SZTZA v Minister for Immigration and Border Protection

[2015] FCA 175

FEDERAL COURT OF AUSTRALIA

SZTZA v Minister for Immigration and Border Protection

[2015] FCA 175

Citation:	SZTZA v Minister for Immigration and Border Protection [2015] FCA 175
Appeal from:	Application for leave to appeal: SZTZA v Minister for Immigration [2014] FCCA 2316
Parties:	SZTZA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1079 of 2014
Judge:	RARES J
Date of judgment:	11 February 2015
Legislation:	Federal Circuit Court Rules 2001 (Cth)
Cases cited:	Bienstein v Bienstein (2003) 195 ALR 225 applied SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 applied SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 referred to SZTZA v Minister for Immigration [2014] FCCA 2316 referred to
Date of hearing:	11 February 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	22
Solicitor for the First Respondent:	Mr M Wiese, Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1079 of 2014

BETWEEN:

SZTZA
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	11 FEBRUARY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1079 of 2014

BETWEEN:

SZTZA
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	11 FEBRUARY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal from a decision of the Federal Circuit Court that dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal, made on 7 February 2014:  SZTZA v Minister for Immigration [2014] FCCA 2316. The Tribunal held that it had no jurisdiction in respect of the applicant’s 11-month old son, who had not been included in her application to the Tribunal for review of the Minister’s delegate’s decision to refuse to grant her a protection visa.

2. The trial judge ordered that the application be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). His Honour did so on the basis that the Tribunal’s finding that it had no jurisdiction with respect to her son was correct, and that even if the applicant’s migration agent had made a mistake in failing to include her son in the application for review, there was no evidence of dishonest conduct by any person that could provide a foundation for an argument based on fraud of the kind referred to in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.

3. Moreover, by the time of his Honour’s decision on 9 October 2014, the son had returned to China (on 11 September 2014), and the applicant had not included his name in the application for review by the Federal Circuit Court.

   Background

4. The application for review had been filled out, apparently, electronically by her migration agent, Weiming Qian, and was then signed by the applicant on the date on which it was filed.  In answer to question 6, “Are there any persons applying for review” a computer generated tick was entered against the box “No”.  The Tribunal concluded that it had no jurisdiction to deal with any claim that the son might have had to a protection visa, because he had not sought a review of the delegate’s decision.

5. The substantive claims of the mother were based on a fear of persecution for reasons of religion concerning her commitment to Christianity.  The Tribunal found that the mother was not a credible witness in respect of key aspects of her claims for protection.

6. The Tribunal found her evidence to be unconvincing and that she could not elaborate in detail, or in a meaningful way, about her claimed religious beliefs or practices.  The Tribunal also found that country information indicated that children of Chinese nationals born overseas could be registered domestically in China and that both the father and the mother were Chinese nationals.  It found that even though having a child out of wedlock might require her to pay a compensation fee to have her son registered in China, once the fee was paid he would be registered.  Accordingly, it rejected her claim that he would not be registered on her return to China, and that that would have an adverse impact on her.

7. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution or that there was a real chance of her being harmed were she returned to China.  It also found that Australia owed her no complementary protection obligations in the circumstances.

8. The applicant’s grounds of review in the Court below said:

   (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.

9. Shortly after the applicant commenced the proceedings on 7 March 2014, they came before his Honour on 3 April 2014.  He then made orders for a show cause hearing be listed on 9 October 2014, and that the applicant file and serve any affidavits containing additional evidence upon which she relied by 22 April 2014.  It appears that she did not file any further evidence in support of her claim.

10. The Minister’s submissions that the proceedings below be dismissed, which his Honour found to be correct, have been repeated before me.  Essentially the Minister argued that, first, the applicant did not have standing to apply for judicial review of the Tribunal’s decision in respect of her son, secondly, that the decision was plainly right and, thirdly, in any event, there was no power to correct mistakes in procedure not involving fraud.  The Minister argued that the Migration Regulations 1994 (Cth) contained a criterion for the grant of a protection visa that an applicant be personally present in Australia at the time the visa was granted, which could not, in the circumstances, be satisfied. I assume that this was a reference to cl 866.411 that prescribed that a circumstance applicable to the grant of a protection visa was that the applicant for it be in Australia.

    The trial judge’s decision

11. His Honour recorded that the applicant made submissions in person at the hearing on 9 October 2014. Because of his age, the son was not competent to apply personally to the Tribunal for a review of the delegate’s decision. Pursuant to s 412(2) of the Migration Act 1958 (Cth), an application for review may only be made by the non-citizen who was the subject of the primary decision. The trial judge found that the mother’s application could not include anyone else, unless that person was also an applicant with her. His Honour accepted that the son could not have done anything on his own, but his mother, who was in the position of a guardian, certainly could have applied to the Tribunal on his behalf. Nonetheless, the simple fact was that on 22 August 2013, the applicant made the application to the Tribunal seeking a review of the delegate’s decision in her name alone. Accordingly, his Honour found that because the application to the Tribunal had failed to include the name of the son as an applicant, by reason of the response to question 6 on the form, there was no jurisdiction in the Tribunal to review any claim that the son might have had for a protection visa by force of the provisions of s 412(2).

12. Secondly, his Honour found that there was no legal basis on which the Tribunal should, or could, have corrected a “mistake” by the agent and that there was no evidence before him of any dishonest conduct by any person that could provide the foundation for an argument based on fraud.

13. His Honour also identified a number of hypothetical issues that could have been raised, had the son been joined to the proceedings before the Tribunal or the Court below, namely, first, whether the son had ever been properly notified of the delegate’s decision, secondly, if he were not properly notified, whether the Tribunal should have dealt with the issue of his interests in the review differently, and, thirdly, whether the Tribunal’s review function had been disabled.  His Honour also raised a question as to the circumstance that the son was no longer in Australia at the time of the hearing below.  He found that no useful purpose would be served by a final hearing to address any of those hypothetical issues and dismissed the application in accordance with the Minister’s submissions.

    Consideration

14. The principles that govern the grant of leave to appeal are well established.  An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from a refusal of leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29].

15. Before me the applicant, who appeared with the assistance of an interpreter, said that she had asked the migration agent who completed the form whether her son was included in it and had been told that he was.  As I have mentioned, the applicant had an opportunity to make an affidavit with further evidence to support the application in the Court below but did not do so.  There is no material before me as to whether she received any explanation of the circumstances in which such evidence might have assisted her application.

16. Clearly enough that submission may well have had force, if there were evidence that that answer was false, and false to the knowledge of the person who gave it, leading the applicant to authorise the filing of the application for review before the Tribunal in the form that it had.  However, no such evidence was before his Honour and none is before me. It is not clear on what basis the son had been returned to China and without his mother.

17. The impact of the absence of the son from Australia at the time of the hearing in the Court below and his having been returned to China raises the question as to what useful purpose a final hearing in the Court below might have produced.

18. It is not necessary to decide whether the applicant could bring the application to the Federal Circuit Court for review of the Tribunal’s decision that it did not have jurisdiction to deal with an application made to it by her on behalf of her son within the meaning of s 478(a) or whether that application had to be filed in the Court by her son, as a person who was the subject of the decision under s 478(b).

19. There was no evidence of any fraud before his Honour.  The applicant had been given an opportunity to put such evidence before the Court below and me.  The Tribunal’s decision on the material before it was inevitable.  There was no application for review made by the son.  And there was no evidentiary basis upon which it could be asserted, consistently with the principles identified in SZFDE 232 CLR 189 that any fraud on the Tribunal had occurred by reason of any conduct of the migration agent or anyone else relating to the circumstances in which the application for review by the Tribunal was prepared or filed.

20. Moreover, there was no material before his Honour or me to identify how any useful result could be achieved in the event that the decision of the Tribunal were set aside, and it could then proceed to consider the son’s claims to a protection visa.  That is because of the Tribunal’s rejection of his mother’s evidence as to any basis upon which Australia owed her, or him as her new-born dependant child, protection obligations under the Refugees Convention or the complementary protection ground in s 36(2)(aa) of the Act.  The son is now in the country the subject of circumstances said to support the claim for a protection visa.

21. In all the circumstances, I am not persuaded that any useful result could ensue from a grant of leave to appeal in this case:  SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28]–[29].

    Conclusion

22. I am not satisfied that there is any sufficient doubt about the reasoning of the Court below to warrant the grant of leave to appeal or that substantial injustice, in all the circumstances, will result from refusal of leave to appeal.  For these reasons I will order that the application for leave to appeal be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        9 March 2015