MZXJV v Minister for Immigration
[2007] FMCA 964
•22 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXJV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 964 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – Tribunal denied Migration Agent access mistakenly at commencement of hearing – practical injustice – denial of opportunity to put case – whether genuine invitation to hearing – application allowed. |
| Migration Act 1958, ss.422B, 425 |
| Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 MZXBG v Minister for Immigration & Anor [2006] FMCA 1618 Re Minister for Immigration and Multicultural Affairs Ex parte Lamb (2003) 214 CLR 1 |
| Applicant: | MZXJV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 577 of 2006 |
| Judgment of: | McInnis FM |
| Hearing dates: | 26 October & 28 November 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 22 June 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
| Counsel for the First Respondent: | Mr C J Horan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be changed to “Minister for Immigration and Citizenship”.
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 29 March 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 577 of 2006
| MZXJV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 29 March 2006.
In its decision the Tribunal affirmed a decision of the First Respondent not to grant the Applicant a protection visa.
The background information is not in dispute. The Applicant is a citizen of China. He entered Australia on 13 February 1997 as the holder of a subclass 456 business (short stay) visa. That visa was valid until 13 March 1997. Upon expiry of that visa the Applicant remained in Australia then as an unlawful non-citizen until located by officers of the First Respondent’s Department in July 2005. On 5 August 2005 the Applicant applied for a protection visa.
In his application for a protection visa, the Applicant claimed to fear harm or mistreatment from the local authorities and officers of the Communist Party in China (Court Book p.14). He claimed that he left China “for democracy, freedom, equity and justice” and that the people in China “never had human rights and the ruler never published the truth to the world” (Court Book pp.12-15).
A delegate of the First Respondent refused to grant the Applicant a protection visa on 14 October 2005.
On 14 November 2005 the Applicant applied to the Tribunal for review of the delegate’s decision and relied upon a further statement by the Applicant and submissions from his then Migration Agent (Court Book pp.39-48).
The Tribunal proceedings
The Tribunal conducted a hearing on 20 December 2005 and the Applicant attended. The Applicant sent further submissions and material to the Tribunal on 20 January 2006 (Court Book pp.80-87),
30 January 2006 (Court Book pp.88-89), 9 March 2006 (Court Book pp.90-91) and 21 March 2006 (Court Book p.93).
Having regard to the grounds relied upon and, in particular, the exclusion of the Applicant’s migration advisor, it is appropriate to briefly refer to the hearing and specific extracts. It is noted that in these proceedings which occurred over two days a tape recording of the hearing was played to enable both parties to make submissions arising from the tape recording (Exhibit “A3”). In my view, listening to the tape recording did not add a great deal other than some minor alterations to the transcript which had already been referred to and incorporated in the Court Book. To the extent that it is relevant I would augment transcript references with the words which appear to be clarified upon hearing the tape recording.
To understand the grounds of appeal and the transcript it is useful to note that the Applicant by a document entitled, “Appointment of Authorised Recipient” dated 8 November 2005 (Court Book p.43) appointed “Wei Chen” as authorised recipient. That person is a registered Migration Agent. Wei Chen is also named as the authorised recipient in the “Response to Hearing Invitation” dated 10 December 2005 (Court Book p.61) not only as the “authorised recipient” but also as the person named as someone else the Applicant wished to bring with him to the hearing. I do note however that in the Response to Hearing Invitation the following appears:-
“2d. Do you want to bring someone else with you to the hearing? Yes þ No ¨
If yes, what is their name? Gerry Lei (and/or Wei Chen)
This person is
¨ Relative þ Friend ¨ Other (eg. migration agent) (Migration Agent)”
(Court Book p.61)
I have referred to those documents as they clearly identify Mr Chen as the Applicant’s Migration Agent. In the transcript I should note that whilst Mr Chen is accurately referred to by the Tribunal the transcript refers to Mr Lei as Mr “Lay”. It is relevant to set out the following extracts from the transcript:-
“MS BOLAND: Thank you. Please be seated. (the Applicant), could you identify yourself. Thank you. And the other two gentlemen?
MR CHEN: I am Mr Chen and this is my assistant (indistinct)
MR LAY: Yes.
MS BOLAND: Are you solicitors? Migration agents?
MR CHEN: Migration agent.
MS BOLAND: Do we have any written authority that you're acting for the applicant?
MR CHEN: We (indistinct) article with the authority.
MS BOLAND: Which one is Mr Chen?
MR CHEN: Yes.
MS BOLAND: Which one? You're Mr Chen. And this gentlemen?
MR CHEN: My assistant, Jerry Lay.
MS BOLAND: We allow one adviser to represent the applicant.
MR CHEN: Yes.
MS BOLAND: So whoever is representing the applicant can sit beside the applicant. Which one of you is.
MR CHEN: Jerry.
MS BOLAND: I beg your pardon?
MR CHEN: Jerry (indistinct) Lay.
MS BOLAND: I beg your pardon? The gentleman's full name, please.
MR CHEN: Jerry Lay.
MS BOLAND: All right. Can I have your full name, if you're the adviser that is representing the applicant today, and I will ask you to remove yourself from the table. Thank you.
(Transcript lines 1 - 45 Court Book p.64)
MR CHEN: All right.
MS BOLAND: I will ask you, if you wouldn't mind, waiting outside. Thank you.
MR CHEN: I wait outside?
MS BOLAND: Yes. Thank you.
MR CHEN: Okay.
MS BOLAND: Do we have this gentleman's full name?
INTERPRETER: Yes, that's Jerry Lay, this one.
MS BOLAND: Mr Lay, is your name?
MR LAY: Yes.
MS BOLAND: You're a qualified migration agent?
MR LAY: Not his agent.
MS BOLAND: You are not a qualified migration agent?
MR LAY: I'm assistant.
MS BOLAND: You're not a qualified migration agent?
MR LAY: No.
MS BOLAND: Well, you can't represent the applicant.
MR LAY: I'm just - I be here like for personal friends.
MS BOLAND: All right. Well, I will have to ask you - if you are not a registered migration agent, then you can't represent the applicant ‑ ‑ ‑
MR LAY: On the form, we just filled form like personal otherwise, not - with Chen be here as a registered agent.
MS BOLAND: All right. Well, I will ask you to leave the room and then for Mr Chen to come in then. If you're not the applicant's registered migration
(Transcript lines 1 - 45 Court Book p.65)
agent then you can't represent him here today.
MR LAY: On form we just filled like friends, personal friends, not - I be here not like agent, not like agent, just like a personal friend.
MS BOLAND: All right. Well, if you're a personal friend ‑ ‑ ‑
MR LAY: Yes, that's ‑ ‑ ‑
MS BOLAND: - - - I will now ask you to wait outside and I will call you in if the applicant - if you're here as a personal friend, this is a confidential hearing, and I will now ask you to wait outside, please.
MR LAY: But on the form it say we can stay inside the court.
MS BOLAND: The tribunal decides who remains in the room, and I will now ask you to wait outside. Thank you. If the applicant's registered migration agent wishes to be in the room, as his formal representative, then he may ask (indistinct) Excuse me, through the tribunal, sir, if you wish to speak in the hearing, please speak through the tribunal and the interpreter will interpret what you say.
MR LAY: Yes. On the form, as we understand it, the form (the Applicant) signed, it means we can bring close friend or agent.
MS BOLAND: That is correct, and the tribunal decides who remains in the room during the hearing. So you're here in the capacity as friend. Is that correct?
MR LAY: Yes.
MS BOLAND: All right. I will now ask you to wait outside.
MR LAY: Okay.
MS BOLAND: Thank you. The other gentleman, is he here as an adviser? Is he here in a formal capacity as an adviser today?
MR LAY: Yes.
MS BOLAND: He is. Would he like to remain in the room with the applicant?
MR LAY: That depends on you.
(Transcript lines 1 - 45 Court Book p.66)
MS BOLAND: Well, if he is here as the formal adviser representing - perhaps if you ask Mr Chen to re‑enter the room, thank you. Show this gentleman outside and ask Mr Chen to re‑enter the room. Mr Lay, I ask you please to (indistinct) at this stage.
MR LAY: I want to explain what he said.
MS BOLAND: You don't understand what I've just said. Is that correct? I will say this again. Mr Lay, would you please leave the hearing room now so that the tribunal hearing can proceed. Through the tribunal, please.
INTERPRETER: I signed a contract with them and to ask them to representing me.
MS BOLAND: Yes. The tribunal has noted that this gentleman is your friend. The hearing is confidential and the tribunal has asked your friend to wait outside while the hearing proceeds.
INTERPRETER: I just explained to you that I signed contract with them and they are representing me as a migration agent.
MS BOLAND: All right. Well, the gentleman that just spoke to me said that he is not a migration agent and he is here in the capacity of your friend. If Mr Chen is your representative and he is a registered migration agent then I have invited him to come back in the room and clarify ‑ ‑ ‑
INTERPRETER: Your assistant has authority to go out and call Mr Chen.
MS BOLAND: Yes. Perhaps if you could ‑ ‑ ‑
(THE APPLICANT): Move here?
MS BOLAND: That's okay. While we are waiting for Mr Chen to come into the room, I will explain to you that - while we are waiting we can't swear anyone in yet either. As soon as the hearing officer returns to the room the tribunal will explain to you how the hearing is going to be conducted and then talk to you about your application.
INTERPRETER: It seems strange ‑ ‑ ‑
MS BOLAND: Excuse me ‑ ‑ ‑
INTERPRETER: - - - because it's my first time coming here.
(Transcript lines 1 - 45 Court Book p.67)
MS BOLAND: (The Applicant), if you have any questions or comments, if you could direct them to the tribunal.
(THE APPLICANT): Sorry.
TRIBUNAL OFFICER: Mr Chen we can't locate. (indistinct) to call him. I think he may have left the building.
MS BOLAND: All right. Well, we will proceed and then - does he know to knock on the door if he comes.
TRIBUNAL OFFICER: When I finish here, I will just go back out and see Mr Lay and if he has located him, because he had his phone switched off, so I'm not sure.
MS BOLAND: All right. Well, what we will do is we will commence the hearing and then when Mr Chen is located we will invite him into the hearing. We might change that to friend, if that is what Mr Chen is ‑ ‑ ‑
INTERPRETER: Can I wait until my agent comes? Can we wait?
MS BOLAND: What we might do is I will explain the proceedings and then we will see if he is available. If his phone is turned off we may not be able to locate him. All right. I will ask the tribunal officer to, first of all, swear in Madam Interpreter and then the applicant. Thank you.”
(Transcript lines 1 – 26 Court Book p.68)
There is no dispute that Mr Chen was requested to leave the Tribunal hearing though submissions were made concerning the legal consequences of that request. It is also noted from the hearing transcript that the Tribunal could not locate Mr Chen and an officer advised the Tribunal that it was believed that he may have “left the building”. The exchange set out earlier in this judgment is relevant where the Tribunal officer advised that Mr Chen had left the building (see Transcript lines 5 - 25 Court Book p.68) set out above.
The transcript then reveals that with the aid of an interpreter the proceedings continued. It is further relevant to note that the Tribunal stated,
“If at any stage during the hearing you are unclear as to a question that the tribunal has put to you, please indicate that directly to me and I will repeat the question. I will start by clarifying some of the information about your general background as contained in your protection visa application. Your date of birth is 1 January 1964 and you were born in Shanghai. Is that correct?”
(Transcript lines 14 - 19 Court Book p.69)
The transcript reveals that Mr Chen eventually returned. So much is clear from the following,
“MS BOLAND: I will just finish getting this answer. I will be one moment.
TRIBUNAL OFFICER: Sorry.
MS BOLAND: That's okay. Stay there.
INTERPRETER: (indistinct)
MS BOLAND: We are going to clarify that.
INTERPRETER: Okay. I have my political opinion. The political opinion I held the Chinese government cannot accept that.
MS BOLAND: All right. If you would like to come in now. Do you mind moving to ‑ ‑ ‑
INTERPRETER: I will move.
MS BOLAND: Thank you. I will ask the other gentlemen, Mr Lay, to remain outside, thank you. Mr Chen, if you would like to come to the table and I will seek your clarification. Mr Chen, would you please wait outside.
MR CHEN: I am Mr Chen.
MS BOLAND: Mr Chen. Mr Lay, would you please wait outside. Thank you.
MR CHEN: Do you want me to go out as well?
MS BOLAND: No.
MR CHEN: You want me to stay.
MS BOLAND: Mr Chen, would you please come to the table.”
(Transcript lines 9 - 42 Court Book p.72)
“TRIBUNAL OFFICER: Do you want me to (indistinct)
MS BOLAND: No, but perhaps if the hearing (indistinct)
TRIBUNAL OFFICER: Okay. Thank you.
MS BOLAND: Thank you.
MR CHEN: Ms Boland, the thing I want to say ‑ ‑ ‑
MS BOLAND: Just excuse me for a moment, please.
MR CHEN: Yes.
MS BOLAND: Mr Chen, I understand that you are the applicant's registered migration agent. Is that correct?
MR CHEN: Yes.
MS BOLAND: All right. Are you representing him today at this hearing?
MR CHEN: Me, because I've actually ‑ ‑ ‑
MS BOLAND: Could you just answer that question, please.
MR CHEN: Yes.
MS BOLAND: You are?
MR CHEN: Yes, I am representing (the Applicant).
MS BOLAND: All right. We will now proceed. So could you please continue.
INTERPRETER: I can't remember, because I ‑ ‑ ‑
MS BOLAND: You were saying that the PRC government would not accept your views.
INTERPRETER: Yes. My view is that there's no human rights in China. They only have a one‑party system back in China and there's no freedom of media.”
(Transcript lines 1 - 44 Court Book p.73)
Apart from the obvious confusion concerning Mr Chen the Migration Agent in the extracts set out above, it is useful for reasons that will become apparent to otherwise set out the following extracts from the Tribunal illustrating the responses given by the Applicant to questions asked by the Tribunal. The following extract in my view illustrates the nature and extent of the exchange:-
“MS BOLAND: Let's focus on your experience and if you were to return to China now who would harm you and why.
INTERPRETER: My political opinion or my political view will never change; therefore the Chinese communist authority will persecute me.
MS BOLAND: Anything else you would like to say?
INTERPRETER: I have my belief; and not only that, I also put into practice. Since I left China to Australia, in 1999 I participated in the memorial movement or memorial activity for the June 4th Movement and also I published some articles which expressed my political views on some publications. Also I joined in some democratic seminars and those sorts of meetings. I would like to show you some photos.
MS BOLAND: Would you like to explain the photos.
INTERPRETER: The purpose is to prove that I participated in joining those activities, which is not only I have the thought; however, I also put into by action. Because of this, just like that person who is the secretary of democratic movement, this person made a speech in the senate this year and he said, "I've been in Australia for 16 years and I'm an Australia citizen." Due to his democratic view the Chinese government does not allow him to enter into China. When he was invited to the hearing he was a bit hesitant whether to go or not, because he was worried.
MS BOLAND: How does this relate to you?
INTERPRETER: Please let me finish. As you know with the cultural revolution and the fall and April 5th Movement Chen Yonglin who stated that, or alleged that, there are a lot Chinese spies in Australia. He also stated that for all those people who participated in the democratic movement the Chinese consulate has a detailed record of them, because he was doing that job before. Also as Mr Yonglin has said, one of his friends, due to the involvement of him in Australia, when he went back to China to attend a wedding, he was”
(Transcript lines 10 – 45 Court Book p.12)
“questioned and threatened by the PSB member. In the end he had to avoid attending those kinds of activities.
And that one of my friend in Ankwia his name is (indistinct) recently he was sentenced by the Chinese authority for five years imprisonment - he was holding a hunger strike in the prison - because he published some articles which involved his opinion or he insisted on his own opinion. So the Chinese authority persecuted him in that way. Also another thing is I came out of detention centre - on 23 November there was an incident happened in detention centre.
There is a female whose name is … from Fujian. On that day, 23rd, she applied for refugee status formally. The next day, 24th, the afternoon, someone called and claimed to be from Chinese consulate, frightened her and asked whether she is applying for refugee status and told her not to say anything bad about the Chinese government, otherwise, "If you go back, we will punish you," and the conversation lasted for about 10 minutes. She had already told her migrate agent from that incident.
The newspaper of this, April and May, there was article about Department of Immigration disclosed information of those protection visa seekers to the Chinese authority, causing the Chinese authority went straight into detention centre and questioned those people. That caused the final straw of the suicide, committing suicide as approval, that incident. All these things cause fear - cause my fear. I felt, even though I have left the detention centre, that there is Chinese official from the consulate (indistinct) I wasn't there. I hope that the government of Australia can investigate that matter.
MS BOLAND: Is there anything else you would like to add?
INTERPRETER: I have a habit of cutting articles from the paper. So for the last few years I've been watching China's situation. While I was watching the situation in China I also cut the articles from paper about those analyses and sent back to some friends back in China. I have a friend who holds visa category 457, his surname is Chen, because he took two discs with him, one is about the burning, self‑burning, in Tiananmen Square and one is about - the title is Nine Commandments. After he took those two discs back his wife was threatened by the Chinese authority and the company back in China was confiscated, so now he cannot go back.
The local PSB warned him, "If you come back again then at least we will ask you to go labour camp for three years." As we know, in China labour camp you don't have to go through the court system, and it's illegal and there's no human rights. And I did the same, I sent articles back and my friend also was”
(Transcript lines 1 – 45 Court Book p.13)
“threatened by the Chinese authority. Because I'm outside China I'm still sending these documents back, but I use another way of doing it. My friend give me the address of his uncle, his uncle had passed away, and he asked me not to put my name down when I send things over.
Because, based on my own experience - I have been to Singapore and now I'm in Australia, experience tells me that in China people have no rights. So if anything happens the people, ordinary people, can only listen to the government, the government's propaganda. Due to my belief, I had to use a different way to communicate or to contact with my friend. So everything I said before, the main thing is I cannot change my opinion. My opinion is formed based on my experience and what I see. I will tell you in details about how I formed my own opinion. If I want to state how I formed my opinion then I will have to tell you about my experience.
MS BOLAND: The tribunal have a lot of information about the cultural revolution and I don't require any further information about that period. Perhaps you could explain to the tribunal - let me finish my (indistinct) thank you - rather than how you formed your opinion, perhaps you could explain to the tribunal what is your political opinion.”
(Transcript lines 1 – 20 Court Book p.14)
After that exchange it is clear that the Applicant provided general information concerning China to the Tribunal and the Tribunal notes that it has information concerning that. Of the 17 pages of transcript it would appear that approximately 5.5 pages of transcript occurred before the Migration Agent returned.
After the hearing the Applicant by letter dated 20 January 2006 (Court Book pp.80-81) made further submissions in support of the application. He attached to those submissions the following,
“1.Additional information as the outline for interview for RRT hearing
2.Key introductions about some articles published on Chinese newspapers including my photos, and explanations about my pictures taken in Melbourne
3.Certified copy of my article Why we should not forget ‘The 4th of June’ published on the Pacific Times Chinese Newspaper on 24/06/1999 and qualified translation into English
4.Certified copy of my article My essay about 40 Anniversary of the Cultural Revolution published on The Epoch Times Newspaper on 13/01/2006 and qualified into English”
The Applicant provided a further submission in support of the application dated 31 January 2006 (Court Book pp.88-89) followed by a further submission dated 9 March 2006 (Court Book p.90) attaching a copy of an article allegedly published by the Applicant on 7 March 2006 on a web site and a copy of a newspaper article.
The Applicant then provided further information by facsimile transmission dated 21 March 2006 (Court Book p.93) where he states in part,
“I really could not understand why did not you send a fax to my agent in advance to let us know that you will give us a limited time to submit any additional documents until now? And how could you only give us one day to prepare and lodge documents before the dateline?
…
Thanks for your time to deal with my case. But one day is not enough for me. I still have a lot of words to say, and I prefer talk to you face to face.”
The Tribunal decision
The Tribunal was not satisfied the Applicant had a well-founded fear of persecution for reasons of his political profile or for any other Convention reason.
Its findings were accurately set out in the First Respondent’s contentions as follows:
“7.1The Tribunal accepted that the applicant’s family had a difficult time during the Cultural Revolution, but noted that this phase of China’s history had ended officially in December 1978 [CB104.5]. Accordingly, the Tribunal did not accept that the applicant faced a real chance of persecution for such reasons, noting that the applicant had been a student or employed until his departure from China [CB99.8, 104.7].
7.2In relation to the applicant’s account of his political activities in China, the Tribunal noted that much of the applicant’s evidence related in general terms to there being no human rights in China [CB104.8]. The Tribunal did not accept that the applicant’s level of activity suggested that he had a high profile or would come to the adverse attention of the authorities in China for reasons of his political activities [CB104-105].
7.3The Tribunal found that the applicant could have lodged an application for a protection visa at an earlier date, and that this delay in seeking protection was relevant in assessing the genuineness or the depth of the applicant’s claimed fear of persecution [CB105.4].
7.4In relation to the applicant’s activities since he lodged his protection visa application, the Tribunal did not accept that those activities were based on a genuine commitment to political activism, and found that he participated in the activities because he believed that it would strengthen his claims [CB105.7]. The Tribunal found that there was only a remote chance that the applicant would be involved in such political activities or would publish his book if he returned to China [CB105.8]. Further, and in any event, the Tribunal was required by s.91R(3) of the Migration Act 1958 to disregard such behaviour in assessing the applicant’s claims [CB105.9].
7.5The Tribunal was not satisfied that the applicant had been persecuted in the past for reasons of his political profile, and found that the chance that he would be persecuted for that reason in the reasonably foreseeable future was remote [CB106.5].”
Grounds of the application
The Applicant relies upon the following grounds:
“1.That the Tribunal failed to afford the applicant the proper procedural fairness during the hearing by improperly excluding the applicant’s Migration Advisor from the hearing. The applicant’s protection application was severely compromised by the exclusion of this migration advisor.
2.A further failure to afford procedural fairness occurred when the applicant was misled by the interpreter regarding the exclusion of the Migration Agent. The applicant was misinformed by the interpreter as to the reasons for the exclusion.
3.The Tribunal further failed to afford procedural fairness by failing to suspend or stop the hearing for the Migration Agent to be recalled from outside the hearing room.”
Grounds 1 and 3 – The exclusion of the Migration Agent – failure to adjourn hearing
Applicant’s submissions
Although self-represented the Applicant was assisted by an interpreter. He relied upon written submissions filed 30 August 2006.
Apart from making reference to the transcript in some detail where it is obvious that the Applicant’s Migration Agent was wrongly excluded in the midst of some confusion by the Tribunal, the Applicant also relied upon correspondence. The first a letter dated 20 December 2005 (Exhibit A1) to the officer of the Tribunal from the Applicant where complaints were made concerning the procedure followed by the Tribunal and in particular the exclusion of the Migration Agent. The Applicant claimed to have been confused during the course of the hearing and thereafter prevented from properly presenting his claim.
The Applicant then referred to a response from the Tribunal dated 10 January 2006 (Exhibit A2) which addressed the complaint concerning the exclusion of the Migration Agent and refused to reconstitute another Tribunal to hear and determine the Applicant’s review.
So that it is clear the correspondence to which I have just referred relied upon by the Applicant was received by the Court in circumstances where the Applicant was self-represented and the correspondence provided further information elaborating on the Applicant’s concerns.
The Applicant expressed concern that the agent was not permitted to attend the hearing and claimed that he was unable to answer questions “quickly and accurately”. He confirmed that this was his first hearing of this kind. Reference was otherwise made to the manner in which the Tribunal hearing was conducted which appeared to go beyond the complaint concerning the exclusion of the Migration Agent.
Though raised as a separate ground, it seemed that the Applicant did not place great emphasis on the claim that he was misled by the interpreter regarding the reasons for exclusion of the agent.
The Applicant also referred to the brochure he received from the Tribunal entitled, “What is a Hearing?”. In that brochure under the heading, “Can I Bring Someone with me to the hearing?” the following appears:-
“If you have an adviser assisting you with your application, they can come to the hearing with you. They will usually be asked if they wish to say anything after you and any witnesses have given evidence.
… You may also bring a friend or relative or other support person to the hearing. If they are not going to give evidence on your behalf they will usually be allowed to remain in the hearing room during the hearing.”
The Applicant submitted that at the hearing he was denied the advantage of an adviser to assist or a friend being permitted to remain at the hearing.
It perhaps should be noted that at the hearing before this Court I permitted the Applicant’s friend to assist the Applicant effectively as a McKenzie friend during the hearing. This was the same friend who had accompanied the Applicant to the hearing though who was ultimately excluded by the Tribunal from the hearing.
When dealing in oral submissions with the initial removal of the Applicant’s Migration Agent from the hearing, the Applicant not only claimed that to be a mistake but also referred to it as a “malicious act”. He then elaborated on that by referring to the further conduct of the hearing by the Tribunal. He complained that when the Migration Agent returned to the hearing the member did not explain why he had been asked to leave the room and why he was invited to return. The hearing he claimed commenced at 10.09 and concluded at 11.18 am. The Migration Agent he claimed was not permitted on return to make submissions on behalf of the Applicant. Reference was made to the extract from the transcript set out earlier in this judgment from page 73 of the Court Book when Mr Chen returns and after indicating that he represented the Applicant does not appear in the transcript to have then made or have been permitted to make submissions on behalf of the Applicant. The Applicant claimed that this was a denial of natural justice.
The Applicant did claim to be interrupted on a number of occasions whilst he was trying to explain his case.
The Applicant emphasised that when Mr Chen had left the Tribunal hearing he specifically asked the Tribunal, “Can I wait until my agent comes? Can we wait?”
As indicated in the extract from the transcript (Court Book p.68) the Tribunal did not agree to that request but rather proceeded to explain the proceedings and stated, “then we will see if he is available”. The Tribunal otherwise states, “If his phone is turned off we may not be able to locate him. Alright.” The Tribunal then proceeds to swear in the interpreter.
The Applicant otherwise relied upon the extract from the transcript set out earlier in this judgment which reveals that prior to swearing in the interpreter the Tribunal initially indicated it would wait and stated, “We can’t swear anyone in yet …” It is then after being advised by the Tribunal officer that Mr Chen was not available that the Tribunal proceeded in the manner described. The Applicant claims that apart from being denied natural justice as a result of the removal of his Migration Agent and the failure of the Tribunal to seek submissions from the agent upon return, the Applicant was also unable to give evidence as effectively as he may have wished given this unsettling experience.
The Applicant noted that whilst he made post hearing submissions, he reiterated on a number of occasions that he wished to have a re-hearing and that this was refused. It is sufficient for present purposes to perhaps refer to the last facsimile transmission noted earlier in this judgment dated 21 March 2006 (Court Book p.93) where the Applicant relevantly states,
“Thanks for your time to deal with my case. But one day is not enough for me. I still have a lot of words to say, and I would prefer talk to you face to face.”
First respondent’s submissions
The First Respondent submitted that the exclusion of the Migration Agent is not sufficient to constitute jurisdictional error and does not amount to a denial of a fair hearing to the Applicant.
It was noted that the circumstances leading to the exclusion of the Applicant’s Migration Agent were “the result of miscommunication and confusion as to the respective roles of the persons who accompanied the Applicant to the Tribunal hearing”. It was argued that at the commencement of the hearing there were “some ambiguous exchanges between the Tribunal, Mr Chen and Mr Lei (Court Book pp.64-67). It was noted the Tribunal attempted to bring Mr Chen back into the hearing room and that took some time due to the difficulty of locating Mr Chen. It was submitted the Applicant does not have an entitlement to be represented before the Tribunal “subject to any applicable requirements and procedural fairness”. Section 422B of the Migration Act 1958 (the Migration Act) provides in Division 4 of Part 7 (Conduct of Review) is taken to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Reliance was placed upon the decisions of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 and the decision of this Court in MZXBG v Minister for Immigration & Anor [2006] FMCA 1618.
It was argued that the absence of the Migration Agent from the hearing room for part of the Applicant’s evidence does not constitute contravention of any provision of Division 4 of Part 7 of the Migration Act. It was further submitted that “to the extent that it is relevant the Migration Agent’s for this limited period did not amount to any denial of a fair hearing to the Applicant”. It was argued the Applicant’s Migration Agent was present “for the majority of the hearing and was not denied an opportunity to make submissions or present arguments to the Tribunal.”
It was otherwise argued that the evidence given to the Tribunal prior to the return of the Migration Agent did not involve anything that was “critical to the Tribunal’s ultimate decision”.
It was further submitted in any event that, “the Applicant and his Migration Agent were given an opportunity to send further written submissions and other material to the Tribunal after the hearing by which time the Applicant’s Migration Agent would have been able to listen to the hearing tapes.”
The post hearing submissions it was argued reiterated the evidence and arguments made by the Applicant at the hearing, specifically that there were no human rights and freedoms in China under the one party system of government.
It was argued the Tribunal did not force the Applicant’s Migration Agent to leave the Tribunal but rather “the Tribunal initially asked the Migration Agent to leave the hearing because of its misapprehension that the Applicant was seeking to the represented by two Migration Agents or advisers and the Migration Agent acquiesced and left the hearing”.
It was further argued that the Response to Hearing Invitation was ambiguous in relation to the respective roles of Mr Lei and Mr Chen.
Further, it was argued there is nothing to suggest the Applicant was “severely comprised by the absence of the Migration Agent from the hearing room during the part of the Applicant’s evidence to the Tribunal as is alleged in ground 1 of the Application for review.”
Reference was made to the transcript and it was submitted that “the Applicant’s evidence during the period in which Mr Chen was absent from the hearing room contains nothing to sustain” the assertion that he was not able to answer questions “quickly and accurately” or that the Applicant had any difficulty answering questions. It was argued there was no undue interruption by the Tribunal and the Applicant has not demonstrated practical injustice as a result of the manner in which the hearing was conducted including the temporary absence of his agent. Reference was made to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs Ex parte Lamb (2003) 214 CLR 1 where the Court relevantly states:-
“36 The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.
37A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (HK) v Ng Yuen Shiu16 was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs.17 A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
38No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.”
To the extent that the Applicant may have sought to rely upon s.366A of the Migration Act, it was argued that only applies to hearings of the Migration Review Tribunal and that Division 4 of Part 7 of the Migration Act does not contain any direct equivalent in relation to the Refugee Review Tribunal. Therefore, it was submitted “the Applicant did not have any statutory entitlement to assistance at the hearing from his friend Mr Lei”. It was noted in any event no argument is raised in relation to that in the grounds of review but rather reference made to Mr Chen the agent. The exclusion of Mr Lei from the hearing therefore was one within the general discretion, it was argued, of the “Tribunal in controlling its own procedure”.
The First Respondent submitted the Tribunal’s proceeding could not be characterised as being arbitrary or a misuse of authority or a deliberate contravention of the law which appeared to be raised by the Applicant. Specifically it was argued although not raised directly in the grounds that there can be no basis upon which the Court is able to conclude that there is apprehended bias on the part of the Tribunal. It was argued the Tribunal was not required to adjourn the hearing pending the return of the Migration Agent and the absence of the Migration Agent did not involve a denial of a fair hearing to the Applicant.
Reasoning
I accept that s.422B applies for the reasons given in my own decision referred to earlier in this judgment by the First Respondent.
However, the invitation to hearing must be a genuine invitation. The genuineness of the invitation will depend upon the manner in which the hearing is conducted. The wrongful exclusion of the Migration Agent occurred at an early stage of proceedings in circumstances where this was the first experience of a hearing by the Applicant who attended the meeting with an agent and found himself in a position where he was self-represented. The Tribunal’s information to the Applicant set out in the brochure, “What is a Hearing?” specifically advises the Applicant that if he has “an adviser assisting the application” then the adviser “can come to the hearing with you”. The document further informs the Applicant that “they will usually be asked if they wish to say anything after you and any witnesses have given evidence”. The Applicant appears to also have according to the document the right to “bring a friend or relative or other support to the hearing”.
In the present case the Migration Agent has been excluded and when the Migration Agent returns the Tribunal upon discovering that the other person is a friend excludes that person as well.
I can see no reason why the Migration Agent or the friend should have been excluded. It is clearly contrary to the Tribunal’s own advice to Applicants in these circumstances.
Whilst I accept that there is no equivalent to s.366A applicable to the Refugee Review Tribunal proceedings, it seems to me that consistent with the Tribunal’s advice to the Applicant in the brochure to which I have refereed and noting that the Applicant attended on this occasion with the assistance of a Migration Agent that it is a denial of natural justice to then exclude that Migration Agent from the hearing without reason in circumstances where it has clearly been a mistake. I do not see anything ambiguous in the information provided by the Applicant to the Tribunal as clearly whilst both names are referred to as persons who the Applicant wishes to bring to the hearing in the “Response to Hearing Invitation” form, the words “Migration Agent” appear under the name of Mr Chen who at all material times in addition has been named as the “authorised recipient” in documents before the Tribunal. A proper reading of the material would have alerted the Tribunal to the fact that Mr Chen was the Migration Agent and he should not have been excluded from the hearing.
Section 422B in my view does not diminish the responsibility of the Tribunal to ensure that the invitation to appear at a hearing is a genuine invitation. The exclusion of the Migration Agent (and the friend) in my view constitutes a denial of natural justice and non compliance with s.425 to the extent that the invitation to appear was not genuine. Section 425 provides for an invitation to the Applicant to appear before the Tribunal “to give evidence and present arguments relating to the issues arising in relation to the decision”. If a Migration Agent engaged to assist the Applicant is excluded from the hearing then by inference the Applicant is thereby precluded from presenting the arguments contemplated by a genuine invitation pursuant to s.425 of the Migration Act.
Having heard the tape recording of the proceedings and having read the transcript carefully I am concerned however to determine whether in any event there has been what might be described as “practical injustice” or any real denial of an opportunity for the Applicant to put information or argument sufficient to establish that the Applicant has suffered detriment.
In the present case whilst I have noted the post hearing submissions by the Applicant and that he had raised general points during the exchange with the Tribunal, I am satisfied that there is sufficient to demonstrate that in this instance the Applicant has been denied the opportunity of putting his information or argument in a reasoned planned manner which may well have occurred had the Migration Agent not been excluded from the proceedings. The confusion which arose at the commencement of the proceedings in my view would clearly have unsettled the Applicant and although it is clear that many of the statements made during the hearing and indeed in post hearing submissions are of a general and vague nature, that does not mean that the Applicant if given a fair hearing in the presence of his Migration Agent and perhaps a friend would not have been able to engage in a meaningful and better directed exchange of information with a skilled Tribunal member. It is the exchange at a hearing “face to face” which would enable the Applicant to provide information in response to well directed questioning from an experienced and competent Tribunal. The Tribunal hearing process itself will often draw out from an Applicant the more relevant and pertinent matters to the application. The exclusion of the Migration Agent in the present case has led to what can only be described as an unsatisfactory start to the hearing and the absence of that agent for a period of 20 minutes and the absence of any submissions made by the agent on return lead me to conclude that there has been a practical injustice in the present case and the effective denial of an opportunity by the Applicant to place relevant information before the Tribunal. Although strong arguments have been advanced by the First Respondent that there was no evidence of lost opportunity or practical injustice to the Applicant, this in my view in the present case seems to place an onus on the Applicant as to what he may have said if the Migration Agent had been present in answer to questions which may have been put by the Tribunal in the presence of that agent. This requires far too much speculation on the part of the Applicant in circumstances where a Migration Agent rather than simply leaving the Tribunal hearing, if permitted to stay, could have advised the Applicant and/or made submissions to the Tribunal when concerns were expressed as to the vague or general nature of the information provided by the Applicant in support of the claim. The fact remains that in the present case due to the manner in which the hearing was conducted and as a result of what I found to be a denial of natural justice and non compliance with s.425 of the Migration Act, I am not satisfied that the Applicant has been given an opportunity to present his case and in my view has suffered a detriment of a kind sufficient to constitute jurisdictional error.
Where a Migration Agent appears on behalf of an Applicant and is wrongly excluded then the preferable course would be for the hearing to be temporarily adjourned so that the Migration Agent can be located and return to the Tribunal. It is not desirable for the Tribunal to simply proceed in the absence of a Migration Agent who the Tribunal had ordered to leave the Tribunal. Upon the return of the agent in my view the proceedings at the very least should have recommenced after a short break to enable the Applicant to settle down. Instead in the present case upon the return of the Migration Agent the Applicant’s friend who would appear to have been notified as a person the Applicant wished to attend the hearing was also excluded and I have no doubt this would have provided further discomfort to the Applicant and would have had the tendency to interfere with his thought processes and the quality of information provided to the Tribunal.
For the reasons given I am satisfied that it is appropriate to set aside the decision based upon these grounds and remit the matter to a differently constituted Tribunal.
Ground 2 – Whether applicant misled by interpreter
Having regard to my findings and decision in relation to Grounds 1 and 3 it is not necessary to consider this ground in detail which in any event was not pursued with any vigour by the Applicant
Conclusion
It follows for the reasons given that orders should be made setting aside the Tribunal decision.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 June 2007
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