NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 Like much other current litigation, this is a dispute between an applicant for a protection visa and the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'). However, this dispute is unusual, both in terms of its critical facts and the issue to be determined. The question is not whether a valid application for a protection visa was properly refused but whether the application was valid at all. Background 2 The applicant, who has been code-named 'NAWZ' in compliance with s 91X of the Migration Act 1958 (Cth) ('the Act'), but whom I prefer to call 'the applicant' in these reasons, claims to be a Pakistani national who arrived in Australia in February 2001 'when my ship stopped at Sydney'. A statement dated 30 July 2003, typed in English at the applicant's dictation while he was being held at Villawood Detention Centre (as he still is), stated he had been employed as a 'sales person' for the past 32 years. In the statement, he said he rang his family from Sydney 'to let them know that my last and final stop will be in Auckland before my retirement from the company'. The applicant said he rang again before he left Sydney; however, he was advised by his family 'not to come back to Pakistan because I have serious threat and my life is in danger'. He went on to explain that his father had been blamed by a political party for killing the son of a member of that party, with the result that the party had threatened to kill the applicant upon his arrival at the airport. The applicant said he then decided to stay in Sydney. 3 In his statement, the applicant said that, after a few days, he met an 'Afghan interpreter' whose correct name, he accepts, is Sayar Dehsabzi. He said Mr Dehsabzi told him he worked as an immigration consultant/interpreter and advised him to lodge an application for a protection visa. The applicant said in the statement that Mr Dehsabzi told him 'immigration is giving priorities to Afghan asylum seekers'. He claimed he did not know 'that he is going to apply for me as a Afghan asylum seeker'. 4 The statement went on: 'Until December 2002, I didn't received any correspondence or response from DIMIA. I contacted him and ask him about my status in this country. He said that you are legal. He did not response well and told me to paint his house and he will do me a favor in return. He runs a proper office located at Eastwood NSW Sydney. Recently I have known that he has lodged a lot of cases under Afghan categories. I know a lot of people by face who have lodged their cases through him. When I contacted him again in January 2003, to ask him why he has done this to me. He threatened me in response. I want to be a legal person and I lodged my case by myself and contacted DIMIA. I was called for an interview by DIMIA and I attended it. The response of my false oral statement to DIMIA was my solicitor who said to me if I say anything wrong about him to DIMIA in my interview then I must be ready for tough consequences.' 'DIMIA' is, of course, the Department of Immigration and Multicultural and Indigenous Affairs. 5 In oral evidence, the applicant said the reference in his statement to 'my solicitor' was a reference to Mr Dehsabzi, although he knew that Mr Dehsabzi was not in fact a solicitor. The applicant also said he paid Mr Dehsabzi $2,200. 6 On 30 January 2003, through a solicitor/migration agent, Adrian Joel, the applicant lodged with DIMIA an application for a protection visa. This application was accompanied by a photograph of himself. It contained particulars of his life and background; it has not been suggested that they were incorrect. 7 In this document, the applicant's previous occupation is given as 'sailor'. This description is more consistent with his having arrived by ship en route to Auckland, and his statements at interview, than the previous description of his occupation as a 'sales person'. The latter description may have been a misunderstanding between him and the person who typed his statement. The difference is unimportant, except as a reminder about the danger of automatically treating a discrepancy in translated material as a matter affecting a person's credit. In the present case, the applicant was unable to check the accuracy of the statement; he does not read English. 8 On 21 May 2003, DIMIA wrote to the applicant requesting him to attend an interview on 10 June 2003. The interview was conducted by Michael McElroy, an Onshore Protection officer of DIMIA, with the assistance of a Pashtu interpreter. The applicant was accompanied by a friend. The interview was tape-recorded. 9 A summary of the interview compiled by Mr McElroy reveals that the applicant claimed to have been employed by the P&O shipping company for 33 years and to have arrived in Australia on the 'Oriana'. He said he lived at Blacktown, sleeping in the garage at a friend's home. The applicant repeated his reason for not wanting to return to Pakistan. 10 Mr McElroy's summary went on: 'I showed the applicant the photograph that I had obtained from the PV file of Akhtar Mohammad Waisi (11/12/1949), CLF2001/27511. This photograph is attached to the top of this file note. I asked the applicant if he could identify the person in the photograph and he said it was a photo of him. I advised that this photograph was connected to an application for a PV by another person in the name Akhtar Mohammad Waisa [sic]. He said that he had not lodged in the name Waisi. He was asked if he had an explanation as to why the photograph had come to the attention of the DIMIA. He said that he lost his wallet when sleeping on a park bench about one or one and a half years ago, the wallet contained photographs, and someone must have used these photographs to lodge the application. He did not report the loss of the passport to the police or anyone else. He said that he would sleep on park benches when he did not have anywhere to stay. I pointed out that according to his application he was living at an address in Lakemba during this time. He denied that he stayed at this address. I advised the applicant that I had concluded he had lodged an application for a PV previously in the name Waisi and he was prevented by the Migration Act (Section 48A) from lodging another application. I advised that his application in the name [name stated] did not meet the guidelines to allow the lodgement of a second application. He denied lodging the previous application several times.' 11 On that same day, Mr McElroy wrote to the applicant, at the Blacktown address, informing him of the following: 'I refer to your application of 31 January 2003, attempting to lodge a further application for a Protection visa while you are in the migration zone. Your earlier application for Australia's protection under the Refugees Convention (as amended by the Refugees Protocol) using the name Akhtar Mohammad Waisa [sic] (11/12/1949) was refused on 12 June 2002. Under section 48B of the Migration Act 1958 the Minister may allow a person to apply again for a Protection visa if he thinks it is in the public interest to do so. Your purported application for a Protection visa was considered against the Guidelines for purported further applications for a Protection visa subject to s48A and request for Ministerial intervention under s48B. However, your request did not meet these Guidelines and, consequently, you cannot apply again for Protection visa.' 12 At about that time, the applicant was taken into detention. On 30 July 2003, he lodged an application for review of Mr McElroy's decision with the Refugee Review Tribunal ('the Tribunal'). However, by letter dated 10 September 2003, the District Registrar of the Tribunal questioned whether the Tribunal had jurisdiction to review the decision. The District Registrar referred to s 48A of the Act. Subsection (1) of that section reads as follows: 'Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone.' 13 On 16 September 2003, the applicant sent the Tribunal a typed letter which said: 'I am writing this letter to you in response of a letter from RRT which was written to me on 10th September, 2003 and was handed over to me on the same day. I understood that RRT is not convinced with [name] being my real name. In my Protection Visa application I have explained to DIMIA thoroughly. Because of your refusal RRT is not taking matter into their review. As I mentioned in my application that I have only one name [name stated]. I have not used any other name for the sake of anything. I am a Pakistan citizen. My passport and national ID card is with my case officer. What other major proof would you require to accept my claim. An Afghan national who lodged an application for a Protection visa using my photograph and someone else name. He told me that he will lodged an application for me. But when he lodged an application in the name of Akhtar Mohammad Waisi, I was unaware. He signed the application for me without my consent. If you are still not satisfy with the detail I have given to you. You can ask PNO [sic] company for whom I worked for 32 years. I was a seaman with PNO [sic] and was known as [name stated]. I wouldn't mind if you ask my detail from them. Once again, I like to notify you that I am a Pakistan National by birth. Please contact me if you need any further information regarding this matter.' 14 On 9 October 2003, the District Registrar wrote to the applicant again, stating that the Tribunal had decided it had no power to determine his application. The District Registrar enclosed a copy of reasons for decision given by a member of the Tribunal, Don Smyth. After setting out the history of the matter and referring to s 48A of the Act, Mr Smyth said: 'Section 411(1) of the Act defines certain decisions as RRT-reviewable decisions. Further, s.414(1) of the Act provides that, if a valid application is made under s.412 for review of an RRT-reviewable decision, the Tribunal must review the decision. While a decision to refuse to grant a protection visa is RRT-reviewable in accordance with s.411(1)(c), section 47(4) makes it clear that a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant a protection visa. The Tribunal is satisfied from the circumstances set out above that the applicant is not the subject of an RRT-reviewable decision with respect to his purported application for a protection visa dated 30 January 2003. While the applicant has sought to advance arguments as to why he should not have been prevented from making a valid application, the Department's decision that that application was not valid and its refusal to consider it are not RRT-reviewable decisions. The Tribunal finds that the application for review lodged by the applicant on 31 July 2003, which clearly relates to the purported protection visa application of 30 January 2003, is not a valid application for review of an RRT-reviewable decision. The Tribunal has no power to consider this application.' The proceeding 15 On 15 December 2003, the applicant filed an application in this Court in which he sought the following relief: '1. A declaration that the Application made by Akhatar [sic] Mohammad Waisi on 28th May, 2001 to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) Visa is not an Application that was made by the Applicant in these proceedings. 2. An order that the decision of the Department of Immigration and Multicultural and Indigenous Affairs dated 10th June, 2003 refusing to allow the Applicant in these proceedings from applying for a Protection Visa to be set aside. 3. An order that the Minister for Immigration and Multicultural and Indigenous Affairs cause an appropriate officer of the Minister for Immigration and Multicultural Affairs to consider the Application made by the Applicant in these proceedings and make a determination of that Application according to law.' 16 In an accompanying affidavit, the applicant referred to the application in the name of Akhtar Mohammad Waisi ('the Waisi application'). He admitted that the photograph annexed to the Waisi application was a photograph of himself but said 'I have no knowledge as to the circumstances as to how this photograph was annexed to that Application except as set out in [his earlier letters]'. He concluded: 'I deny that I am the person referred to as Akhtar Mohammad Waisi and deny that I made an Application for a protection visa using this name.' 17 At the hearing of the application, the applicant represented himself, assisted by an interpreter. Mr Stephen Lloyd of counsel appeared for the Minister. Mr Lloyd agreed that the issue for determination was that suggested by the applicant's affidavit: whether or not the applicant 'made' the Waisi application. Mr Lloyd contended, rightly I think, that, if this was the case and in the absence of a determination by the Minister under s 48B, s 48A(1) barred consideration of a fresh application on behalf of the applicant, even under a different name. If this was not the case, he accepted, DIMIA had erred in refusing to consider the protection visa application on its merits; in which case, the Court ought to grant relief along the lines sought in the applicant's application. 18 Mr Lloyd cross-examined the applicant. He also called Mr Dehsabzi to give evidence. Having reviewed the whole of the evidence, written and oral, I have come to the conclusion that the Waisi application was lodged by Mr Dehsabzi on behalf of the applicant, and with his knowledge and consent. Consequently, the applicant 'made' the Waisi application, within the meaning of s 48A(1) of the Act. 19 I have reached that conclusion bearing in mind its serious consequences for the applicant. Reasoning 20 The applicant claimed before me that, to his knowledge, no protection visa application was made on his behalf until January 2003. This was almost two years after the date of his arrival in Australia, notwithstanding that, at about the time of his arrival (according to him) he had formed an intention to remain in Australia, received advice from Mr Dehsabzi that he should seek a protection visa and paid Mr Dehsabzi the sum of $2,200. The applicant said under cross-examination that he only knew that Mr Dehsabzi was an interpreter. However, he later admitted that he asked Mr Dehsabzi to 'file a case' for him. He said: 'Yes, I gave him money but on the basis of Pakistani and I told him that I am from Pakistan and I have just come from the ship but I did not know what leave he would take while in the case.' 21 This is consistent with the applicant's expectation of hearing from DIMIA expressed in his statement quoted at para 4 above. The applicant said before me that he gave two photographs to Mr Dehsabzi, which also suggests that he asked Mr Dehsabzi to lodge an application on his behalf. He later gave similar photographs to Mr Joel. 22 In cross-examination, the applicant denied any discussion with Mr Dehsabzi about 'making a case as an Afghani asylum seeker'. However, he claimed this thought had occurred to him. He said in his oral evidence: 'I did tell myself that if someone that lies on the basis of Afghani asylum seeker he can succeed.' 23 The applicant added: 'but while I'm Pakistani why I would do that?' In evaluating that comment, one must remember that the applicant was speaking of a time when the Taliban government remained in power in Afghanistan. 24 In his written statement, the applicant attributed to Mr Dehsabzi a comment about DIMIA giving priority to Afghan asylum seekers. It seems too much of a coincidence that, after that comment and the applicant's independent realisation of the advantage that might be gained by presenting an application as an Afghan, Mr Dehsabzi should have done this on the applicant's behalf but without his knowledge or consent. 25 It is clear that Mr Dehsabzi presented the Waisi application to DIMIA. The documentary evidence includes a copy of a receipt, issued to Mr Dehsabzi by DIMIA, in respect of the fee for an application for a protection visa in the name of Akhtar Mohammad Waisi. The date on the receipt is difficult to read, but a copy of the application itself is in evidence. It is dated 23 May 2001. It bears a receipt stamp of 28 May 2001. The application gives Mr Waisi's address as 3 Illarangi Street, Carlingford. Mr Dehsabzi gave evidence that this was the address of a house owned by himself and other members of his family. He agreed some entries in the application form were in his handwriting. 26 Mr Dehsabzi claimed never to have met Mr Waisi, but he later said that Mr Waisi worked at the Carlingford property 'and he was sleeping there for a few days I think'. Mr Dehsabzi said Mr Waisi was working as a painter. That is interesting; the applicant claimed to have worked for Mr Dehsabzi as a painter, but he did not say where. 27 Mr Dehsabzi denied receiving any substantial sum of money from the applicant or Mr Waisi. He said he acted only as an interpreter and was paid a translation fee of about $300 to $350. I do not accept that evidence. On Mr Dehsabzi's own account, he went well beyond the role of an interpreter in relation to the Waisi application. I think there is a strong probability that he was the instigator and author of this application, in consideration of a substantial fee, that he made the application on behalf of the present applicant and, with his knowledge and consent, used an Afghan identity and pseudonym. It does not matter whose idea it was to take that course. I think both Mr Dehsabzi and the applicant thought this would improve the chances of success. It was a joint decision. 28 The Waisi application was not made in the true name of the applicant. However, once it is concluded that it was made on his behalf and with his knowledge and consent, the application must be regarded as having been 'made' by him. Section 48A(1) applies to it. 29 After the above material was written, I received a further submission from the applicant. That submission set out, for the first time, a straightforward account of relevant events. The submission reads: '1. When I, [name], a citizen of Pakistan, meet with Mr Seyar Dehsabzi for the first time in 2001, I explained to him that, I came to Australia on a ship from Pakistan, and that my ship was gone, and I asked him to help me. 2. Mr Seyar Dehsabzi told me he can help if I pay him AD$2200. 3. Mr S Dehsabzi also asked me to work at a house belonging to him (as painter). 4. Mr Seyar Dehsabzi promised to get Permanent Residency of Australia for me in return for the money I paid and the work I was doing at his house. 5. Mr Seyar Dehsabzi also told me that in addition to the AD$2200 in future if I pay another AD$5000 to him, he will get Australian Citizenship for me. 6. Mr Seyar Dehsabzi never mentioned that he intended to lodge the Application for Protection Visa with the Department of Immigration, under Afghani Citizenship and under the name Akhtar Mohammed [sic] Waisi. All Mr S Dehsabzi asked for was a photo from me. 7. I never signed the Application that Mr Seyar Dehsabzi lodged with the Department of Immigration under the name Akhtar Mohammed [sic] Waisi, This can be verified by the Department of Immigration. 8. Wheather [sic] Mr Seyar Dehsabzi had mentioned the position of Afghani asylum seekers or not is irrelevant in my view, because he was the person who had lodged the application with DIMIA, Therefor [sic], he was solely responsible for misleading DIMIA and me. 9. During the coarse [sic] of the hearing, it was obvious that Mr Seyar Dehsabzi was lying about different issues. Therefore he is the one capable of lying not me. 10. After Mr Seyar Dehsabzi applied to DIMIA for Protection Visa on my behalf he told me, "I already lodged the Protection Visa Application for you, but don't tell anyone about this". 11. When I was detained by DIMIA officers and put to Villawood on my contact with Mr Seyar Dehsabzi, I told him that I will appeal to the Federal Court of Australia, his response was "do not appeal to the Federal Court, and keep your mouth SHUT".' 30 I think this account of events is substantially true, although I do not accept para 6. I accept that the applicant did not sign the Waisi application but he was happy for Mr Dehsabzi to apply on his behalf; that is why he paid him the money and worked at his house as a painter. 31 In my view, this latest submission confirms the conclusion I have previously reached. The proceeding should be dismissed with costs. I will so order. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.