SZVEP v Minister for Immigration
[2016] FCCA 1096
•29 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVEP v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1096 |
| Catchwords: MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – Tribunal reviewing a second protection visa application limited to the complementary protection criterion – the delegate had considered both the refugee and complementary protection criteria – whether the first protection visa application was validly made considered – whether the Tribunal was otherwise required to consider both visa criteria considered. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.98 |
| Cases cited: AMA15 v Minister for Immigration [2015] FCA 1424 SZVCH v Minister for Immigration & Anor [2015] FCCA 2950 |
| Applicant: | SZVEP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2722 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2016 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application as amended on 21 December 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2722 of 2014
| SZVEP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 11 September 2014. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts is derived from the submissions of the Minister, filed on 3 May 2016.
The applicant is a 47 year old male citizen of China.[1] The applicant first arrived in Australia on 17 April 2004 under a false name.[2] The applicant then left Australia on 24 April 2004 and returned to Australia again under the same false name on 24 September 2005.[3]
[1] Court Book (CB) 2 - 3.
[2] CB 72.3.
[3] CB 72.3.
On 19 December 2005, the applicant lodged his first protection visa application under the same false name.[4] That application was refused on 16 February 2006.[5] The applicant then remained in Australia unlawfully and, on 12 November 2013, was issued a passport in his current name.[6]
[4] CB 72.3
[5] CB 72.4.
[6] CB 72.4
On 12 September 2013, after the Full Federal Court judgment in SZGIZ v Minister for Immigration, (SZGIZ)[7] the applicant lodged his second application for a protection visa. The applicant now claims that he fears persecution in China because he is being pursued by money lenders and cannot obtain effective state protection as the police are corrupt and assist the money lenders.[8]
[7] (2013) 212 FCR 235.
[8] CB 74.5.
In his interview with the delegate on 7 April 2014, the applicant alleged (among other things) that the “lawyer” who prepared his first protection visa application “swindled him” and “made everything up”.[9]
[9] CB 75.3.
On 14 April 2014, the delegate refused the application.[10]
[10] CB 59 – 83.
On 21 April 2014, the applicant lodged an application for review of the delegate's decision with the Tribunal.[11] On 25 August 2014, the applicant and his migration agent attended a hearing before the Tribunal.[12]
[11] CB 84 - 85.
[12] CB 108, 118 [3]-[4].
On 11 September 2014, the Tribunal affirmed the decision not to grant the applicant a protection visa. In substance, the Tribunal:
a)observed that Full Court decision in SZGIZ allowed the second protection visa application to be made in relation to complementary protection claims;[13]
b)held that the complementary protection claims failed because it did not accept his claims about the money lenders[14] and, in the alternative, if the claims were true the applicant could reasonably be expected to relocate;[15] and
c)did not accept his claims about a fraudulent loan from a bank and an outstanding warrant for his arrest.[16]
[13] CB 119 [10].
[14] at [30]-[31].
[15] at [33]-[38].
[16] [39]-[44].
The current proceedings
These proceedings began with a show cause application filed on 30 September 2014. The applicant now relies upon an amended application filed on 21 December 2015, pursuant to orders made by me on 10 December 2015. There are three grounds in that application:
The Tribunal failed to consider the issue whether the applicant’s first protection visa application is invalid.
The Tribunal failed to consider the applicant’s claim in accordance to the refugee criterion.
The Tribunal failed to take into irrelevant consideration, namely speculation as to the decision of the first protection visa application by DIBP. (errors in original)
The application is supported by an affidavit by the applicant made on 20 December 2015. The applicant deposes as to his dealings with the person who assisted him with his first protection visa application. He was cross-examined on that affidavit.
I also have before me as evidence the court book filed on 18 December 2014 and the affidavit of David Maxwell John McLaren made on 8 April 2016, to which are annexed additional documents relating to the protection and other visa applications made or purported to be made by the applicant and transcripts of the interview conducted by the delegate with the applicant on 7 April 2014 and the hearing conducted by the Tribunal on 26 August 2014.
Both the applicant and the Minister prepared pre-hearing submissions and also made oral submissions at the trial of this matter on 9 May 2016.
Consideration
Ground 3
The third ground in the amended application is incomprehensible. The applicant’s written submissions do not assist. I invited oral submissions from the applicant in relation to his grounds of review but he was unable to explain the third ground. As the ground cannot be explained, it does not point to, let alone establish, any jurisdictional error by the Tribunal.
Ground 2 – was the Tribunal required to consider the applicant’s claims against the Refugee Criterion?
The second ground, being whether the Tribunal was required to consider the refugee criterion, gives rise to two questions – the first of which concerns the validity of the first application. In relation to that first question, the Minister’s counsel cross-examined the applicant and the Minister relies upon s.98 of the Migration Act 1958 (Cth) (Migration Act).[17]
[17] NAWZ v Minister for Immigration [2004] FCAFC 199; SZGJO v Minister for Immigration [2006] FCA 393; Lloyd v Grace, Smith & Co [1912] UKHL 1; [1912] AC 716; and Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41.
The second question, as noted in the Court’s orders of 10 December 2015, is the application of this Court’s decision in SZVCH v Minister for Immigration & Anor (SZVCH).[18] The Minister’s appeal from that decision was successful[19]. The Full Federal Court approved several earlier decisions by single instance appellate judges that my decision in SZVCH was incorrect[20]. It follows and I find that the Tribunal was correct in finding at [10]-[11] of its reasons[21] that the review was confined to the complementary protection criterion and that the delegate had erred in considering the refugees criterion, provided that the applicant’s first protection visa application was a valid one.
[18] [2015] FCCA 2950 at [26].
[19] Minister for Immigration v SZVCH [2016] FCAFC 127.
[20] AMA15 v Minister for Immigration [2015] FCA 1424 at [48] per Markovic J which was endorsed by Katzmann J in SZRAG v Minister for Immigration [2016] FCA 189 at [23].
[21] CB 119.
As to the validity of the first protection visa application, it would logically follow that if the first protection visa application was invalid, the second protection visa application could and should have been considered in its entirety without resort to the reasoning of the Full Federal Court in SZGIZ.
In his affidavit, the applicant says that in 2005 he paid $50 to be introduced to a “solicitor” whose name and contact details he does not know. He says, in effect, that the “solicitor” made a protection visa application on his behalf without his knowledge or consent and he was never told the outcome of it, leading to his detention by the Minister’s Department on 2 September 2013. Under cross-examination, the applicant conceded that the signature on the statement of claims accompanying his 2005 protection visa application was his, using a false name. He also conceded that the signature appearing in the body of the protection visa application at page 16 of Mr McLaren’s affidavit was his, using the same false name. He conceded that the photograph placed in Section C of the application[22] was a photograph of him. He claimed that the photograph had been taken from his false passport but later conceded that the photograph in that false passport was different. He accepted that the signature appearing at the end of the protection visa application[23] was also his, again using the same false name.
[22] McLaren affidavit at page 18.
[23] McLaren affidavit at page 30.
In contrast, the applicant maintained under cross-examination that his signatures in his earlier short stay business visa were not his. Further, the photographs on that application were not photographs of him. He claimed that he had nothing to do with that application which had been arranged for him from China.
The applicant conceded under cross-examination that he took no interest in what was put in his first protection visa application (or for that matter, his earlier business visa application) and maintained that attitude in relation to his second protection visa application in 2013.
In re-examination, the applicant stated that he had never seen the business visa application purportedly made on his behalf and, while he had seen the 2005 protection visa application, he did not know of its contents and signed it using a false name.
In my opinion, the evidence establishes that the 2005 protection visa application was validly made (albeit with the applicant using a false name) in accordance with his instructions. He adopted the contents of the application by signing it (using a false name) and, although I accept he did not know the contents of the visa application, he was completely uninterested in those contents.
Section 98 of the Migration Act states:
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
I find that the 2005 protection visa application was filled in on behalf of the applicant because he caused it to be filled in on his behalf and adopted the contents of it by signing it in various places. I find that the 2005 protection visa application was validly made.
Ground 1 – did the Tribunal fail to consider whether the applicant’s protection visa application is invalid?
The Minister contends, in relation to this ground, that the question of whether the first protection visa application was valid is not a mandatory consideration under the Migration Act. It is not necessary to address that issue in light of my finding above that the first protection visa application was validly made. In his written submissions, the applicant complains about [31] of the Tribunal’s decision record where the Tribunal said:[24]
The Tribunal is also concerned that the applicant made a claim in 2005 for protection which he now repudiates, saying he was swindled by a lawyer and knew nothing about the claims he made. That establishes that the applicant is willing to make false claims and therefore causes the Tribunal a degree of doubt in relation to his current claims. The Tribunal also draws an adverse inference from the fact that it [has] taken the applicant nine years to make what he says are his actual claims, when the key events happened before the applicant’s arrival in Australia in 2005. Whilst some delay in making claims may be understandable due to the time taken to integrate into a new country environment, nine years is a very significant period of delay and the Tribunal draws an adverse inference from this delay.
[24] CB 122.
In my opinion, the conclusions reached by the Tribunal in that paragraph were open to it on the material before it. The Tribunal apparently proceeded on the basis that the first protection visa application was validly made and, on the material available to it, it was entitled to do so.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 September 2016