FEDERAL COURT OF AUSTRALIA

SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 393

MIGRATION – visa application authorised to be completed by appellant’s agent, completed on instructions and containing incorrect information – visa application valid – application for review completed by appellant’s agent without any authority – application for review invalid

Migration Act 1958 (Cth) ss 98, 424A

Migration Regulations 1994 (Cth) Reg 2.07(3)

Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566

NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199

SZGJO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL

NSD 2411 OF 2005

BENNETT J

11 APRIL 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

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

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     Before the Federal Magistrate the appellant, who was represented by counsel, asserted that the application for a protection visa filed in his name was not valid.  The asserted basis of invalidity was that the application was not completed by the appellant or on his instructions.  It was drafted by his migration agent but not signed by the appellant and contained incorrect information.  The additional ground of appeal was a failure on the part of the Refugee Review Tribunal to comply with s 424A of the Migration Act 1958 (Cth) with respect to an application to review the decision of the Minister’s delegate to refuse a protection visa.

The application to the Tribunal

2                     It is not suggested that there was any failure on the part of the Tribunal to comply with the procedural requirements in the Act to notify the appellant of the hearing of the application for review.

3                     The appellant relied upon evidence before the Federal Magistrate.  The evidence was that the appellant had given instructions to his migration agent to lodge a protection visa application.  The appellant had not been informed that the protection visa application had been refused and did not know of the decision of the delegate refusing his application.  He had given no instructions to lodge any application to the Tribunal and the purported application to the Tribunal was not made on his instructions.

4                     Driver FM accepted the appellant’s evidence.  In particular, his Honour accepted at [31] that the appellant did not authorise the making of the review application.  He did not sign it and it was not made on his instructions.  His Honour concluded that there was no valid review application and that the Tribunal had no jurisdiction to make any decision on it.  Driver FM declared the application to the Tribunal invalid and ordered that a writ of certiorari issue quashing the decision of the Tribunal.

5                     Ultimately, Mr Hirsch who appears for the appellant, properly conceded that there was no error in the Federal Magistrate’s approach. Mr Hirsch conceded that in view of the Federal Magistrate’s conclusion on this aspect, the ground of appeal asserting jurisdictional error on the part of the Tribunal in failure to comply with s 424A of the Act and failure on the part of the Federal Magistrate to consider such compliance does not arise.

The application for a protection visa

6                     Before the Federal Magistrate, Mr Hirsch submitted that the visa application was not “filled in” as required by s 98 of the Act and was not “completed” as required by Regulation 2.07(3) of the Migration Regulations 1994 (Cth).  He contended that the visa application was not signed by the appellant or by anyone authorised by him.  The residential address details given for the appellant were false and were not authorised by him and much of the detail of the protection visa claims made in the purported visa application were inventions of the agent and were not authorised by the appellant.  In the circumstances, Mr Hirsch submitted that the protection visa application was incorrect and invalid. 

7                     The Federal Magistrate referred to NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 and s 98 of the Act.  He found on the evidence that the appellant had authorised the migration agent to make a protection visa application on his behalf.  His Honour concluded at [38] that the instructions were general and that the appellant expected the migration agent to do everything necessary to lodge a protection visa application on his behalf.  That authority extended to signing the application on behalf of the appellant.

8                     His Honour did not make a finding of a common purpose to mislead the Minister with a false protection visa application, as had been found in NAWZ, or of bad faith.  His Honour did, however, apply the principle in NAWZ to find that the appellant was, by the application of s98 of the Act, responsible for the false application.  As the Full Court stated at [16], the appellant is fixed with responsibility for the actual content of the false application filled in on his behalf.

9                     Mr Reilly, who appears for the Minister, submits that the appellant’s protection visa application meets the test of substantial compliance with the Act and Regulations.  The fact that the appellant did not sign it himself and it did not contain his correct address or correct details of his history does not render the application invalid (Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 at [34]–[45]).

10                  The Full Court in Bal upheld the principle that a “substantial compliance” requirement is applicable to the visa application form.  Substantial compliance is to be assessed by reference to the purpose of the form in eliciting the applicant’s claim to be a refugee within the Convention and the questions posed in the form were only guidelines to that end.  In Bal the Full Court held that it was sufficient that only the “bare bones” of Mr Bal’s claims were outlined in the form, namely that the applicant had a well-founded fear of persecution at the hands of the Turkish police for reasons of religion, membership of a particular social group and political opinion, in particular by reason of his being a Kurd and a Christian.

11                  In this case, the appellant had made a claim in the visa application of persecution based on the practice of Falun Gong.  The appellant submitted that the detail of his claims as recorded in the visa application were false.  At [19] of his decision, the Federal Magistrate noted the appellant’s oral evidence that he had told his migration agent about his alleged persecution in China due to his practice of Falun Gong.  It is clear that, while the details of his claim in the visa application were incorrect, the core claim of persecution by reason of his practice of Falun Gong was correct.  Accordingly, the visa application contained the “bare bones” of the appellant’s claim.

12                  It was sufficient that the application recorded the Convention basis of the appellant’s claim to be a refugee.  In my opinion, the fact that the application was not signed by the appellant, his residential address was incorrect and that the details provided of his claims were not authorised do not prevent “substantial compliance” from being achieved.  The migration agent’s name and address were completed and correct (s494D of the Act).  It was a false application but it was, in formal terms, a valid application(NAWZ at [16]-[18]).

13                  In different ways, the appellant asserts that there was no authorisation of the specific visa application and that, consequently, it was not valid.  Mr Hirsch seeks to equate the facts concerning the visa application with those concerning the application for review to the Tribunal.  He asserts error in the finding of validity of the former and of invalidity of the latter.

14                  The Federal Magistrate drew a distinction between the authorisation given to the agent to complete or lodge a visa application and the lack of authorisation to file any application for review.  That has not been shown to be in error.  The grounds of appeal and written submissions do not properly reflect the Federal Magistrate’s reasons and the distinction there drawn between the authority given to the agent to file the visa application and the lack of any authorisation to file the application for review.

15                  Section 98 of the Act provides:

“Completion of visa application

 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.”

16                  The appellant authorised and caused his migration agent to fill in the visa application form on his behalf.  While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies.   Section 98 does not require a covert purpose to mislead.  The Federal Magistrate was not in error in finding that, in the circumstances, the visa application was valid. 

17                  The appellant relies upon the conduct of the migration agent who ‘deprived the appellant of the opportunity of a proper merits review’.  That does not render the visa application invalid.  I agree with Mr Hirsch that the consequences for the appellant are most unfortunate, to say the least.  I note that the Federal Magistrate has accepted that the actions of the migration agent were without instructions and fatal to the proper consideration of the appellant’s visa application.  Although the application to the Tribunal was invalid, the appellant is now out of time in which to lodge a fresh application for review of the delegate’s decision.  It has been suggested that the appellant may consider an application to the Minister pursuant to s 48B of the Act.

18                  The appeal is dismissed with costs.

Associate:

Dated:              11  April 2006