SZVXO v Minister for Immigration

[2016] FCCA 444

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 444

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – 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), s.477

SZFDE v Minister for Immigration [2007] HCA 35; (2007) 232 CLR 189
SZMGX v Minister for Immigration [2009] FCAFC 67
SZSXV v Minister for Immigration [2014] FCCA 1584
SZTIN v Minister for Immigration [2015] FCCA 1972

Applicant: SZVXO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3629 of 2014

Judgment of: Judge Driver

Hearing date: 2 March 2016

Delivered at: Sydney

Delivered on: 2 March 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application under s.476 of the Migration Act is extended up to and including 24 December 2014.

2. The name of the second respondent is amended to the Administrative Appeals Tribunal.

3. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 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 3629 of 2014

SZVXO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 18 November 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There were two applicants, who were a father and his son.  In these reasons, the first applicant is referred to as the Primary Applicant.  As the secondary applicant is the applicant in these proceedings, any references to the applicant are intended to be references to him. 

2. The case is somewhat unusual.  Background facts are set out in the Minister’s outline of submissions filed 24 February 2016. 

3. The applicant was born on 23 December 1997, and is a citizen of the People’s Republic of China, who was a secondary visa applicant on his father’s application for a protection visa, which was made in November 2013[1]. The applicant’s father (Primary Applicant) claimed to fear persecution in China on the basis of his wife’s practice of Falun Gong. The Primary Applicant claimed that he and his wife had practised Falun Gong in 1997 to 1998, but that he discontinued its practice.  He claimed to have left China for Japan to work, but that he lost his job in 1999 due to his Falun Gong activities.  He claimed that he and his wife divorced in 2005, and that in September 2006, policemen stormed his house, located Falun Gong materials and arrested his wife. He claimed that he would be mistreated by the Chinese government if he returned to China due his wife’s Falun Gong practice and because he could not afford his wife’s medical costs.

   [1] Court Book (CB) CB 1-37

4. In his protection visa application, in Part B[2], the Primary Applicant signed the application at the place indicated on the form, and in response to the question “Do you have your own claims for protection?” ticked the box “Yes”. Just below on the same page, the applicant signed the form, and in response to the same question, has ticked the box “No”.  Part C of the visa application, which is to be completed by visa applicants who wish to submit their own claim for protection, was completed by the Primary Applicant.  Relevantly, in his responses in Part C the Primary Applicant made no reference to the applicant, or the fact that the applicant had a fear of persecution.  On the first page of Part D of the application[3], visa applicants are informed “This part is for a member of the same family unit who does NOT have their own claims for protection, but is included in this application”.  The applicant completed Part D of the application.

   [2] CB 10

   [3] CB 27

5. The Minister’s delegate rejected the claims of the Primary Applicant to be entitled to a visa as the delegate did not find his claims to fear harm in China to be plausible.  Further, the delegate considered that his real reason for the Primary Applicant wanting to stay in Australia related to his desire to work in Australia and earn money to pay for his ex-wife’s medical expenses[4].

   [4] CB 61

Decision of the Tribunal

1. The Primary Applicant and the applicant applied to the Tribunal for review of the delegate’s decision.  The Tribunal invited the applicant and the Primary Applicant to appear at a hearing on 3 October 2014[5]. The applicant and the Primary each attended the hearing[6].  Following the hearing (which was for some unknown reason very brief), the Tribunal determined to convene a further hearing.  It invited the applicant and the Primary Applicant to attend a resumed hearing on 17 November 2014[7], which the Primary Applicant, but not the applicant, attended[8].

   [5] CB 80-81

   [6] CB 84-85

   [7] CB 88-89

   [8] CB 91

2. No additional written submissions or other documents were submitted to the Tribunal by the applicants, or on their behalf by their migration agent.

3. The Primary Applicant’s claims to fear persecution were rejected by the Tribunal on the basis that it was not satisfied that he had been truthful about his experiences and asserted fear of persecution.  The Tribunal gave extensive reasons for its findings[9].  The Tribunal also placed weight on the fact that the Primary Applicant had not provided any documentary evidence to support his claims, in circumstances where the Tribunal had formed the view that it would have expected the Primary Applicant to have had certain documents in his possession and readily available to submit to the Tribunal. The Tribunal observed that the Primary Applicant had been represented by a registered migration agent[10].

   [9] CB 96-99 at [13]

   [10] CB 99 at [15]

4. The Tribunal was not satisfied that the Primary Applicant had a well-founded fear of persecution in China, or that he was entitled to complementary protection under the Migration Act 1958 (Migration Act)[11].

   [11] CB 101 at [20]

5. The Tribunal noted separately, in addressing the applicant at [19][12] that “the second named applicant has not made any claims for protection”. The Tribunal found that the applicant did not have a well-founded fear of persecution either on the basis of his own claims, or on the basis of his membership of the family unit of the Primary Applicant.

   [12] CB 101

6. Accordingly the decision under review to refuse to grant the Primary Applicant, and the applicant, a protection visa was affirmed.

The present proceedings

1. These proceedings began with a show cause application filed on 24 December 2014. The application was filed, apparently by the Primary Applicant, one day outside the period prescribed by s.477(1) of the Migration Act.

2. In an affidavit filed with it (which I received as evidence), the applicant states, relevantly, that he needs an extension of time because he was unable to file his application because the Court was closed.  I explored that issue with the applicant at the bar table, and he was not able to throw any light upon the issue of the Court being closed;  however, he did tell me that he only turned 18 on 23 December 2015, and because of his bad relations with his father, the application was delayed.  Counsel for the Minister contended that an extension of time should be refused because the show cause application lacks merit.

3. I concluded, however, that given the very short delay outside the prescribed period, the applicant’s legal disability and the lack of any prejudice to be suffered by the Minister, an extension of time should be granted in the interests of the administration of justice. I therefore ordered that time be extended pursuant to s.477(2) of the Migration Act. In making that decision, I did not embark on any exploration of the merits of the application. The matter then proceeded as a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

4. The application contains one ground:

   I applied for a protection visa as a dependant family of my father, who was the main applicant in the application.  Due to my bad relationship with my father, he did not let me submit my own refugee claims, and therefore I did not have the opportunity to appear before the Tribunal to present my own evidence. (errors in original)

5. Essentially, the applicant contends that he lost an opportunity to present his own claims to the Tribunal because of his bad relationship with his father.  The applicant faces two difficulties.  The first is a legal one.  The Minister’s submissions explore whether any issue of jurisdictional error can be said to arise from the identified circumstances.  I do not think it can.  The Minister’s submissions traverse the arguments.  I agree with those submissions. 

6. The applicant’s sole ground of review can be paraphrased in terms that the Tribunal’s decision was affected by jurisdictional error because he had his own claims for protection, but he was not able/chose not to advance those claims because of his father. Why the applicant’s relationship with his father prevented or dissuaded the applicant from not advancing his own claims, is not revealed by the applicant but in any event would be immaterial.

7. In the terms expressed by the applicant, there was no jurisdictional error by the Tribunal proceeding the way it did.

8. It appears that what the applicant really seeks is an opportunity, one might say a further opportunity, to put before the Tribunal his own claims to fear persecution. However, the Court does not have jurisdiction to remit the applicant’s case to the Tribunal unless satisfied that the Tribunal’s decision is affected by jurisdictional error.  

9. Having regard to the way in which the Primary Applicant and the applicant completed the protection visa application form, the manner in which the claims were presented to the delegate, and in the conduct of each of them before the Tribunal, the applicant did not at any time seek to advance any of his own claims for protection.  The response to the resumed hearing invitation also indicated to the Tribunal that the applicant no longer wished to give evidence and present arguments at the resumed hearing.  Accordingly, the applicant cannot succeed in any argument that the Tribunal failed to consider his claims for protection, or that the applicant was in any way denied procedural fairness by the Tribunal in the conduct of its review[13].

   [13] cf SZSXV v Minister for Immigration [2014] FCCA 1584; SZTIN v Minister for Immigration [2015] FCCA 1972

10. It might further be suggested that jurisdictional error arises in circumstances of third party fraud stultifying the exercise of the Tribunal’s power[14]. Whilst SZFDE was an instance where the established fraudulent conduct of a third party led to a finding of jurisdictional error by the Tribunal, the case does not stand for any broader proposition that “fraud” (however that term may be understood) vitiates a Tribunal’s decision where it affects a review applicant’s presentation of claims.

    [14] see SZFDE v Minister for Immigration [2007] HCA 35; (2007) 232 CLR 189

11. SZFDE does not assist the applicant in this case, first of all because nothing amounting to fraud has been alleged by the applicant, or implicitly arises from the claims or matters deposed to by the applicant in the affidavit.  Fraud giving rise to jurisdictional error must involve an element of dishonesty, and has been described as amounting to a “deliberate attempt by the agent for improper motives to deceive the appellant and to prevent her from attending the Tribunal hearing”[15]. The applicant claims that:

    Due to my bad relationship with my father, he did not let me submit my own refugee claims, and therefore I did not have the opportunity to appear before the Tribunal to present my own claims.

    [15] SZMGX v Minister for Immigration [2009] FCAFC 67, [22]

12. At its highest the applicant appears to be alleging that he was not permitted by the Primary Applicant to raise his claims. This is quite unlike cases of third party fraud which involve representations made by a third party, often a person claiming (falsely) to be a migration agent, which have the effect of enticing a review applicant not to take particular steps in the conduct of his or her review before the Tribunal. The party against whom conduct has been alleged with the effect of depriving the applicant of an opportunity to present his claims is his father, the Primary Applicant.

13. The applicant’s second difficulty is a practical one.  I asked him that if he had had an opportunity to present claims to the Tribunal, what those claims would have been.  He had some difficulty with that question.  When I asked him if his claims would have been based upon his practice of Falun Gong, he told me that he is not a Falun Gong practitioner.  It transpired that any fear of harm held by the applicant is based upon the asserted Falun Gong practice of his parents, in particular, his mother.  His father had dealt with those claims in the protection visa application.  It follows logically that the applicant was properly included as a member of the Primary Applicant’s family group. 

14. The court book (which I received as evidence) discloses that both applicants were invited to a hearing before the Tribunal.  Initially, both attended, but the hearing was aborted.  When the hearing resumed on a later date, only the Primary Applicant attended.  There is nothing before me to explain that course of events.  However, on the basis that the applicant has no claim for protection, other than as a member of his father’s family group, in my opinion he suffered no practical disadvantage from any difficulties he had with his father at the time of the review. 

15. For those reasons, I have concluded that the show cause application should be dismissed. 

16. I will so order, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on 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 $3416, 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 twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  8 March 2016