FEDERAL COURT OF AUSTRALIA

SZIWV v Minister for Immigration and Citizenship [2007] FCA 1338

MIGRATION – appeal from a decision of a Federal Magistrate – non-attendance at hearing – whether the protection visa application was invalid – whether the Tribunal’s decision was authorised by the Act – appeal dismissed.

Migration Act 1958 (Cth) ss 45, 46, 47, 65

Migration Regulations 1994 (Cth) reg 2.07

Federal Magistrates Court Rules 2001 (Cth) Part 12

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

Minister for Immigration and Multicultural and Indigenous Affairs v WAIK (2003) 79 ALD 152 followed

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

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 distinguished

SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393cited

Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 cited

SZIWV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 770 OF 2007

LANDER J

5 SEPTEMBER 2007

ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against an order of a Federal Magistrate made on 12 April 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 27 October 2003 and handed down on 20 November 2003.  The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellant.

BACKGROUND FACTS OF THE APPELLANT

2                     The appellant was born on 8 April 1963 and is a citizen of Indonesia.  She arrived in Australia on 24 May 2003.  On 24 June 2003 she applied for a Protection (Class XA) visa which was refused by a delegate of the first respondent on 30 June 2003.  On 21 July 2003 the appellant then lodged an application for review to the Tribunal.  The Tribunal affirmed the delegate’s decision.

THE APPELLANT’S CLAIMS

3                     In her application for a protection visa, the appellant claimed that she was persecuted in Indonesia on the Convention grounds of race, namely, her Chinese ethnicity.  She claimed that since riots in May 1998 she had been afraid to go anywhere without someone by her side.  She claimed to have witnesses and experienced unfair and unjust treatment of Chinese by native Indonesians.  Her parents had to pay a lot of money to renew their ID and she herself had to pay double the price to renew her passport.  She further claimed that she faced difficulty with Muslims if she refused to donate money to them.  She cited one particular incident where she refused and the man yelled at her and returned the next couple of days, stating that she was a stingy lady like other Chinese and that she should be ashamed of her religion for not teaching her to be a generous person.  She claimed that she would face the same troubles during the next Election Day in 2004.  Finally, she stated that the Indonesian authorities discriminated against Chinese.  They would receive a report but not do anything about it.

4                     Aside from a brief cover letter from the appellant’s Migration Agent summarising her claims in her application to the delegate, the appellant did not submit anything further with her review application to the Tribunal.

THE TRIBUNAL’S DECISION

5                     In her application to the Tribunal, the appellant nominated an authorised recipient, Mr David Gunara Chen of Delta Migration and Management Services, to receive correspondence from the Tribunal.

6                     On 18 September 2003 the Tribunal sent the appellant an “invitation to hearing” letter, both to her authorised recipient and to her at her residential address (both by registered post), inviting her to a hearing on 27 October 2003.  Neither letter was returned to sender.

7                     The Tribunal said that it telephoned the appellant’s advisor in early October 2003 on three occasions leaving messages seeking news of the appellant.  The telephone calls are not relevant, however, to determine whether the Tribunal complied with the Act.  The appellant did not attend the hearing.

8                     The Tribunal proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) (the Act).

9                     The Tribunal set out the appellant’s claims taken from her protection visa application.  In its finding and reasons, the Tribunal considered these claims.

10                  The Tribunal said that although it accepted the appellant’s claim that she had bad memories of the May 1998 riots, the appellant herself had not suffered serious harm in any outbreaks of rioting in the past.  Nevertheless, the Tribunal accepted that the appellant had a real subjective anxiety about whether she might be harmed in the future given the sporadic outbreaks of violence and rioting in which harm had been experienced by ethnic Chinese.  The Tribunal went on to note, however, that independent evidence showed that ethnic Chinese were not specifically the targets of systematic harm in Indonesia.  The Tribunal was therefore not satisfied that the appellant, on grounds of race, had a well-founded fear of persecution.  After further reference to independent country information, the Tribunal concluded that this information did not indicate that authorities in Indonesia were unwilling or incapable of providing protection, even if random rioting in the future could result in harm to the appellant.

11                  The Tribunal then considered the appellant’s extortion claim.  Although the Tribunal recognised that extortion could occur for a Convention reason, it was not satisfied that this was such a case.  It found that, in any event, the appellant’s evidence did not suggest that she suffered serious harm in dealing with demands for money.

12                  The Tribunal concluded that the appellant had not suffered serious discrimination or harm in the past and did not have a real chance of being seriously harmed in the future.  It found that Indonesian authorities did not condone attacks on ethnic Chinese.  It further found if the appellant returned to Indonesia, she would not face harm or mistreatment amounting to persecution by reason of her ethnicity.

APPEAL TO THE FEDERAL MAGISTRATES COURT

13                  On 29 May 2006 the appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision.  She claimed that she had never received the Tribunal’s decision from the Tribunal which, as already noted, was handed down on 20 November 2003.

THE FEDERAL MAGISTRATE’S DECISION

14                  The hearing in the Federal Magistrates Court commenced in October 2006.  The appellant was unrepresented and gave evidence that the application for review sent to the Tribunal had not been signed by her.  She also claimed that she did not know what happened to her original protection visa until she was detained by the Department in May 2006.  At the suggestion of the Minister and pursuant to Part 12 of the Federal Magistrates Court Rules 2001 (Cth), the Court assigned counsel to assist her in the presentation of her case.

15                  After counsel was assigned, an amended application was lodged which abandoned all grounds in the original application.  In the amended application the appellant asserted that the application she had lodged for a protection visa was invalid, therefore, pursuant to s 47(3) of the Act, the first respondent through his delegate should have declined to consider the application rather than considering it on its merits, which he did.  The appellant therefore claimed that the Tribunal did not have jurisdiction beyond holding that the decision of the first respondent’s delegate was invalid and not permitted under s 47(3) of the Act.  The appellant claimed that the Tribunal erred in law by considering the application for a protection visa on its merits and by affirming the decision of the delegate of the first respondent.  The appellant contended that as the Tribunal’s decision was not authorised by the Act, it was infected with jurisdictional error.

16                  The appellant’s case was that the protection visa application (Form 866) “was invalid”.  She contended that the statutory declaration in the protection visa application was not completed as required by the directions in Form 866 as she was not aware that she was signing a statutory declaration; the contents were not interpreted for the appellant; and the declaration was not signed before a person who was eligible to witness the statutory declaration.  She argued that, in those circumstances, because of the effect of ss 45 and 46 of the Act and reg 2.07 of the Migration Regulations 1994 (Cth) (the Regulations), the appellant had not made a valid application.  The application must be made on the relevant form (Form 866).  Section 47(3) relevantly provides that the Minister “is not to consider an application that is not a valid application” and s 65(1) provides that the Minister can only consider an application on its merits if a valid application has been made. 

17                  The appellant did give evidence, however, that the substance of the claims appearing in the typed statement attached to the protection visa application (that she claimed to have never seen before) was correct.

18                  The Federal Magistrate held that reg 2.07 only requires substantial compliance with the directions in Form 866, not strict compliance (cf Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566; SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393).  The Federal Magistrate held that significantly more than the “bare bones” of the appellant’s claims were provided with the protection visa application and that there had therefore been substantial compliance.

19                  The Federal Magistrate held that the appellant signed the statutory declaration although she was not aware she was signing a statutory declaration.  He found that she did not read or speak English and that the statutory declaration was not translated to her.  The Federal Magistrate held that as the appellant had an agent who was authorised to act for her at the time the form was completed and lodged, and that the appellant signed the form in three different places, there was substantial compliance, notwithstanding any deficiencies in the completion of the statutory declaration (cf NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199).  In addition, he held that Parliament could not have intended such strict compliance, that the deficiencies noted in the statutory declaration would invalidate the application.  He found the protection visa application to be valid.  There was, therefore, no jurisdictional error.

20                  In addition, the Federal Magistrate held that the Tribunal decision was a privative clause decision and, for that reason as well, the application had to be dismissed.  That would, of course, follow from his first finding that there was no jurisdictional error.  In the further alternative, he held that had he found any jurisdictional error, he would not have been minded to grant relief in the circumstances of the case as “the applicant effectively sat on her hands for three years after she made her protection visa application, doing very little to follow it up.”

21                  Finally, he noted that the migration agent had “handled the applicant’s protection claim in a most unsatisfactory and unprofessional way” and therefore directed the Registrar of the Court to refer the papers in this matter to the Migration Agents Registration Authority.

22                  The appellant’s notice of appeal was filed in this Court on 3 May 2007.  The notice of appeal claims that she had not at that time received a copy of the judgment of the Federal Magistrate and that when she did, she would make a proper affidavit and notice of appeal.  The notice of appeal states that she would get legal advice as soon as she had received a copy of the judgment.  It further states that she is of the opinion that his Honour failed to take into consideration important issues which she would elaborate on upon receiving the judgment and reading the transcript.

23                  No amended notice of appeal and no affidavit have been filed.  The applicant appeared before the Federal Magistrate and was present when the Federal Magistrate delivered his ex tempore decision.  She therefore had notice of the decision and the reasons for his decision on that date itself.  She lodged her notice of appeal in the Federal Court exactly 21 days after this decision was made.  Thus it is that the Court is forced to speculate on the issues raised.

24                  No error has been demonstrated by the way in which the Tribunal exercised its statutory obligations pursuant to s 425(1) to invite the appellant to a hearing.  The Tribunal sent the invitation to hearing notice on 18 September 2003 to the appellant’s nominated authorised recipient’s address and her own address.  As it was sent by post, the appellant was deemed to have received it seven working days after its date (s 441C(4)).  By s 425A(3) and reg 4.35D(3), the hearing was not to take place until at least 14 days after the applicant received the hearing invitation.  The hearing date of 27 October 2003 complied with those regulatory obligations.

25                  The appellant’s case before the Federal Magistrate was that her protection visa application was no application because it did not comply with Form 866 and because the statutory declaration was signed before the protection visa application was completed.  The Federal Magistrate has found that she did sign the document but could not and did not read it, and it was not translated to her.  However, no finding has been made as to what the form contained when she signed it.  No finding has been made whether the statutory declaration was taken before an authorised person.

26                  However, the Minister argued that the absence of those findings and the findings made by the Federal Magistrate could not lead to the conclusion contended for by the appellant.

27                  In this case, there is no suggestion that the final application submitted to the delegate contained other than the substance of the appellant’s complaints.  This is also not a case like SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, where the appellant was advised of the hearing and advised not to attend.  Although she said she did not receive the invitation to hearing, the evidence was that it was sent to both her agent and herself.  The letter sent to her was not returned.

28                  The only question in this case is whether the signing of the blank application means that the application was invalid.

29                  Section 47(1) of the relevant Act requires the Minister to consider a valid application for a visa.  Section 47(3) precludes the Minister from considering an application that is not a valid application.  Section 65 requires the Minister, after considering a valid application for a visa, to grant the visa (s 65(1)(a)) or refuse to grant the visa (s 65(1)(b)).  Section 46 addresses the requirements for a valid application for a visa.   Regulation 2.07(3) of the Regulations provides that an applicant must complete an approved form in accordance with any directions on the form.  The prescribed form for a Protection (Class XA) visa is Form 866.  That form provides for a statutory declaration to be completed by the applicant.

30                  The Minister contended that the failure of the appellant to complete the form did not mean that the application was not valid.  Section 98 provides that a non-citizen is taken to have filled out his or her application form “if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.”

31                  In this case the application was filled out by the appellant’s migration agent’s secretary from information supplied by the appellant.  I think the Minister’s contention in that regard must be accepted.  The application may be taken to have been filled in by the applicant.

32                  The appellant said in her submissions to this Court that she signed the blank application in the presence of the migration agent’s secretary.  In her evidence before the Federal Magistrate she suggests, without making it clear, that she signed the blank application in the migration agent’s presence.  The appellant’s signature is witnessed by a person who has identified himself or herself as a “JP”.  The migration agent did not witness the appellant’s signature.  However, there is no evidence that the migration agent’s secretary is not that person or not a “JP”.  There is, therefore, no evidence that the application was not signed in accordance with the form’s own instruction.

33                  Even if there were, the Minister says that the decision made by the delegate of the Minister and the Tribunal are still valid.  Section 69 of the Act provides:

(1)       Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

(2)       If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.

34                  Section 47 is included in Subdiv AA.  It follows that non-compliance by the Minister with s 47(3) does not mean that the decision to refuse to grant the visa is not valid.  In Minister for Immigration and Multicultural and Indigenous Affairs v WAIK (2003) 79 ALD 152, the Full Court was concerned with an application for a protection visa which was said to have been signed by a person under the age of 18 and therefore was not a valid application because it was not completed in accordance with the directions on the form (Form 866).  The Full Court said at [29]-[31]:

²⁹                    However, s 69(1) is explicit so far as the requirements of subdiv AA and subdiv AB are concerned.  In the light of s 69, it cannot be said that the application for a protection visa signed by the Applicant was a nullity simply because he did not complete it in accordance with the directions contained on it.  No suggestion was made on behalf of the Applicant that he did not understand the nature of the application or that he did not have the capacity, even if he was under 18, to make an application for a protection visa.   The only contention was that, because the application form was not completed in accordance with the directions contained on it, it was not a valid application by reason of the operation of reg 2.07(3) and that, accordingly, the Minister was prohibited, by s 47(2), from considering the application since it was not a valid application.

³⁰                    If an application that is not a valid application for the purposes of s 46 is considered pursuant to s 65, the resultant decision is preserved by s 69.  The decision of the Minister’s delegate purporting to reject the application is a valid decision, even if it involved a contravention of s 47, because the decision was rendered valid by the operation of s 69(1): seeThayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297 at 33 [26] and Soondur v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 578 at 593 [49].

³¹                    The Tribunal had jurisdiction to review the decision of the Minister’s delegate under s 411(1)(c) because it was a decision to refuse to grant a protection visa.  The fact that the Minister was prohibited by s 47(2) from considering the application, assuming that it was not a valid application, does not mean there was no decision within the meaning of s 411(1)(c).  Whether or not the Minister was prohibited from considering the application, the Minister’s delegate did so and made a decision to refuse a protection visa.  There was no jurisdictional error on the part of the Tribunal even if the Applicant was under 18 and the application was not a valid application within the meaning of s 46 of the Act.

That decision is both on point and binding.

35                  A similar result was reached in NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199.  In that case, the Full Court said at [17]-[18]:

¹⁷                    We do not consider that the requirement in Reg 2.07 that the approved form must be completed ‘in accordance with any directions on it’ necessitates that any departure from those directions spells invalidity for an application.  It is unlikely to have been the purpose of the legislation: cf Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 at 390-391; to require the automatic invalidity of a visa application that an applicant has caused another to complete: cf s 98; but which is unsigned, for example, because of the paralysis of the applicant or, for that matter, of the oversight of the applicant or of his or her agent: cfLy v Minister for Immigration and Multicultural Affairs[2000] FCA 15 at [32].

¹⁸                    We do not consider that the irregular manner of filling in and signing of the false application resulted in the invalidity of the application.  It was a false application but it was, in formal terms, a valid application.

36                  The appellant did not have to strictly comply with reg 2.07 to create a valid application.  Substantial compliance was sufficient: Bal v Minister for Immigration & Multicultural Affairs 189 ALR 156; Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245.

37                  It follows that the appellant’s application was a valid application.  It follows that both the delegate’s decision and the Tribunal’s decision on review were authorised by the Act.  That was the conclusion of the Federal Magistrate.  No error has been demonstrated.

38                  The appeal must be dismissed and the appellant must pay the respondent’s costs.

Associate:

Dated:         5 September 2007