SZBII v Minister for Immigration
[2006] FMCA 954
•06 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBII & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 954 |
| MIGRATION – Refugee – failure to attend the Tribunal’s hearing – applicant argued that non-attendance due to the “fraud” of the migration agent – whether a denial of procedural fairness – s.422B – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.422B, 474(2), 425, 425A, 441A(4), 441C(4), 426A, 425(2)(b), 314 Evidence Act 1995, ss.55, 97(1)(b), 98 |
| NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 Woods v Sheriff of Queensland (1895) 6 QLJ Hoskins v Van Den-Braak (1998) 43 NSWLR 290 |
| Applicant: | SZBII & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3183 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 February 2006 |
| Date of Last Submission: | 31 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 06 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. B. Zipser |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. K. Morgan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3183 of 2004
| SZBII & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 27 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
4 July 2003 and handed down on 5 August 2003 to affirm the decision of a delegate of the respondent Minister made on 7 June 2002 to refuse a protection visa to the applicants.
The applicants are husband and wife and are citizens of the People's Republic of China. They arrived in Australia on 19 February 2002, and on 25 February 2002 they lodged an application for protection visas with the respondent Minister's Department. On 7 June 2002 the application was refused, and on 9 July 2002 the applicants applied for review of that decision.
Only the applicant husband made specific claims under the Refugees Convention. The applicant wife’s claims depended on those of her husband. For ease of reference I will refer to the applicant husband as “the applicant”. The applicant’s claims can be found in the application for the protection visa (Court Book (“CB”) 1 to CB 31 and particularly in an attached statement at CB 30 to CB 31), in a letter dated 19 April 2004, addressed to ‘Onshore protection, NSW’ providing, as requested, comments on views formed by the Minister’s delegate on information that the applicant had previously provided (CB 34 to CB 35), and in the application for review to the Tribunal reproduced at CB 50 to CB 53.
In essence the applicant claimed to fear persecution on the basis of his involvement with the Falun Gong movement. In his application for review (CB 52) the applicant stated:
“I am a Falun Gong Practitioner. Falun Gong was banned by the Chinese Government. The police is going on arresting Falun gong practitioners. I am afraid of being arrested.”
On 23 May 2003 the Tribunal wrote to the applicants, by letter addressed to the applicant and sent care of his then migration agent, and advised that it had considered the material before it in relation to the application, but was unable to make a favourable decision on this information alone (CB 54 to CB 55). It invited the applicants to come to a hearing before the Tribunal to give evidence and present arguments in support of their claims. The Tribunal noted that the applicants could also ask the Tribunal to obtain oral evidence from another person or persons. The Tribunal provided a time, date and a place for the hearing (18 June 2003), and noted that if there was no attendance at the hearing, and the Tribunal did not otherwise postpone the hearing, it could make a decision on the case without further notice. The Tribunal enclosed a “Response to Hearing Invitation” form for completion by the applicant (CB 55.5). This form was returned to the Tribunal on 28 May 2003, advising that the applicants would not attend the hearing (CB 56). The Tribunal in its decision record (CB 63.8) made reference to this invitation, noted the advice that the applicants consented to the Tribunal proceeding to a decision without further action, and therefore proceeded to determine the application on what was before it.
The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 65.2 to CB 65.8. The Tribunal found that the applicant’s evidence was “lacking in detail and short on specifics”. The Tribunal found that in the absence of any further “reliable evidence” the Tribunal could not be satisfied, on what was before it, that the applicants had a well founded fear of persecution within the meaning of the Refugees Convention (CB 65.8).
The application to this Court, filed on 27 October 2004 by the applicant, which is in large part in the form of submission, essentially contains one ground. The applicants complain that they were denied the right to attend the hearing before the Tribunal, and as such were denied procedural fairness, as a result of being “deceived, ill-informed and misled” by their former migration agent.
At the hearing before me the applicants were represented by Mr. Zipser, and the respondent by Ms. Morgan. Put before me was:
1)For the applicants:
i)
The affidavit of the applicant husband affirmed on
27 October 2004 and filed on 27 October 2004.
ii)
The affidavit of the applicant husband affirmed on
30 October 2005 and filed on 3 November 2005.
iii)A copy of a Notice of Decision by the Migration Agents Registration Authority (“the MARA Notice”) dated 7 June 2004 relating to “David Gang Deng”. This was produced to the Court as a result of a subpoena (filed 14 April 2006) and served on the proper officer of the MARA.
iv)Mr. Zipser also sought to examine a witness. No prior notice of this intention was given to the respondent’s solicitors or the Court.
v)The applicant’s written submissions filed 31 October 2005.
2)For the respondent:
i)A Notice of Objection to Competency filed on 5 November 2004.
ii)The respondent’s written submissions dated 31 October 2005.
iii)The affidavit of Catherine Jane Gray sworn on 7 March 2006.
The applicants’ complaint is that they were denied the opportunity of a hearing before the Tribunal as a result of the applicants being (“fraudulently”) misled by their then migration agent which resulted in the applicant not attending a hearing before the Tribunal. Mr. Zipser’s submission was that the migration agent’s conduct was such that he “positively” and “wrongfully” dissuaded the applicant husband from attending the hearing and that this was not “just carelessness or an oversight”, but was “either fraudulent or something approaching fraud”. His argument was, further, that relief should be granted to the applicants because such fraud by the agent (which led to the applicant not attending the hearing) turns from a “natural justice issue to another separate ground”.
The applicant husband's affidavit of 30 October 2005 asserts relevantly that after his unsuccessful application for a protection visa and after making the application for review, he engaged a “David Deng” as his migration agent. Further, that he subsequently received the Tribunal’s letter of invitation to the hearing (CB 54 to CB 55) and took this letter to Mr. Deng who told him that he did not need to go to the hearing. He was thus deprived of (what he subsequently learnt was) an “important need for him”. That is the opportunity to attend the hearing with the Tribunal. He also asserted that he signed the “Response to Hearing Invitation” form (CB 56), but that he did not understand the document, and that Mr. Deng asked him to “sign the document”. Ms. Morgan had no objection to my taking this into evidence.
The applicant’s affidavit of 27 October 2004 was also pressed by Mr. Zipser. This affidavit deals largely with matters occurring after the Tribunal handed down its decision. Paragraphs 1 and 2 which are relevant to support Mr. Zisper’s argument do not advance the applicant’s case beyond what is put in the affidavit of 30 October 2005. In any event Ms. Morgan had no objection to the entire affidavit and this also was admitted into evidence before me.
In relation to the applicant’s evidence regarding the invitation to hearing sent the Tribunal and the actions of the migration agent, Ms. Morgan for the Minister conceded that the applicants were denied the opportunity to attend the hearing because of the actions of the migration agent.
Mr. Zipser also sought to tend the MARA Notice as it related to the migration agent. Mr. Zipser took me to parts of the MARA Notice which showed variously that the migration agent had provided, in unrelated applications made to the Minister for protection visas, the same residential address for over 30 different applicants. Further, that he had made misleading statements to the Minister's Department, and even further that he had made misleading statements to the Refugee Review Tribunal and had put identical claims on behalf of eight different applicants. The Notice also contains findings by the MARA that the agent had falsely represented to various applicants that he was a solicitor. None of the matters reported in this Notice were said to relate directly to the applicants before me, or their application before the Tribunal. Mr. Zipser’s subsequent submissions (see below) were that he sought to establish the propensity of the migration agent to engage in the conduct complained of by the applicants before me and to the extent that some of these other applicants had not attended the relevant hearings before the Tribunal in their cases, that had been due to the (“fraudulent” or “akin to fraudulent”) conduct of the agent.
Further he also sought to call a witness, whom he submitted had engaged the same migration agent, who would give evidence that “suggests” that the migration agent took active steps to prevent “that witness” from being “aware of the hearing” with the Tribunal in her case.
Ms. Morgan submitted that the respondent did not oppose the tender of the MARA Notice of Decision, to the extent that it proved the fact of the migration agent’s “disbarment” (from being registered for five years as a migration agent).
In relation to the relevance of the matters itemised in the MARA Notice and what Mr. Zipser had submitted would be the nature of the evidence from the proposed witness, Ms. Morgan submitted that, with s.55 of the Evidence Act 1995 (“the Evidence Act”) in mind, these matters were irrelevant to the issue before the Court. Her submission was that Mr. Zipser had argued that the relevance of this material was both a “suggestion” and that it showed a propensity, for the migration adviser to act in a fraudulent way (or akin to fraudulent) and that he was conducting business in a particular manner – namely, knowingly making false representations.
Ms. Morgan's submission was that the only evidence already available going to this issue was insufficient to establish that the “propensity” evidence was admissible. The reference here was to paragraph 11 of the applicant's affidavit affirmed on 30 October 2005, which recounted a conversation that the applicant says he had with the migration agent where the agent is reported to have told him that he did not need to go to the hearing with the Tribunal, and that as “a lawyer” the agent would represent him at the hearing. [I should also note that there was another piece of evidence, paragraphs 1 and 2 of the applicant’s affidavit of
27 October 2004, but these paragraphs, although in a different form, asserted the same thing as paragraph 11 of the affidavit of 30 October 2005]. The submission was that neither the details in the MARA Notice “disbarring” the agent, nor his encounters with another client, would lead to reaching the view that there had been fraudulent action on the part of the agent in the case before me.
Her submission in the alternative was that while the respondent concedes that the applicants did not attend the hearing because of the actions of the agent, the material in the MARA Notice lacks “significant probative value” in relation to the issue of alleged fraud as it derives from paragraph 11 of the applicant’s affidavit of 30 October 2005.
The third limb of Ms. Morgan's objection was that ultimately the applicants had not called the migration agent to give evidence, and that in addition to the material in the MARA Notice and the proposed witness’s intended evidence, being irrelevant pursuant to s.55 of the Evidence Act, this material lacked significant probative value (s.97(1)(b) of the Evidence Act). Further that there had been a failure by the applicant to provide notice pursuant to s.98 of the Evidence Act, and that the evidence that should really be led in these proceedings by the applicants is that of the former migration agent, and that any such evidence should involve a concession of fraudulent behaviour.
Mr. Zipser’s position was that he was seeking to lay an evidentiary base to support his submission that the conduct of the agent was not merely careless, but was intentionally wrongful and “akin to fraud”. He argued that he would seek to establish fraud, and he submitted that if fraud could be established, this matter was not “covered” by s.422B of the Migration Act 1958 (“the Act”) and is not a matter dealt with by Division 4 of part 7 of the Act (as it deals with invitations to hearings before the Tribunal). As such, if fraud could be established then it was available to the applicant to ground his application for relief. He referred to the Full Federal Court in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 (“NASB”) in relation to the question of the “degree of irregularity” that the applicants would need to show in order to succeed and obtain the relief being sought. He referred particularly to:
“[53] It is perhaps unwise to attempt to define exhaustively the circumstances in which certiorari will lie. We refrain from making the attempt. Consistently with authority, however, it can be said that certiorari will lie where there has been a failure to give a fair trial attributable to conduct, which is in some sense irregular, of:
· the court, tribunal or other decision-maker; or
· the other party or those associated with the other party; or
· a witness
Examples usually given of the second and third class of case are fraud, perjury and collusion, but they may not be exhaustive; cf R v Bolton; Ex parte Scally [1991] 2 WLR 239.”
In that case the Full Court was dealing with a situation where an applicant (an Iranian national) who had been unsuccessful before the Refugee Review Tribunal, and at first instance before the Federal Court, sought to lead additional evidence before the Full Federal Court. The Court indicated at [36]:
“…The evidence is said to show that, contrary to the RRT’s finding, the Iranian authorities do have [an] ongoing interest in the appellant.”
The evidence was derived from two documents, a “summons” and “notice” from the Iranian authorities, that had been delivered to that applicant's previous address in Iran. Both documents were in existence before the date of the Tribunal’s decision in that case and prior to the hearing before the primary Judge. The Full Court was concerned with whether the “fresh evidence” was relevant to any ground in which the relief sought (in that case certiorari) could properly have been granted. It was in this context that the Full Court's statement at [53] was set. While the Full Court expressed some doubt about attempting to define exhaustively the grounds in which certiorari would lie, it clearly set out that, consistent with authority, it would lie where there had been a failure to give a “fair trial” and where there was in “some sense irregular” conduct of a Tribunal or party, as set out in the dot points at [53]. In that case the Court found:
1)There was no failure by the Tribunal itself to give a fair hearing.
2)The unavailability of the documents was not attributable to irregular conduct of the Minister (said to be the “other party”) or those associated with the Minister.
3)Nor was the case one of perjury, or other misconduct of a witness (before the Tribunal).
Mr. Zipser’s position in relation to the case before me, was that the applicants were prevented by the migration agent’s “fraudulent” conduct, or conduct akin to fraud, from attending the hearing before the Tribunal. His submission, with reference in particular to NASB, was “that fraud was an example of conduct where certiorari could lie” to give relief to an applicant who had been denied a hearing due to such conduct.
The issue before the Court is whether the applicants have been denied a fair hearing before the Tribunal such that certiorari may be applied to afford them relief. The evidence that Mr. Zipser sought to put forward, both by way of his witness and the MARA Notice, sought to establish, or to go to establish, fraudulent (or akin to fraudulent) conduct on the part of the migration agent. Even if the conduct of the agent could be said to be fraudulent (or akin to fraud) none of this material or what the witness was expected to say, went to show irregular conduct on the part of the Tribunal. Nor on the basis of what the Full Court said in NASB, where fraud was given as one specific example which could be relevant, does this material go to show fraud or even any other irregular conduct on the part of the Minister or those associated with the Minister. Nor does this material go to show fraud, perjury or other misconduct of a witness before the Tribunal. The migration agent clearly was not a witness before the Tribunal. Further, the agent’s conduct, as complained of in the applicant's affidavit of 30 October 2005 at paragraph 11, does not itself constitute fraud, nor for that matter (obviously) perjury as a witness before the Tribunal. The critical issue is whether the Tribunal failed to observe the requirement to provide a fair hearing to the applicants. That the agent engaged in irregular conduct in a number of other instances, such that it led to his being removed for a period of five years from the register of migration agents, or that he engaged in such conduct in another case (to which the applicants’ proposed witness may have given evidence) does not in my view assist in showing fraudulent conduct in the case before me, and certainly not fraudulent or other irregular conduct of the Tribunal, the Minister or those associated with the Minister or a witness before the Tribunal. While Mr. Zipser sought to rely on the reference to “fraud” in NASB, and while the Full Court clearly said it was not providing an exhaustive definition, I cannot see that the Full Court in NASB can be said by its reference to “fraud” to be establishing a proposition that fraud by a migration agent on his client, was sufficient to show error on the part of the Tribunal. In my view this is a remote circumstance quite removed from the context in which the Full Court said the existence of fraud might assist an applicant, who complains of a Tribunal decision, to obtain relief by way of certiorari.
Further, and in any event, I accept Ms. Morgan's submission that neither the details in the MARA Notice “disbarring” the migration agent, nor the agent’s dealings with other clients (including the prospective witness) would go to show fraudulent conduct by the agent, although it certainly shows conduct sufficient to cause the agent to lose registration as a migration agent (pursuant to the relevant code of conduct prescribed for migration agents - s.314 of the Act). That the agent engaged in inappropriate conduct in misleading the Minister's Department, the Tribunal, and in two instances misrepresenting his status to two of his clients (by asserting that he was a lawyer) and that this conduct led to his removal from the relevant register, is clearly demonstrated by the MARA Notice.
Consistent with Ms. Morgan's concession, that the migration agent was responsible for the applicant’s failure to attend the hearing, I admit the MARA Notice into evidence for the purpose stated above. However I also agree with her that the “evidence” that the migration agent engaged in a number of instances of misconduct does not go to establish fraud. It goes to establish something far short of fraud, and that is that he engaged in conduct which was in breach of the relevant code of conduct. This led the relevant authorities supervising the conduct of migration agents to impose a disciplinary penalty. Fraud in the case before me cannot be shown simply through what another of the agent’s clients says about what occurred in her case. Nor was Mr. Zipser able to show the significant probative value of this proposed evidence (both of the MARA Notice and witness) to establish the fraud asserted, or something “akin to fraud”. Even if Mr. Zipser, as he appeared to be doing at one point during the hearing, was seeking to rely on this material as evidence of the “propensity” of the migration agent to engage in making false representations (either to the Minister's Department, the Tribunal or even his clients) the details in the MARA Notice, and the prospective witness’s proposed statement, do not on what Mr. Zipser put before me, bridge the gulf between the agent’s conduct which led to his deregistration and the elements necessary to prove fraud (or for that matter “something akin to fraud” whatever that may be). It must also be remembered that the critical issue still remains that none of the material goes to show any wrongdoing on the part of the Tribunal, the Minister, those associated with the Minister, or a witness before the Tribunal. In any event, in accepting Ms. Morgan's submissions, I admitted the MARA Notice on the limited basis of the respondent’s concessions. I did not hear from the prospective witness for the reasons set out above.
Mr. Zipser commenced his submissions on the substantive ground of complaint before the Court with reference to NBAJ v Minister for Immigration [2005] FMCA 1668 (“NBAJ”), a Judgement of Barnes FM. He submitted that in that case he appeared for the applicant and “ran the argument that I'm running today”. He further submitted that Her Honour “handed down a comprehensive decision which was against the applicant's position” and that it could “well be that your Honour decides that it is not appropriate to dissent from that decision”.
In that case Barnes FM had before her an application for review of a Tribunal decision by a national of the People's Republic of China. The issue raised by Mr. Zipser in that case (see paragraph [6] of Her Honour’s Judgement) was identical to that raised in the case before me. First, the circumstances that gave rise to a denial of procedural fairness constituting jurisdictional error (in that case the wrongful conduct of the migration agent was given as the reason for depriving the applicant of an opportunity of a hearing before the Tribunal amounting to a denial of procedural fairness giving rise to jurisdictional error). Second, the effect of s.422B of the Act and whether this would influence the determination of jurisdictional error. (See also paragraph [11] of the written submissions for the applicant in the case before me filed 31 October 2005). In the case before Her Honour, Counsel for the respondent contended that there was no jurisdictional error, whatever the effect of s.422B of the Act, and the matter proceeded on the basis that it was not necessary to determine the effect of s.422B. That case turned on whether the circumstances complained of by the applicant gave rise to a denial of procedural fairness constituting jurisdictional error. In that case, as in the case before me, Mr. Zipser led evidence from the applicant upon which he contended that the applicant had been misled by his migration agent, and the applicant was thereby deprived of the opportunity of a hearing before the Tribunal. In that case (again) there was no suggestion that the Tribunal was at fault.
Mr. Zipser submitted that there was a lack of procedural fairness, constituting jurisdictional error, and that this was consistent with both Australian and English authorities that indicated that there can be a denial of procedural fairness although there is no fault on the part of the decision maker. In this regard he made reference to Gleeson CJ., in Hot Holdings Pty Limited v Creasy and Others (2002) 210 CLR 438 (“Hot Holdings”). Her Honour distinguished the circumstances before her on the basis that in Hot Holdings there was an allegation of apprehended bias on the part of the relevant Minister, because two of his Departmental officers involved in the process of advising him, had shares in certain companies affected by the relevant Ministerial decision. Even though there was no suggestion that the Minister knew of, or was seeking to advance, the interests of the two officers, Gleeson CJ. stated that if a case could be made for setting aside the Minister's decision it was on the ground that the making of the decision involved the issue of procedural fairness in that the necessary duty to act fairly included an absence of the actuality, or the appearance of, disqualifying bias. Her Honour distinguished that situation from the situation before her on the basis that there was no suggestion of bias either actual or apprehended on the part of the actual decision maker before her.
The relevant issue in NBAJ is the same as in the case before me. That is that the respective applicants were denied an opportunity to attend a hearing before the Tribunal due to the actions of their respective migration agents. Although I note that in the case before me the evidence is that the applicant knew of the hearing, whereas in NBAJ the evidence was that the applicant was never told of the scheduled hearing by the migration agent, this difference is not such to cause a distinction relevant to the application of the authorities considered – namely the action taken by the agent in preventing (one way or another) the applicants from attending the Tribunal hearing. I have read the Judgment of Barnes FM in NBAJ and with respect, agree with Her Honour’s analysis of the relevant authorities and their effect on the relevant issue also before me.
In NBAJ Mr. Zipser also sought to rely on a number of Australian authorities relating to a situation where an applicant was deprived of the opportunity to attend a hearing, in circumstances where there was no fault on the part of the actual decision maker or Court. In particular, Her Honour made reference to Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 (“Clements”) and Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and found (at [12]) that in each of those cases the denial of procedural fairness was attributable to a failure by the Tribunal, albeit unintentional, to provide the relevant applicant with the proper opportunity to present his case. She found that this was distinguishable from the case before her, because there was no suggestion of any administrative error on the part of the Tribunal. This is a reference to the Tribunal including those parts which provide administrative support to the Tribunal member.
In NBAJ Mr. Zipser further referred to cases in which the absence of a party at the time appointed for a Court hearing resulted in the setting aside of orders of the Court even though the Court that made the orders had been unaware of the reason for the party's absence at the time the order was made (at [13]). Her Honour distinguished this scenario from the situation before her in that she stated she was not being asked to set aside orders made by the Court, and noted that the issue was whether there was a denial of procedural fairness constituting jurisdictional error on the part of the Tribunal. Further, the case before her arose in a very different statutory context to that pertaining to these cases, in that a decision of a Tribunal is functus officio when made, as opposed to a situation involving orders made by a Court.
Mr. Zipser also raised the issue of fraud before Her Honour. At [14] Her Honour notes that it was “suggested” that the breach of the rules of natural justice was not confined to error on the part of the Tribunal, at least where the relevant circumstances arose as a result of fraud by some party other than the Tribunal. Mr. Zipser in that case, as in the case before me, relied on the English decision of Regina v Leyland Justices, Ex parte Hawthorn [1979] QB 283 (“Ex parte Hawthorn”) where an order for certiorari to quash a conviction by a Court was made where there had been an error, not on the part of the Court, but on the part of police prosecutors who had failed to disclose the existence of relevant witnesses. Her Honour found that on the applicant’s evidence, that he had never been told by his migration agent that there was a hearing in his matter, it was not an appropriate case to draw an inference of fraud on the part of the migration agent, or to establish that the conduct complained of was such as to bring into play the principles in Ex parte Hawthorn. Further, that while there were situations in which Courts have quashed, by certiorari, convictions shown to be have been obtained by fraud and collusion, and Her Honour referred to Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 (“Ex parte Al-Mehdawi”) at 898, it was questionable whether the decision in Ex parte Hawthorn was correctly classified as a case depending on either procedural impropriety, or a breach of the rules of natural justice.
Her Honour also noted that it had been acknowledged for the applicant in the case before her, that Ex parte Al-Mehdawi did not advance the applicant's case [at 16]. This was a case where the applicant, owing to the negligence of his solicitors, claimed that he had been deprived of the opportunity to attend the hearing before the decision maker to which he was entitled by the rules of natural justice. Her Honour noted that in circumstances “not dissimilar” to those in the case before her, the House of Lords was not persuaded that the party could complain of a denial of natural justice where he had been afforded an opportunity by the decision maker of presenting his case, but through the fault of his own advisers the opportunity had not been taken.
In NBAJ Mr. Zipser (as in the case now before me) pressed the view that where the applicant was deprived of an opportunity of attending a hearing as a result of the wrongful conduct of his migration agent (where fraud, “akin to fraud” or even otherwise), there was nonetheless a denial of procedural fairness giving rise to jurisdictional error. He relied on English authority in this context, which Her Honour considered at [19] of NBAJ. Her Honour found that this authority would not assist the applicant for the reasons which she set out, and particularly noted that in one of the cases put forward: Maqsood v The Special Adjudicator & Ors [2001] EWHC Admin 1003, the applicant for asylum was deprived of the opportunity to present his case by the negligence of his solicitors, and that the Court in that case noted that under the applicable rules it was sufficient to give notice of a hearing to the solicitor for the applicant. Further, that while it was held that an applicant may be prejudiced if his solicitor fails to respond to a notice, even where the applicant was not personally at fault, to give relief would be inconsistent with the prescription of procedural order that applied in those circumstances. Her Honour found in the case before her that there had been no failure of the relevant “procedural order”.
Her Honour [at 20] also referred to Kiefel J., (with whom Marshall J. agreed) in Freeman v Health Insurance Commission [2004] FCAFC 335 at [52]:
“In the context of administrative decision-making there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision, through their mistaken view or that of their legal advisers, could amount to procedural unfairness. There would seem to be strong policy grounds why this should not be the case...”
Further, Barnes FM referred to Downes J. in the same case (who agreed with the reasoning of Keifel J.) at [21] of NBAJ:
“His Honour suggested that it was not necessary to refer to cases relating to unfairness caused by conduct of third parties where there was no unfairness for which any of the relevant investigating or adjudicating persons or bodies was responsible (at [67])”
She also noted that Counsel for the applicant (Mr. Zipser) in the case before her, accepted that the rules of procedural fairness would depend on the relevant statutory context. In this she considered a number of authorities addressing the scope of procedural fairness in the context of migration decisions or review by the Tribunal which she saw as being directly on point and “of more assistance” than the English authorities. Her Honour looked at the situation in Minister for Immigration & Multicultural & Indigenous Affairs v George (2004) 139 FCR 127 (“George”), a case in which the relevant letters from the Minister were sent to addresses which were not addresses of the relevant applicant, and distinguished this with the situation before her, where there was no suggestion that the Tribunal did not meet its notification requirements (that is notification for the opportunity for a hearing) under the relevant Act. She distinguished George from the case before her on the basis that there was “no mistake” on the part of the Tribunal “akin” to that which occurred in George.
In particular Her Honour compared George with what CFM Bryant (as she then was) found in M172 v Minister for Immigration & Anor [2004] FMCA 23 (“M172”) and at [25] of NBAJ stated:
“George is not inconsistent with what was said in M172, particularly when one take into account the statutory scheme applicable to review by the Refugee Review Tribunal. Provided the Tribunal has afforded an applicant an opportunity to be heard, by the adoption of a procedure which is a fair one, no error going to the jurisdiction of the Tribunal to make a decision without giving the applicant a further opportunity to be heard will be established.”
Her Honour referred to Bryant CFM in M172 where at [28] of M172:
“There is however reason to be cautious in relying on English authorities in this area: SHJB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 303, at paragraphs 29 to 31. All the Australian authorities require some defect in the decision making process. Re MIMIA; Ex Parte Lam (2003) HCA 6, where at paragraph 105 McHugh and Gummow JJ said:
‘But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision, as Lord Brightman put it (98). What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken.’”
She recorded that Mr. Zipser took issue with the “correctness” of the statement that all Australian authorities require some defect in the decision making process, but that he did not cite any contrary authority in the context of decisions of the Refugee Review Tribunal. At [27]:
“As Lindgren and Stone JJ suggested in NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 it is necessary to determine the scope and content of the requirements of natural justice in the particular factual circumstances of the case and whether those requirements were met. As Bryant CFM also observed in M172 at [30]:
‘What must be demonstrated is "unfairness" and the concern of the law is to avoid "practical injustice’”
Barnes FM further referred to other authorities in relation to decisions of the Tribunal which adopted the approach taken in M172. She considered such decisions to be “correct”, and that they should be followed even though she bore in mind that a defect in the decision-making process could exist without fault on the part of the Tribunal. She specifically referred to, at [29]: SZBBL v Minister for Immigration [2004] FMCA 185 (“SZBBL”), at [30]: B41 of 2003, in the matter of an application for a Writof Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 (“B41”), and at [32]: SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 (“SZBZL”) where Bennett J., sitting as the Full Court, considered the circumstances where an applicant claimed that his migration agent had acted without consultation or instructions and an invitation to attend a Tribunal hearing thereby was declined.
In that case at first instance, Driver FM relied on M172 to the effect that any fault on the part of the migration agent in dealing with a hearing invitation could not support an assertion of jurisdictional error on the part of the Tribunal. Bennett J. found that the Tribunal's letter, in that case, to the applicant, was sent in accordance with the relevant statutory requirements and that although the applicant asserted he (personally) did not receive the relevant notice the Tribunal had complied with its relevant statutory obligations. Her Honour subsequently concluded that she was “satisfied” that within the framework of the Act there was no failure to give the applicant the opportunity to appear before the Tribunal and the Tribunal was entitled to make a decision on the application for review in the absence of the applicant (See also NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [25]). Similarly, Barnes FM found that in the case before her there was no suggestion that the Tribunal failed to comply with its obligation to give the applicant notice of a hearing. This is exactly the situation before me.
Ultimately Barnes FM concluded at [33]:
“I am not persuaded that the conduct of the migration agent complained of by the applicant in this case establishes a denial of procedural fairness giving rise to jurisdictional error. The applicant was given an opportunity by the Tribunal to be heard. No shortcoming in the procedures adopted by the Tribunal has been suggested. No mistake, misunderstanding or any "procedural impropriety" in the context of administrative decision-making by the Tribunal or defect in the decision-making process has been established. The applicant chose to rely on his migration agent and did not seek translation of documents he received and signed. It cannot be said that, even on the broadest view, procedural fairness requires that the Tribunal decision be set aside. What transpired between the applicant and his migration agent does not amount to a breach of procedural fairness and therefore jurisdictional error on the part of the Tribunal. The application must be dismissed.”
Before me Mr. Zipser took specific issue with that part of the Judgement of Barnes FM where Her Honour, in his submission, failed to properly consider the relevant and applicable issue in the case to which she had been referred: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 (“Clements”). He sought (by inference) that I not follow Her Honour’s alleged “error”. He submitted that in that case North J., in considering whether there was a denial of procedural fairness by the Administrative Appeals Tribunal (AAT), stated at [33]:
…It is not a necessary element of a denial of procedural fairness that it be the result of intentional conduct, or even of negligence. It is enough that it occurred. See Cameron v Cole (1944) 68 CLR 571 at 584 per Latham CJ, at 589 per Rich J, at 593 per Starke J and at 600 per McTiernan J, Taylor v Taylor (1979) 143 CLR 1 at 8 per Gibbs J, at 10 per Stephen J, at 15-16 per Mason J, at 20 per Murphy J and at 22 per Aickin J… Each of those cases concerned the absence of a party (2003) 131 FCR 28 at 39 at the time appointed for a hearing, through no fault of that party, and resulted in the setting aside of the order of the court because of that absence, even though the court that had made the order had been unaware of the reason for the party's absence.”
Mr. Zipser submitted that he referred to this part of Clements in order to submit that in one of the cases referred to in Clements, namely Taylor v Taylor (1979) 143 CLR 1 (“Taylor”), the failure of the relevant party to attend a hearing in the Court, where an order was made against them, was due to the fault of their solicitor. He said that he had submitted this to Barnes FM, and had submitted that the question in that case was whether the Court on application by the party that suffered the detriment, had the power to set aside its earlier order. The High Court in Taylor answered that question in the affirmative in circumstances where there is a breach of natural justice because the party failed to attend the hearing. The Court does have the power to set aside its earlier decision. He referred to Taylor where Gibbs J. at page 4 referred to Cameron v Cole (1944) 68 CLR 571 (“Cameron”), at p 589 where Rich J. said:
"It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case."
I do not accept Mr. Zipser’s submission that Barnes FM failed to properly consider this particular submission. Further, and clearly, with respect, whether Barnes FM failed to properly consider this submission in that case or not is not a relevant issue in the case before me. What is relevant is whether such a submission would assist the applicant's case now before me. In any event at [13] of NBAJ Her Honour clearly dealt with the reference made by Mr. Zipser to those cases in which the absence of the party from a Court hearing where orders were made, through no fault of the party, resulted in the setting aside of the orders of the Court. Her Honour clearly distinguished this situation from the situation before her. It is plain that the context in which these cases arose involved Court hearings and the powers of Courts to set aside their orders. Clearly as Her Honour said in the case before her, as is identical in the case before me, the Court is not being asked to set aside its own orders. The relevant issue here is whether there was a denial of procedural fairness such that it could be said that there was jurisdictional error on the part of the Tribunal. I agree with Her Honour, and in this regard, with respect, apply it to the submission and circumstances before me now. The power of a Court to set aside its own orders involves a very different set of circumstances and in particular, the circumstances involving the Tribunal are in a different statutory context.
To the extent that Mr. Zipser sought to rely on the same arguments, submissions and authorities in the case before me as he did when he appeared before Barnes FM (in NBAJ) then, as I have said, I have read the Judgement of Barnes FM and, with respect, far from being able to say that it is plainly wrong, I agree with the analysis set out by Her Honour and apply that reasoning to the similar circumstances of the case before me to find that the applicants are not entitled to the relief sought.
Mr. Zipser’s argument before me commenced with a reference to the case of Ex parte Al-Mehdawi where at 898 Lord Bridge stated:
"These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his advisers to whom he has entrusted the conduct of a dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events, when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle or none has been suggested in course of argument."
Mr. Zipser’s submission was that the question to be determined is whether this principle applies in this case. In this regard Mr Zipser referred me to the decision of Bryant CFM in M172 v Minister for Immigration & Anor [2004] FMCA 23 (“M172”). M172 involved, at least for the relevant purposes before me, an analogous factual situation. The applicants were invited to a hearing before the Tribunal and their migration agent indicated that they would not attend. The applicants subsequently claimed that they had not authorised the migration agent to refuse the invitation, and that although they were told of the invitation, their migration agent indicated that he would take care of it. Bryant CFM noted in this context that although Ex parte Al-Mehdawi had been distinguished in several immigration cases in England, reliance on such authorities should be cautious as “all Australian authorities require some defect in the decision making process”. Ultimately, as Mr. Zipser submits, Her Honour was not required to decide the issue as insufficient evidence was provided in support of their claim that they had been misled by their agent.
In relation to Bryant CJ’s comments in M172, relating to the requirement of fault or defect in the decision making process, Mr. Zipser referred to the decision of Driver FM in SZBBL and Bennett J. in SZBSZ. In SZBBL at [13] Driver FM states:
“The issue of whether proceedings in a migration Tribunal are rendered procedurally unfair by reason of some fault on the part of a migration agent which prevents an applicant enjoying the full benefit of a hearing before the Tribunal was considered by the Chief Federal Magistrate in the case of M172 v Minister for Immigration and Anor [2004] FMCA 23. The Chief Federal Magistrate considered the relevant authorities comprehensively and concluded firmly that default on the part of a migration agent could not support a claim of jurisdictional error on the part of a review Tribunal. In my view, that issue has now clearly and conclusively been dealt with in this Court. No other arguable jurisdictional error is apparent to me on the record of the RRT decision.”
In SZBSZ Bennett J, on appeal from a decision of the Federal Magistrate Court, considered this same issue. He submitted that Her Honour’s acceptance of what CFM Bryant said, that “all Australian authorities require some defect in the decision making process” is not correct. He sought to distinguish SZBSZ, and the comments to the same effect made by Bryant CFM about the trend of Australian authorities with reference to the following cases: O’Sullivan v Repatriation Commission [2003] FCA 387 at [42]-[59] (“O’Sullivan”), Clements Hot Holding and George. I note in relation to these authorities:
●O’Sullivan was a matter that related to unfairness that stemmed from cross examination on a tax return where material was missing from the return. Sackville J. stated that although it was “the typical case” that a denial of procedural fairness stems from a situation where the decision maker is in breach, “[t]hat does not mean, however, that the decision-maker must be personally at fault before there can be a denial of procedural fairness”.
●Clements was a matter which involved an appeal from a decision of the AAT, affirming a decision of the Independent Indigenous Advisory Committee, upholding an objection to the inclusion of the applicant's name on the Indigenous Electors Roll in Tasmania. The applicant was invited to a hearing before the AAT and failed to attend in circumstances where there was a belief by the Tribunal that the applicant had received the notification of the invitation to the hearing. The Full Federal Court, comprising of Gray ACJ., North and Gyles JJ. held that in the denial of procedural fairness, it is not a “necessary element” that it be the result of intentional conduct.
●Hot Holdings involved an allegation of the apprehension of bias in relation to a Ministerial decision and the pecuniary interest in the outcome of that decision of an officer in the Minister’s Department. Gleeson CJ. in that matter noted at [22] that “procedural unfairness can occur without any personal fault on the part of the decision-maker.”
●George, the last case upon which Mr. Zipser relied in this context, relates to the cancellation of a visa and the failure of the Minister’s Department to notify that person of the Minister’s intention in this regard. I note that in this case although multiple attempts were made to contact the visa holder by letter (for a variety of reasons not received) the deeming provisions were unavailable in this case.
Mr. Zipser also referred to Taylor per Gibbs J at [4], Cameron per Rich J at 589, Woods v Sheriff of Queensland (1895) 6 QLJ at 164 per Griffiths CJ and Hoskins v Van Den-Braak (1998) 43 NSWLR 290 per Mason P. for the proposition that a reasonable opportunity to present and appear to defend a case is a fundamental principle of natural justice.
Contrary to Mr. Zipser’s submissions I note:
1)Driver FM’s decision in SZBBL was heard on appeal by Tamberlin J. who upheld the decision of the Federal Magistrate and said at [9]:
“In my view, there is no basis for a contention that the applicant was deprived of procedural fairness in relation to this matter. The learned Magistrate refers to a decision by the Chief Federal Magistrate in the case of M172 v Minister for Immigration & Anor [2004] FMCA 23 where, after considering the relevant authorities, the Chief Magistrate concluded that default on the part of a migration agent could not support a claim of jurisdictional error on the part of a review Tribunal.”
2)I further note the Judgment of North, Mansfield & Downes JJ. in NADD of 2001 v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 275. This matter involved an alleged breach of the principles of procedural fairness as a result of a delay in the Tribunal handing down its decision and in addition the fact that the delay exposed the applicant to the privative clause provisions of s.474(2). However, in relation to an additional (and relevant to the case before me) ground of review presented by the applicant, at paragraph [21] the Court states:
“The applicant's written submissions before the primary judge then referred to an alleged failure on the part of the applicant's migration agent. If there was any failure by the migration agent, such failure does not establish an error made by the Tribunal.”
3)Branson J. in SZAJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 782 which also involved the failure of an applicant to attend a scheduled hearing before the Tribunal said at [2]:
“Before the Federal Magistrate the appellant placed reliance on an alleged failure by his migration agent to represent him in a competent way. The registration of the migration agent was apparently cancelled at some time before the scheduled Tribunal hearing. The Federal Magistrate noted that no evidence was placed before the Federal Magistrates Court to substantiate the appellant’s claims in respect of the conduct of his migration agent. The Federal Magistrate further noted that in any event the complaints did not go to establish jurisdictional error on the part of the Tribunal. The Federal Magistrate concluded that no grounds upon which the decision of the Tribunal could be reviewed had been established.”
And at [4]:
“This Court sits to review the decision of the Federal Magistrate for possible error. No error on the part of the Federal Magistrate has been identified. The appeal must therefore be dismissed with costs.”
Further, I particularly note that the cases previously put before me (and Her Honour), as Ms. Morgan submitted, generally fall into two categories:
1)Matters between parties before a Court, and where the Court examines its own jurisdiction to re-open a matter, particularly in circumstances where there has been a fraud or misrepresentation. It is clear however, as I have already set out above, that the case before me does not fall into this category. This is clearly judicial review of a decision of the Tribunal which must conduct its review within a certain statutory framework, from which it derives certain statutory obligations.
2)The set of cases where an applicant failed to attend a hearing due to an error (unintentional on the part of the Tribunal member, but which in any event was due to an error within the administration of the Tribunal). Her Honour dealt with these cases at paragraphs [10], [11] and [12] of her Judgement in NBAJ her analysis (with which I respectfully agree) is clearly relevant to the situation before me. There is no evidence whatsoever, and nor is it alleged that the failure of the applicants to attend the hearing was in any way due to any error on the part of the Tribunal or of its administration.
While the issue of fraud was raised (“suggested”) before Her Honour in NBAJ and Her Honour dealt with it at paragraphs [14] and [15] of her Judgement, Mr. Zipser appears to have pressed this issue with greater strength before me. As I have stated he sought to rely on NASB in particular that [53]. But as I have already set out above however, even if Mr. Zipser could establish fraud (and on the evidence this is not the case) on the part of migration agent in the case before me, to the extent that NASB sets out with some certainty where certiorari would lie where fraud had been made out, the extent of this application as set out by the Court in NASB is far short of, and does not encompass, the circumstances of the case before me now. As I have already set out above, the fraud would need to be linked to the other party (being the Minister or someone associated with the Minister) or a witness before the Tribunal. This does not apply here.
Ultimately however, the submission by Ms. Morgan which I also accept and which in my view is the critical issue upon what this case turns, is that whether or not there is fraud by the migration agent and whether or not Mr. Zipser was able to provide evidence to satisfy the Court that fraud had occurred, that issue is, in any event, clearly irrelevant. Even in drawing on the case of Ex parte Al-Mehdawi, Mr. Zipser’s referral to that case was directed to Lord Bridge’s discussion of cases where fraud did unravel transactions. However, ultimately in that case the House of Lords found that a party could not complain of a denial of natural justice where he had not been denied the opportunity of presenting his case by the relevant decision maker, but through the fault of his own solicitors and their negligence. As Her Honour Barnes FM set out in NBAJ at [17]:
“Lord Bridge of Harwich (with whom the other Lords agreed) concluded at 898:
... that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.”
I accept Ms. Morgan's submission that a clear position in the House of Lords, relevantly to what is before this Court now, is that when there is an irregularity that is not the fault of the Tribunal, then there is no room for judicial review of the kind being put forward by the applicant, even in circumstances where some fraud between the agent and the applicant could be established. To the extent that Mr. Zipser has sought to establish that the actions of the migration agent amount to fraud, or that an inference of fraud could be drawn, or that there was a propensity to fraud, or even that the agent’s actions were “akin” to fraud, I can only agree with Ms. Morgan that the fraud that needs to be pleaded is a fraud on (or by) the Tribunal, or without fraud, some error or omission or failure by the Tribunal (whether amounting to fraud or not) in meeting its relevant obligations to the applicant to provide an opportunity to attend the hearing.
Mr. Zipser made no submission and raised no argument of any wrongdoing on the part of the Tribunal to observe its obligations in relation to the invitation to the applicant to attend the hearing. I note however in any event, the relevant material in the Court Book, and the annexures to the affidavit of Catherine Jane Gray, sworn on 7 March 2006, which show relevantly:
1)
The applicant husband applied to the Tribunal for review on
9 July 2002 (application for review at CB 50 to CB 53). The applicant did not nominate anyone to be his authorised recipient for correspondence (CB 51) and gave a home and mailing address to the Tribunal (CB 50).
2)By letter dated 10 July 2002 the Tribunal wrote to the applicant at the mailing address that he had provided in his application for review and set out the process by which the review would be conducted. Relevantly, the Tribunal advised the applicant that it would review the material before it and that if it could not make a decision in his favour on what was before it, it would invite the applicant to attend a hearing. The Tribunal set out in this letter the importance of the hearing as being the opportunity for the applicant to give the Tribunal evidence to support his application (see annexure “A” to the affidavit of Catherine Jane Gray).
3)On 7 May 2003 the Tribunal received from the applicant notification that he had appointed “Mr. David Deng” as his authorised recipient for the purpose of receiving all documents in relation to his refugee application (see annexure “D” the affidavit of Catherine Jane Gray). The Tribunal acknowledged this appointment by letter dated the same day (see annexure “E” of the affidavit of Catherine Jane Gray).
4)By letter dated 23 May 2003 the Tribunal wrote to the applicant by letter sent to his authorised recipient, with a copy sent to the applicant, inviting the applicant to a hearing before the Tribunal scheduled for 18 June 2003 (CB 54 to CB 55).
5)On 28 May 2003 the Tribunal received a “Response to Hearing Invitation” form, signed by the applicant, indicating that he did not want to come to the hearing and consenting to the Tribunal proceeding to make a decision on the review without taking any further action. The Tribunal proceeded, as set out in its decision record (CB 63.9), on the basis of the material that had been put before it.
None of this was disputed by Mr. Zipser. Clearly his argument was that it was the conduct of the migration agent which establishes a denial of procedural fairness giving rise to jurisdictional error. For the reasons set out above the conduct of the migration agent (as conceded by the respondent) was what led to the applicants to not attending the hearing. Even if such action were to amount to fraud, actual or inferred, it does not for the reasons set out above establish a denial of procedural fairness in the circumstances of the case before me such that it could be said to give rise to jurisdictional error on the part of the Tribunal. The applicant in the case before me was clearly given an opportunity by the Tribunal to be heard. The Tribunal put the applicant on notice of the process that it would employ in conducting the review by letter sent to the applicant personally (as appropriate in the circumstances). The actual letter of invitation to the hearing was sent, as directed by the applicant, to his authorised recipient for correspondence. On the material before me there is nothing to show, nor was it argued, that there was any failure by the Tribunal to comply with its obligations pursuant to ss.425, 425A, 441A(4), 441C(4), and nor is there anything to show that the Tribunal was not entitled to proceed to make its decision pursuant to s.426A.
Further, the Tribunal was entitled to proceed as it received advice from the applicant (signed by him) that he did not wish to attend the hearing, and consented to the Tribunal deciding the review without the applicant appearing (s.425(2)(b)). On what has been put before me there is no error on the part of the Tribunal, and no error in the sense of a mistake or omission by the administration supporting the Tribunal, let alone any procedural impropriety or fraud by the Tribunal, in the context of the making of its decision, by way of the invitation to hearing nor indeed in what followed in the making ultimately of its decision. The applicant was put on notice by the letter sent to him personally as to the importance of the hearing in the conduct of the review of his case. While some sensitivity can be shown to the difficulty faced by applicants from a non English-speaking background, there is nothing to show that the applicant was not able to seek independent translation of this document. The applicant's subsequent engagement of Mr. Deng as his migration agent and his appointment as the authorised recipient, clearly led to the situation where the advice that he was given by this agent meant that he did not attend the hearing. This in my view is a matter for the applicant. As Barnes FM said at [33] in NBAJ, the applicant chose to rely on his agent. The applicant may indeed feel justifiably aggrieved at his agent, but I cannot see that what passed between the applicant and his agent amounts to a breach of procedural fairness in the context of the decision making process of the Tribunal (whether within the relevant statutory regime or at general law). I therefore cannot see jurisdictional error on the part of the Tribunal. This application is accordingly dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 6 July 2006
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