Accordingly, standing to bring proceedings for judicial review in respect of the Tribunal's no jurisdiction decision is governed by sub-paragraph (b) of s.478. Only the applicant's son himself has standing to seek judicial review in this Court of that decision.
The applicant's son is not a party to these proceedings. In respect of the issues raised in the show cause hearing of this matter, the application to this Court is incompetent because the applicant does not have standing to apply for judicial review in respect of her son. Therefore, these proceedings must fail.
Tribunal's jurisdiction
A decision by the Minister (or his delegate) to refuse to grant a protection visa, such as the decisions made in respect of the applicant and her son, is reviewable by the Tribunal by the operation of s.411(1)(c) of the Migration Act (which makes such a decision an “RRT-reviewable decision”).
Validity of an application for review to the Tribunal is governed by s.412.[15] Sub-section 412(2) provides as follows:
(2) An application for review [to the Tribunal] may only be made by the non-citizen who is the subject of the primary decision.
[15] See s.414(1).
On common law principles, the mother of an infant child has authority to make an application to the Tribunal on her child's behalf.[16]
[16] SZLSM v Minister for Immigration (2009) 176 FCR 539 at [17]-[26].
The Tribunal's jurisdiction to review an RRT-reviewable decision arises from s.414(1) of the Migration Act. The Tribunal must review an RRT-reviewable decision if it receives a valid application made under s.412. The Tribunal has no jurisdiction to review a decision that is not the subject of a valid application under s.412.[17]
[17] Fernando v Minister for Immigration (2000) 97 FCR 407.
The above principles of law and the evidence in the court book lead to the following conclusions:
a)the applicant's son was an applicant for a protection visa and his application was combined with that of the applicant;
b)the delegate made decisions in respect of the applications for protections visas by both the applicant and her son;
c)pursuant to s.412(2) of the Migration Act, an application to the Tribunal for review of a delegate's decision must be made by the person to whom the decision relates. The applicant was therefore not competent to apply, in her own name, for review of the delegate's decision relating to her son. The Tribunal was therefore correct not to construe the application lodged by the applicant as having done so;
d)as the applicant's son, by reason of his age, was not competent personally to apply to the Tribunal under s.412, the applicant had authority at common law to apply on her son's behalf. There is no evidence that the applicant exercised that authority;
e)thus, no application for review was submitted to the Tribunal in respect of the delegate's decision relating to the applicant's son;
f)the Tribunal was therefore correct to conclude that it did not have jurisdiction to review the delegate's decision in respect of the applicant's son as there was no application to the Tribunal for review of the delegate's decision relating to him.
"Correcting" the agent's "mistake"
There is no support in law for the proposition that the Tribunal should - or could - have proceeded in the manner suggested in Ground 3, to "correct" the "mistake" of the applicant's agent.
The proposition is not supported by any provision of the Migration Act or Regulations. It is contrary to the principle that mere negligence of an applicant's agent is not capable of supporting an allegation of jurisdictional error by the Tribunal.[18]
[18] SZFDE v Minister for Immigration (2007) 232 CLR 189 at [53].
In any event, the evidence is not sufficient to prove that an agent of the applicant made the “mistake” that is alleged. In particular, there is no evidence that the applicant's failure to lodge an application for review on behalf of her son was unintended. More relevantly to any conceivable ground of judicial review based upon the alleged conduct of an agent causing the applicant's son to fail to lodge a valid application for review,[19] there is no evidence of dishonest conduct by any person that could provide the foundation for an argument based on fraud.[20]
[19] See SZQVV vMinister for Immigration [2012] FCA 871 at [67]-[70] (Greenwood J); SZQVV vMinister for Immigration [2012] FCA 1471 at [13]-[19] (Flick J).
[20] See SZQVV vMinister for Immigration [2012] FCA 1471 at [20]-[29] (Flick J).
Further observations
This is an unusual case in a number of respects. First, the applicant’s son was born between the time the applicant applied for protection and when the Minister’s delegate made a decision on that application. The birth certificate is contained at page 54 of the court book. The applicant’s child was added to her protection visa application. The second peculiarity is that the applicant was represented before the Minister’s Department by Ms Weiming Qian, who had been a migration agent. It appears that while the matter was before the Minister’s Department, Ms Qian’s registration was cancelled.[21]
[21] Notification of that fact is set out at page 32 of the court book.
Thirdly, the applicant evidently changed her residential address prior to the delegate’s decision. That change of address was ultimately recognised. A further peculiarity is that shortly before the delegate’s decision Ms Bei Zheng, who is from Ms Qian’s company, Good Fortune Co, and operates out of the same premises and uses the same postal address, became the applicant’s agent.[22]
[22] CB 92
Another peculiarity is that it appears possible that the applicant and her son were notified of the delegate’s decision to the wrong address. I make no finding on that issue. It did not prevent the applicant applying for review to the Tribunal. For the purposes of that application, the applicant appointed Ms Qian as her authorised recipient, but not her representative.[23] The problem with the review application was that it did not include the applicant’s son. Neither was he a party to the judicial review application in this Court.
[23] CB 98
There are a number of hypothetical issues that might have been raised in this case. One hypothetical issue might have been whether the applicant’s son could still apply for review to the Tribunal on the basis that he had not been properly notified of the delegate’s decision. Another hypothetical issue would be, if that were so, whether the Tribunal should have dealt with the issue of his interests in the review differently.
A third possible issue might be whether the review function of the Tribunal in relation to the applicant’s son was disabled by either Ms Qian or Ms Zheng, who were evidently responsible for preparing the review application. These all remain hypothetical issues. The applicant has not raised any issue concerning the Tribunal’s decision insofar as it bears on her. The applicant’s son is not a party to the proceedings before the Court. When I asked the applicant whether she wanted to amend her application to join him as an applicant, she told me that her son had returned to China on 11 September 2014.
In all the circumstances, I conclude that no useful purpose would be served by a final hearing to address any of the hypothetical issues that I have outlined.
I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant expressed her understanding of that outcome.
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 $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 October 2014
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