MZXRL v Minister for Immigration - [2008] FMCA 618

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXRL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 618

MIGRATION – Refugee Review Tribunal – applicant did not attend Tribunal hearing – whether migration agent fraudulently advised applicant not to attend – whether alleged migration agent existed.

Migration Act 1958 (Cth), s.426A

SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64

Applicant:

MZXRL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 929 of 2007

Judgment of:

Riley FM

Hearing date:

13 May 2008

Date of Last Submission:

13 May 2008

Delivered at:

Melbourne

Delivered on:

17 July 2008

REPRESENTATION

Counsel for the Applicant:

T V Hurley

Solicitors for the Applicant:

Australian Legal Advisory Centre

Counsel for the First Respondent:

Sharon Burchell

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed on 6 July 2007 and amended on 4 March 2008 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 929 of 2007

MZXRL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal. The applicant did not appear at the Tribunal hearing. The Tribunal proceeded to make a decision pursuant to s.426A of the Migration Act 1958. The applicant claims that she did not attend the Tribunal hearing because she was advised not to attend by a person she understood to be a migration agent. The applicant now seeks judicial review of the Tribunal’s decision on the grounds explained in the High Court’s decision in SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64. The other grounds set out in the original application and in the amended application were abandoned at the hearing before this court. That is, the applicant relies only on grounds 2.e and 2.g in the amended application. Those grounds concerned fraud by a migration agent.
In summary, the applicant claimed that Ms Jenny Chen acted as her migration agent in lodging her protection visa application. However, when it was refused, the applicant said that Ms Chen would not cooperate and the applicant said she found another migration agent, Stephen Chen. The applicant claimed that Stephen Chen told her not to attend the Tribunal hearing as it was a mere formality and the Tribunal regarded the applicant as a rat. Apart from the application for review, no documents were lodged with the Tribunal on the applicant’s behalf by either Jenny Chen or Stephen Chen.

The applicant’s claims to be a refugee

The applicant is a 35 year old citizen of China. She claimed that generations of her family, including herself, had been persecuted by the Chinese Communist Party for their Catholic faith. The applicant said that she had been denied university entrance and had only been able to obtain low level employment because of her faith. She said that in 2004, she was detained for 10 days and went through mandatory brain washing. More recently, she said that one of her church friends had disappeared.

The protection visa application

The applicant arrived in Australia on 5 November 2006 as the holder of a visitor visa. She lodged her protection visa application on

20 November 2006
. It included a typewritten statement signed by the applicant. The form was mostly handwritten but questions 40 to 44 were answered with typewritten responses that had been cut and pasted onto the form. The form stated that the applicant had been assisted in completing the form by Ms Jenny Chen of 83-87 Sydney Road Brunswick. Ms Chen is a registered migration agent.
However, the parts of the form dealing with agent details and agent consent, and authorised recipient details and authorised recipient consent, were left blank. In the form, the applicant, rather than Ms Chen, was nominated as the person to receive communications from the Department of Immigration and Citizenship (“the Department”). The question asking whether the applicant paid the person who assisted her in completing the form was not answered.

Ms Chen’s evidence in chief

Ms Chen was subpoenaed by the first respondent to give evidence. By agreement, because she was suffering from a health problem, Ms Chen gave evidence before the applicant. Her evidence was given orally and was as follows.
Ms Chen has been a registered migration agent since 1997. She first met the applicant in mid-November 2006, when the applicant walked into her office in Sydney Road Brunswick. The applicant asked Ms Chen to “do a protection visa for her”. Ms Chen asked the applicant her claims and the applicant described them to her. Ms Chen refused to act as a migration agent for the applicant. She had not done a protection visa application for years and “[Ms Chen] didn’t think it was a good case for [Ms Chen].” The applicant then left Ms Chen’s office.
Ms Chen thought she had not told the applicant that she was experienced in dealing with refugee applications, had not told her she would help her state her grounds for her claim for refugee status and had not told her that her claim was very strong.
The applicant returned to Ms Chen’s office a few days later and again asked Ms Chen to help her with her protection visa application. Ms Chen again refused. The applicant again left her office, but, after a day or two, returned for a third time. On this occasion, the applicant asked Ms Chen to translate her Chinese ID card and fill in her protection visa application form for her. Ms Chen is a qualified English-Mandarin interpreter. She did the translation of the ID card and filled in the form.
Ms Chen acknowledged that the handwriting on the form was hers, except for the applicant’s signature. Ms Chen disclosed on the form that she had assisted the applicant with completing the form. She had not put her details in the sections asking for agent details or authorised recipient details because she had only said that she would assist the applicant with filling in the form. The applicant had instructed Ms Chen to tick the box for the applicant herself to receive all written communications from the Department.
Ms Chen charged the applicant $200 for these services. Ms Chen produced a copy of a tax invoice from her firm to the applicant. It was dated 21 November 2006. It described the work done as “Filling protection visa application forms” and “Translation of Chinese ID card”. The invoice indicated that $200 was charged and paid by cash. Ms Chen denied that she had charged the applicant $4,800 to be paid in advance for the services she provided and denied that she had ever told the applicant she would charge her $4,800.
Ms Chen never told the applicant that she would act as her migration agent but had said only that she would help her to fill in the protection visa application form. She denied assisting the applicant with the typed statement that accompanied her protection visa application.
After she had filled in the form, Ms Chen did not contact the applicant but the applicant contacted her. The applicant did not ask Ms Chen why she had received no letters from the Department. Ms Chen filled in another form for the applicant which concerned permission to work.
Ms Chen said she did not know when the Department refused the applicant’s protection visa application. Ms Chen denied that she told the applicant not to worry about her application being refused, denied that she told the applicant that the Department often kills the majority of the cases without an interview and denied that she told the applicant that the Department kicks the applications to the Tribunal. Ms Chen denied that she had made promises to the applicant to make submissions to the Tribunal on her behalf.

Cross-examination of Ms Chen

Ms Chen gave evidence under cross examination as follows. She had completed the applicant’s protection visa application form as a migration agent, rather than as an interpreter. She said that she had not glued the typed answers to certain questions onto the form. She said that she had not done the typed statement that accompanied the applicant’s protection visa application.

The applicant’s affidavit evidence

In an affidavit sworn on 5 March 2008, the applicant described the circumstances surrounding her application for a protection visa as follows:
4. Owing to concerns I had about returning to China where I had fears of persecution, I sought the advice of someone who could assist me. On or about the middle of November 2006, I was introduced to a Ms. Jenny Chen of 83-87 Sydney Road, Brunswick whose agent number is 9794529.
5. Ms. Chen told me she was a registered migration agent and could help me. Furthermore, she said she had much experience in dealing with refugee applications. After explaining my situation to her, she said she would be able to help me state the grounds of my claim for refugee status under the United Nation’s Convention in a way that would satisfy the authorities. She advised me that my case was very strong given that what I told to her in my native language of Mandarin.
6. She advised me that her costs to do my case would be $4800 which I had to pay in advance. I did not have the money to pay her, however, my friend David Yao who is a local Australian citizen agreed to assist me as he is a fellow Catholic in Melbourne. Therefore, with the assistance of him, I agreed to engage Ms. Chen to be my representative and migration agent for my protection visa application. I visited her in her Brunswick home on 3 separate occasions during November 2006. I have paid her $4800 but I was not given a receipt as I felt embarrassed if I insisted on a receipt.
7. On or about 23 November 2006, I lodged my application for a protection visa with assistance of Ms. Chen. It was agreed that she would be my agent and she was authorised to receive all correspondence from the Department of Immigration. However, she advised the Department of Immigration that my contact address was my own, a fact which she never revealed it to me until I discovered it later.
8. On or about 28 November 2006, I received a letter from the Department of Immigration dated 24 November 2006 acknowledging receipt of the application.
9. After lodging my application, I did not hear from the Department of Immigration or from my migration agent Ms. Chen. I received neither an offer to appear before the case officer, nor an invitation to provide further documents in support. I made various enquiries of my Migration Agent by telephoning her and I was told by her that I had to be patient and wait as the Department of Immigration needed time to assess the case.
10. On 21 February 2007, I discovered my application had been refused as the notification to refuse my application was sent to my home address. I made enquiries as to why there was a decision without my having an interview and without being able to present any evidence of my claim, and why my agent Ms. Chen had no knowledge about the decision to reject my application.
11. To reinstate my confidence in Ms. Chen’s service, she advised me not to worry as Department of Immigration often acted so as to “kill” the majority of case without an interview and “kick” them to the Refugee Review Tribunal (“RRT”). She promised me she should would (sic) make submissions on my behalf to the RRT. …
Mr Yao, who the applicant claimed had assisted her by providing $4,800 to give to Ms Chen, was not called by the applicant to give evidence on her behalf. The applicant did not produce a receipt to verify the payment of $4,800 she claimed to have made to Ms Chen, or any bank record connected to a payment of $4,800.

The applicant’s evidence under cross examination

Under cross examination, and through an interpreter, the applicant said she was introduced to Ms Chen by a friend. On further questioning, she said that she went to Ms Chen’s office with two people, one male and one female. The applicant said she could not recall anything about them except that the woman may have had the surname Zhao. Neither person was called by the applicant to give evidence on the applicant’s behalf.
The applicant denied that Ms Chen had told her that she was not experienced in refugee applications and could not assist her to state her grounds. The applicant maintained that Ms Chen had told her that her case was very strong. The applicant denied that Ms Chen had refused to take on her case. The applicant denied that she had visited Ms Chen three times before Ms Chen agreed to help her fill out the protection visa application form.
When asked to look at the form where the agent and authorised details were blank, the applicant said that she could not understand English so had no idea what was in the form. It was put to the applicant that Ms Chen only assisted her in filling out the form and she was not the applicant’s migration agent. The applicant said that:
to me when she helped me fill out the form then she became my migration agent.
The applicant denied that Ms Chen had interpreted the whole form to her. She denied that Ms Chen had asked her where correspondence from the Department should be sent. However, she agreed that she did receive correspondence from the Department at her home address, as was requested on the form.
The applicant agreed that Ms Chen had translated her Chinese ID card. The translation is typed and is contained in the court book. The applicant said that she believed that Ms Chen had typed the written statement attached to her protection visa application and had typed the answers that were cut and pasted onto the protection visa form.
It was put to the applicant that Ms Chen had not told her that she would charge $4,800 for assisting with the visa application, as claimed in the applicant’s affidavit. The applicant said:
I must say that my memory had failed me to some extent but now I can recall very clearly I paid her $2,000.
It was put to the applicant that Ms Chen had said that she was only paid $200 in November 2006 for the translation of the ID card and the assistance with completing the protection visa application form. The applicant said she definitely recalled paying Ms Chen $2,000. When shown the tax invoice for $200, the applicant said her signature was not on it and she was not sure if she had seen the document before. It was put to the applicant that she had paid Ms Chen $2,000 on a later occasion. The applicant said that, from her recollection, she paid Ms Chen $2,000 on 21 November 2006.
The applicant was reminded that in her affidavit, she had said that she paid Ms Chen $4,800 in November 2006. The applicant said that she might have got mixed up about the amount of money she borrowed when she came to Australia and the amount she paid Ms Chen.

The lodging of the Refugee Review Tribunal application

Ms Chen’s evidence in chief

Ms Chen said she did not do the applicant’s case in the Tribunal and did not represent her. Ms Chen said the applicant did not instruct her to lodge an application for review in the Tribunal. Ms Chen said the applicant walked into her office and asked her to do her a favour, namely, to assist her in filling in the form for the application for review. Ms Chen said that she did so.
Ms Chen was shown the application for review in the court book. She confirmed that it was in her handwriting. She confirmed that the form had been faxed to the Tribunal from a fax machine that she shares with a Mr John Hose. It was faxed on 22 March 2007. Ms Chen said that she had ticked the no box in response to the question, “Do you have an adviser you authorise to act for you in relation to this application? (for example a migration agent)” because she did not represent the applicant and did not want to represent the applicant.

Ms Chen’s evidence under cross examination

It was put to Ms Chen that she had completed the application to the Tribunal as a translator. She said that she had just assisted the applicant by filling in the form. Ms Chen said, “She told me what she wanted to say and I put the detail for her.”

The applicant’s affidavit evidence

In her affidavit sworn on 5 March 2008, the applicant said:
She promised me she should would (sic) make submissions on my behalf to the RRT. Therefore I instructed her to lodge an application for review at Refugee Review Tribunal in February 2007.

The applicant’s evidence under cross examination

The applicant said that no one had translated to her the question, “Do you have an adviser you authorise to act for you in relation to this application? (for example a migration agent)”. The applicant acknowledged that she had received correspondence from the Tribunal at her home address.
There was no suggestion that Ms Chen had asked the applicant for any money in connection with the lodging of the application in the Tribunal. There was no re-examination of the applicant.

The hearing invitation and response

The Tribunal sent the applicant at her home address a hearing invitation dated 29 March 2007. It said that the Tribunal had considered the material but was unable to make a favourable decision on that information alone. It said that the Tribunal might make a decision without further notice if the applicant failed to attend the hearing which was scheduled for 16 May 2007.
A response to the hearing invitation was faxed to the Tribunal on

15 May 2007
. In answer to the question, “Do you want to come to a hearing?” both the yes and no boxes were ticked and the applicant requested a Mandarin interpreter. The section seeking details of any authorised recipient was left blank.

Ms Chen’s evidence in chief

Ms Chen said that the applicant had come to her office and asked her to fill in the response to hearing invitation form. Ms Chen agreed. She said that it was her handwriting on the form, except for the applicant’s signature. Ms Chen said that she did not translate the invitation to the applicant, but just asked whether she wanted to go to the hearing or not. Ms Chen said that she did not think she had told the applicant she was required to attend the hearing.
Ms Chen said that the applicant initially said that she wanted to attend the hearing, so Ms Chen ticked yes and said that a Mandarin interpreter was needed. Ms Chen said that the applicant then instructed that she was not going to go to the hearing, so Ms Chen whited out the tick in the yes box and ticked no instead. The original response was not put in evidence. The copy in the court book looks as though someone might have tried to white out the tick in the yes box, but the tick is clearly visible.
Ms Chen thought that she might have asked the applicant if she had an authorised recipient but thought she must have said no, or she would have put in the details. Ms Chen said that the applicant never mentioned to her that she was seeing another migration agent or getting advice from another migration agent and never mentioned a Stephen Chen to her. Ms Chen said the applicant never told her that Stephen Chen had advised the applicant to ask Ms Chen to fill in the response to hearing form and fax it to the Tribunal.
Ms Chen said that she had faxed the form to the Tribunal for the applicant. Ms Chen said that the applicant did not pay her for completing the response to hearing invitation form. When asked whether the applicant had ever asked her for a copy of her submissions and application to the Tribunal, Ms Chen said she had not done the applicant’s submissions to the Tribunal. She said she just filled in forms for the applicant and gave everything back to her.

Ms Chen’s evidence under cross examination

Ms Chen agreed under cross examination that the applicant had told her what she wanted in the form and Ms Chen had just inserted it for her. Ms Chen agreed that there had been a misunderstanding initially about whether the applicant wished to attend the hearing. However, Ms Chen said that, at first, she thought the applicant was going to attend, so she ticked yes, but then the applicant told her she would not attend, so Ms Chen changed the yes to no. Ms Chen agreed that she had filled in the response form in accordance with her instructions and had not given the applicant any advice and did not represent her.

The applicant’s affidavit evidence

In her affidavit sworn on 5 March 2008, the applicant said:
12.    In or about end of March 2007, I was informed by my agent Ms. Chen that I was required to attend a hearing of my case. I asked her to give me a copy of the submissions and application so I could make an arrangement to attend the required hearing. However, she refused to do so. I was alarmed at this lack of cooperation and at first did not know what I could do about it.
13.    I felt had no alternative except to appoint another agent. I made a lot of enquires in the Chinese community, searching for migration agents listed in the local Chinese newspaper. They mostly charged about $4,800 for an application to the RRT and they could not guarantee the outcome. On or about mid-April 2007 I was introduced by a friend to a Mr. Steven Chen of the Ao Sheng Migration Service. I was told Mr. Chen was a very powerful man in the Chinese community who usually got positive outcomes. I was told his office address was level 5, 258 Little Bourke Street.
14.    On 25 April 2007, I visited Level 5, 258 Little Bourke Street but did not find name of Ao Sheng Migration Service. I saw many migration agents and educational services people in that building, and then I made queries about Mr. Steven Chen. Finally I found him on level 7, 258 Little Bourke Street. Mr. Chen told me that he was a Migration Agent and the manager of firm, called Ao Sheng Migration Service. He said he did not put his firm’s name out in the front of the room because they have another office in Collins Street where they normally receive clients. Ao Sheng Migration Service is well known and has operated for many many years. Among other things they do is that they manage media service and internet cites. Mr. Chen said to me that though his boss was Jason, he is the manager in this office in Little Bourke Street. He said he could assist me to gain asylum by getting a protection visa. He further said he was an expert in this area and was confident of getting what as I wanted. He also said to me that he would inform my former agent about the change of migration agent and told me not to worry. He further asked me to pay $3800 if I wanted to go ahead of his services. He did not ask me to sign any form, I gave him a copy of the invitation to appear before the RRT which stated all my details. He said to me that that document was sufficient to start the application process.
15.    On 28 April 2007 I paid Mr. Chen $3800. He did not give me a receipt of the payment as this is not usual in China Town. Everything is cash business.
16.    On or about 8 May 2007, I again met Mr. Chen in his office in Little Bourke street and he confirmed that he had received all the documents from RRT and it appeared that my former agent did not make sufficient submissions in relation to my claim. His main concern was to make submissions pursuant to the law and the tribunal would then be likely to consider my application in my favour. He also told me not to attend the scheduled hearing as the hearing was a mere formality. I remember he said to me that the Tribunal regarded the review applicant as a rat. If you claimed to be a Catholic, they will ask you to state the principles of the Catholic faith. If you made some mistake because of the interpreter’s misunderstanding or otherwise, the tribunal member will fail the application immediately. He advised me that he would deal with the matter and that his firm had had many cases such as mine and they were all ok. He particularly told me that his success rate in reviews at RRT was very high.
17.    I did not attend the scheduled hearing because of my agent’s advice that this was not of any value.
18.    After my application was refused, I received the refusal letter addressed to me at my home address. I felt confused as why this correspondence was not sent to my second agent Mr. Chen whom I assumed was acting for me. I was very upset that the outcome was contrary to the assurances that all would be ok.
19.    At that time, I felt very frustrated and worried as I could not speak English and was not sure what was happening. I was also worried because the content of my claim I had wanted to remain absolutely confidential to protect me from possible persecution in the future by the Chinese government. Shortly after, I re-visited the office of Mr. Chen and was told by the neighbour that his office was closed because of his involvement in fraudulent activities and that he was not a migration agent at all. The person who told me this was a student who was working for another agent on the same floor. I was told by that student, who did not reveal his name, that all Mr. Chen actually was qualified to do was to help people from overseas to stay in Australia. He sais (sic) there were a lot of psuedo-agents in the Chinese community and he warned me to be careful. He seemed very wary while he spoke to me.
20.    After this, I searched the newspaper looking for information about Ao Sheng Migration Service. There was a reference to the Ao Sheng Migration Service located in Collins Street. I immediately telephoned them and they advised me that they never knew Steven Chen and they never had a office at corner of Swanston and Little Bourke Street. Then I asked them whether I could speak to Jason, their boss. The receptionist spoke Chinese and she said to me that Jason was in China and he was not available.

The applicant’s oral evidence in chief

The applicant confirmed that her affidavit was true particularly in relation to the advice she was given by Stephen Chen. The applicant said that she had walked into Ms Chen’s office and told her that she did not want to attend the hearing before the Tribunal. The applicant said that Ms Chen had completed the form in accordance with her instructions. The applicant said she had told Ms Chen that she did not want to go to the Tribunal hearing because Stephen Chen had advised her that it was unnecessary for her to attend. The applicant said that Stephen Chen had advised her to take the response form to Ms Chen.

The applicant’s evidence under cross examination

The applicant initially said that she had had the Tribunal’s invitation to a hearing translated to her. However, after her attention was drawn to the passage saying, “Please note that the Tribunal may make a decision without further notice if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing”, the applicant said she could not recall whether it had been translated or not. She later said that she was aware of the date and time of the hearing and was aware of the sentence quoted above.
The applicant reiterated that on 15 May 2007 she had told Ms Chen that she was not going to the Tribunal hearing. The applicant could not recall whether Ms Chen had whited out the tick in the yes box. The applicant also agreed that she had not told Ms Chen that she had been seeing another migration agent and agreed that she had not mentioned Stephen Chen to Ms Chen. The applicant said that she had only asked Ms Chen to help her fill out the response to hearing invitation form, and Ms Chen had not explained the detail of the form to her. The applicant agreed that she did not see Ms Chen again until after the Tribunal handed down its decision on 12 June 2007.

The application for judicial review

It was agreed that after the Tribunal handed down its decision, the applicant approached Ms Chen for assistance with the next step. It was agreed that Ms Chen referred the applicant to Neill Ogge Lawyers.

Ms Chen’s evidence

Ms Chen said that Mr Ogge asked her to get $2,000 from the applicant. Ms Chen said she obtained that money from the applicant and gave it to Mr Ogge. She said she did not have a trust account receipt because she gave the money straight to Mr Ogge. Ms Chen said Mr Ogge rang her a few days later and said he did not want to take the case.
Ms Chen said that Mr Ogge did not charge the applicant for his services but had paid counsel $200 for an opinion. Ms Chen said that Mr Ogge wanted to refund $1,800 to the applicant but she did not have a bank account. She asked for the money to be paid to a third party, De Jun Zheng. Ms Chen produced a photocopy of an authority to that effect. It indicates that Ms Chen translated it to the applicant. It was signed by the applicant.
Ms Chen said that she heard no more from the applicant until she was contacted by the first respondent’s solicitor in relation to this proceeding. Ms Chen said she had never heard of Ao Sheng Immigration Services. Ms Chen was not cross examined on these matters.

The applicant’s evidence in chief

The applicant said in her affidavit sworn on 5 March 2007 that:
22. Because I have given all my documents to Mr. Chen, I had no other documents in relation to my claim before the Department of Immigration and/or the Refugee Review Tribunal. For me to seek a review, I needed to get all my files. Therefore, I had no alternative except to seek assistance from my former migration agent Jenny Chen as to whether she could give me back my documents.
23. Because I had missed an opportunity to present my case before RRT, Jenny Chen felt obliged to assist me and do her best. She introduced me to an Australian-managed legal firm to represent me. I was asked to pay $6000. I had no money, however, so I had no alternative except to making an arrangement to pay. I was not told of the name of firm. They assisted me to prepare the application. However, I was told that they could not represent me because I only paid $900 as a deposit. Therefore, they refused to act for me further as I could not pay them the full fee.
The applicant did not give any additional oral evidence in chief on this matter.

The applicant’s oral evidence under cross examination

The applicant said that she did not actually see Mr Ogge. She agreed that she was asked to pay $2,000 in June 2007 but maintained that she had also had to pay $2,000 to Ms Chen in October 2006. The applicant said there were two payments. She denied that the first payment was for $200.
It was pointed out to the applicant that in her affidavit, she claimed she was asked to pay $6,000 at this time. She said that she was asked to pay $6,000 and the $2,000 was a deposit. It was pointed out to the applicant that, in her affidavit, she had said that she paid $900 as a deposit. The applicant said that, because the barrister did not accept the case, she was refunded some money. It was put to the applicant that she was refunded $1,800. She said all she got was a cheque, which became a very difficult issue for her. She denied that the refund was for $1,800.
The applicant was shown the authority produced by Ms Chen. The applicant agreed that Ms Chen had interpreted it to her on 4 July 2007 and that she, the applicant, had signed it. The applicant said that she had put the cheque into a friend’s account. She said that she had not received the sum of money because there were other charges as well.
The applicant said she could not remember who helped her file her application to this court on 6 July 2007. She could not remember whether it mentioned Stephen Chen. It did not. It said that the applicant “never chose to attend the hearing”. The applicant then said that Ms Chen had helped her file her application to this court. The applicant agreed that she had not mentioned Stephen Chen to Ms Chen or any one else at this stage.
Mr Love appeared for the applicant on 13 December 2007 in this court and sought an adjournment of the final hearing. It was put to the applicant that he had told the court that there was a Jenny Chen who was a registered migration agent but there was another person of the same name who was an unregistered migration agent who had possibly given the applicant fraudulent advice. The applicant said that she had not met Mr Love in person and she had been unable to communicate with him. It was put to the applicant that she had not told Mr Love about a person called Stephen Chen. The applicant said she had told her barrister there was an unregistered migration agent who had cheated her of some money.
The hearing scheduled for 13 December 2007 was adjourned to

5 February 2008
. On that date, the applicant had engaged her present solicitor, Ms Dai. Ms Dai advised the court that she sought an adjournment on the basis that a Stephen Chen had given the applicant fraudulent migration advice. The applicant agreed that she had not complained to anyone about Stephen Chen until 5 February 2008 but then said she may have mentioned him to Mr Love. She said he did not understand.
The applicant was asked to look at exhibit YD-2 to the affidavit sworn by Ying Dai on 5 May 2008. It was an advertisement for Ao Sheng Migration Services, and stated its address as Suite 803, Level 8, 258 Little Bourke Street Melbourne. The applicant denied that the advertisement was the one she had seen. It was put to the applicant that there was no other Ao Sheng business in Melbourne. The applicant said she was pretty sure there was one. She said she had seen a completely different company, although the pronunciation of their names could be similar. It was put to the applicant that she was making up the other business in Collins Street. The applicant said she was not lying.

The first respondent’s other affidavits

The first respondent relied on four affidavits. The deponents were not cross examined and I accept their evidence.
The first was sworn by Hong Yan Gao on 24 April 2008. Ms Gao said that she and her husband owned Best Education Services Australia. She said the business’s Chinese name was Ao Sheng Liu Xue Yi Min Fu Wu Zhong Xing. She said their business address was Suite 803, Level 8, 258 Little Bourke Street Melbourne. Before September 2006, it had been Suite 801.
Ms Gao said that she introduces Chinese students to educational institutions. She said she does not do protection visa matters. She said that she had never had a client with the name of the applicant. She said she had never employed a migration agent called Steven Chen or anyone by the name of Jason. She said her business has never operated from level 5 or level 7 of 258 Little Bourke Street or had an office in Collins Street.
Ms Gao said she was unaware of any other business called Ao Sheng Migration Service. She said she always gave receipts for payments for her services. She said her firm did not charge the applicant $3,800.
The second affidavit was sworn by Ying Dai on 5 May 2008. She said she reads and speaks fluent Mandarin. She said she searched the Chinese Australian Age at the State Library. She said she had found advertisements for Ao Sheng Liu Xue Yi Min Fu Wu Zhong Xing for the period 7 June 2007 to 4 July 2007 and exhibited copies of them. She said the literal translation of Ao Sheng Liu Xue Yi Min Fu Wu Zhong Xing was Australia Rising Education Immigration Services Centre. That entity also had another business name, namely, Best Education Service Australia. She said that she did not find any other advertisements for Ao Sheng Liu Xue Yi Min Fu Wu Zhong Xing over that period. The address given in all the advertisements for Ao Sheng Liu Xue Yi Min Fu Wu Zhong Xing was Suite 803, Level 8, 258 Little Bourke Street Melbourne.
The third affidavit was sworn by Elsie Yee Ming Loh on 6 May 2008. She said she had conducted a search on MARA’s register of migration agents for Jenny Chen and found one such agent. Her address was

83-87 Sydney Road Brunswick
.
The fourth affidavit was sworn by Kristiano Donato Palumbo on

7 May 2008
. He said that he was employed in the Department. He said he had searched the departmental migration agent’s database and had found no record of a business with the name Ao Sheng or a current or former migration agent with the name Steven Chen or Stephen Chen.

The Migration Agent’s Register

The applicant tendered an extract of the register of migration agents as at the date of the hearing for people by the name of Chen and Cheng. There were 51, but no Stevens or Stephens amongst them. It was common ground that there was no registered migration agent by the name of Stephen or Steven Chen at any material time.

The parties’ submissions

The applicant submitted that the questions for the court’s determination were whether the applicant saw Stephen Chen and whether he gave her the advice she claims. The applicant conceded that, although the applicant believed Ms Chen was her migration agent, Ms Chen’s evidence that she just helped the applicant with translation and the faxing of documents should be preferred. The applicant submitted that the advice given by Stephen Chen to the applicant was fraudulent in the sense explained in SZFDE. The applicant submitted the case was indistinguishable from SZDFE. The applicant said that inconsistencies in her evidence were the result of translating problems.
The first respondent submitted that there must be strong evidence to establish fraud and the case must be established on the Briginshaw test. The first respondent submitted that the applicant’s claims were vague and uncorroborated. When the first respondent tracked down Ao Sheng, the applicant claimed she was referring to another entity of the same name. The applicant did not call anyone to give evidence to support her claims.
The first respondent said that SZFDE was quite different, because the fraudulent migration agent in that case was well known and definitely existed, and because there was strong evidence that he had actually given the fraudulent advice, namely, that it would be fatal to the applicants’ case to attend the hearing.
In the present case, the applicant acknowledged that the passage in the Tribunal’s letter explaining the consequences of non-attendance was translated to her. The first respondent submitted that this broke the chain of causation, so that, even if Stephen Chen had given the advice as alleged, the applicant knew the consequences of not attending.
The first respondent said there were inconsistencies in the applicant’s evidence, there was nothing to establish that Stephen Chen had ever acted for the applicant and the court should draw Jones v Dunkell inferences. The first respondent argued that the Stephen Chen claim smacked of recent invention.

Findings

It is for the applicant to prove her claims in the present case. I accept that I could only make a finding of fraud on the part of Stephen Chen if I were satisfied of the relevant facts on the Briginshaw standard of proof. Other matters are to be assessed in the usual way on the balance of probabilities.
Ms Chen’s evidence was barely challenged in cross examination. Ultimately, the applicant conceded that Ms Chen had provided translation services rather than migration agent services to the applicant. Ms Chen agreed in cross examination that she did not give advice to the applicant. Ms Chen was not cross examined about the financial matters alleged by the applicant.
In these circumstances, I do not accept the applicant’s claim that Ms Chen had demanded and been paid $4,800 by the applicant for the protection visa application. Indeed, the applicant herself departed from her own affidavit and said she actually paid Ms Chen $2,000 in November 2006.
Even that reduced claim was unsupported by any evidence other than the applicant’s. Not only was there no receipt, but there was no bank record indicating that the money had been withdrawn from Mr Yao’s bank account on or about the relevant date. Moreover, the applicant did not adduce any evidence from Mr Yao. There was no explanation offered for the applicant’s failure to do so.
In all the circumstances, I infer that any evidence adduced by Mr Yao would not have assisted the applicant. I accept Ms Chen’s unchallenged evidence that she charged the applicant only $200 in November 2006. I consider that the applicant made up the initial claim that Ms Chen had charged her $4,800 in November 2006 and her amended claim that Ms Chen charged her $2,000 in November 2006. I consider that the applicant was not a reliable witness.

Ms Chen said she had completed the protection visa application form as a migration agent rather than as an interpreter. However, the applicant conceded that Ms Chen had acted only as a translator. As I understand Ms Chen’s evidence on this point, she said that she completed the form as a migration agent on the basis that she was a registered migration agent, but, as such, she only provided translating services.
I do not accept the applicant’s claim that Ms Chen refused to give the applicant a copy of her submissions lodged with the Tribunal. Based on the documents appearing in the court book, no such submissions were lodged. I accept Ms Chen’s evidence that she did not prepare any such submissions and she was not engaged to do so. These conclusions are consistent with the applicant’s concession that Ms Chen provided translation services only and not migration advice.
I consider that the applicant was well aware that Ms Chen was not her migration agent but only provided the applicant with translation services and faxed some documents for her. In my view, the applicant made up the claim that Ms Chen was her migration agent and only resiled from that claim when confronted with compelling evidence given by Ms Chen herself.
The applicant claimed that she was introduced by a friend to Stephen Chen in mid April 2007. The applicant did not identify the friend or call him or her to give evidence. The applicant did not produce a business card or a letter from Stephen Chen. There was no evidence of his telephone number. There was no documentary evidence that Stephen Chen worked from level 7, 258 Little Bourke Street. The applicant did not nominate his room number. As such, the claim could not be readily verified or disproved.
The applicant said that she had been told by a person in a neighbouring office that Stephen Chen was not a migration agent at all. However, the applicant did not call that person to verify the existence of Stephen Chen or explain why she had not done so. There is no mention in the court book of Stephen Chen. There was no suggestion that he filed written submissions or sent any material to the Tribunal on the applicant’s behalf.
The applicant said it was not customary to obtain a receipt in Chinatown. However, this conflicts with the evidence of Hong Yan Gao who said that she always provided a receipt. Her evidence was not challenged. On the basis of that evidence, and in view of the unreliability of the applicant’s evidence, I am unable to accept that it is not customary to provide receipts in Chinatown.
The applicant said that she paid Stephen Chen $3,800. Not only did the applicant not provide a receipt, she did not explain where that money came from. If it was borrowed from a friend, it is to be expected that the friend could have given evidence. If it came from the applicant’s earnings, it is to be expected that there would have been some record of them. The applicant did not adduce any evidence along these lines, or explain why she had not done so.
The applicant claimed that there was a reference in an unspecified newspaper on an unspecified date to an Ao Sheng in Collins Street. She did not produce a copy of that newspaper reference. In the absence of a copy of the newspaper reference, and in view of the many deficiencies in the applicant’s evidence, I do not accept that the applicant found such a reference in the newspaper.
Nor do I accept that there is an Ao Sheng in Collins Street. The applicant said that she telephoned Ao Sheng in Collins Street and was told that they had no Stephen Chen, no office at the corner of Swanston and Little Bourke Streets and the boss Jason was in China. I do not accept that the applicant made the telephone call she alleged. She did not provide the telephone number that she claimed to have called or the precise address of the business. Her evidence on this point is vague.
The applicant changed her evidence on whether the Tribunal’s invitation to a hearing had been translated to her. Initially, she said it had been. However, after her attention was drawn to the passage saying, “Please note that the Tribunal may make a decision without further notice if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing”, the applicant said she could not recall whether it had been translated or not. She later said that she was aware of the date and time of the hearing and was aware of the sentence quoted above. This was a very significant change in evidence. It suggests that the applicant was willing to mould her evidence to suit what she believed to be necessary to succeed in the case.
I do not accept that Neill Ogge asked the applicant to pay $6,000 for her application for judicial review or that she paid $2,000 as a deposit. That claim was inconsistent with the applicant’s own claim in her affidavit that she had paid a $900 deposit. It was also inconsistent with the authority that the applicant admitted she had signed after Ms Chen translated it to her. That authority indicated that the applicant had paid $2,000 to Neill Ogge but had been refunded $1,800. In the face of this document, the applicant denied that she had been refunded $1,800. I prefer the documentary evidence and Ms Chen’s oral evidence. It was internally consistent. Ms Chen’s evidence on this point and her credibility in general were not challenged in cross examination.
In view of the changes in the applicant’s evidence, the vague and unverifiable nature of much of her evidence, the fact that the applicant adduced no evidence from her friends and other people she mentioned, the fact that the applicant adduced no documentary evidence to support her claims and the fact that there is no independent evidence that tends to substantiate the existence of Stephen Chen, I do not accept that the applicant received any advice from Stephen Chen or a person purporting to be Stephen Chen. It is clear that Ms Chen did not advise the applicant not to attend the Tribunal hearing. Accordingly, I do not accept that a fraud of the type explained in SZDFE arose in this case.
This case is readily distinguishable from SZDFE. In that case, there was no doubt that the nominated migration agent existed and no doubt that he had given the alleged advice. In the present case, I am not persuaded that the nominated migration agent existed and I am not persuaded that anyone gave the applicant the advice she alleged.
I have drawn my conclusions in this case on the balance of probabilities. As I have not accepted that anyone gave the applicant the advice she alleged, it has been unnecessary to consider whether the fraud claim would have been made out on the Briginshaw standard.
No other grounds were pursued by the applicant. Accordingly, the application must be dismissed.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Catherine Wilson

Date: 17 July 2008