SZBZG v Minister for Immigration - [2006] FMCA 62

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBZG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 62

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China based on practise of Falun Gong – whether procedural unfairness can result from misconduct by a migration agent considered – whether any misconduct in fact occurred in this case considered.

Migration Act 1958 (Cth), ss.425, 474

A97 v Minister for Immigration & Ors [2004] FMCA 178
B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 M172 v Minister for Immigration & Anor [2004] FMCA 23
NADK of 2002 v Minister for Immigration [2002] FCAFC 184
NAVX v Minister for Immigration [2004] FCAFC 287
NBAJ v Minister for Immigration [2005] FMCA 1668
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBBL v Minister for Immigration [2004] FMCA 185
SZBBL v Minister for Immigration [2004] FCA 834
SZBSZ v Minister for Immigration [2004] FCA 779
SZGJO v Minister for Immigration & Anor [2005] FMCA 1349
VNAA v Minister for Immigration [2004] FCAFC 134

Applicant:

SZBZG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2544 of 2003

Judgment of:

Driver FM

Hearing dates:

24 January, 27 February 2006

Date of last submissions:

27 March 2006

Delivered at:

Sydney

Delivered on:

5 May 2006

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the Respondent:

Ms S Mason

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of the hearing.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2544 of 2003

SZBZG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 22 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had claimed a fear of persecution based upon his practise of Falun Gong.
Background information is adequately summarised in the Minister’s written submissions, which I adopt as follows.
The applicant is a 41 year old Chinese citizen from Tianjin region of China (court book (“CB”) pages 12 to 13). He arrived in Australia on 14 September 2002 (CB 13), travelling on a visitor visa. On 17 September 2002 he lodged an application for a Protection (Class XA) Visa (CB 1 to 26). He claimed to fear persecution because of his practice of Falun Dafa.
A delegate of the Minister refused the applicant’s protection visa application on 27 September 2002 (CB 31 to 42). The applicant applied to the RRT to review that decision on 31 October 2002. On 31 July 2003 the RRT invited the applicant to attend a hearing, pursuant to its obligations under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”).
The RRT received no response to the invitation to attend a hearing and set out the chronology of its actions as follows:
The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 22 September 2003. The invitation was sent to the address for service and residential address provided by the Applicant in his application for review. The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The letter sent to his residential address was returned unclaimed. On 19 August 2003 the Tribunal checked its own file and the Departmental file for a more recent address and a telephone number for the Applicant, and checked the Department’s movement database to confirm that the Applicant was still in Australia. The Tribunal has had no other contact with the applicant. The Applicant did not appear before the Tribunal on the day and at the time and place which he was scheduled to appear. (CB 56.3 to 56.6).
Following the non-appearance of the applicant, the RRT proceeded to make a decision pursuant to s.426A of the Act on 29 September 2003, which it handed down on 22 October 2003 (CB 53), after again providing notice to the Applicant on 30 September 2003 (CB 50 to 51).

The RRT's decision

The RRT found that:
a)The applicant is a citizen of China (CB 62.4).
b)Whilst the applicant provided “reasonably precise” dates for some events, and identified the three basic principles of Falun Dafa, his account was “notably vague and lacking in circumstantial detail on important points” (CB 62.6).
c)The applicant did not provide the RRT with information about:
i)Falun Dafa practice or philosophy other than the three basic principles (as outlined above);
ii)the basic texts of Falun Dafa (Zhuan Falun or Falun Gong), the nature of the basic Falun Dafa exercises or the wheel of law which is a central concept to Falun Dafa;
iii)the nature of the Falun Dafa practice centre to which he belonged, or its activities;
iv)how frequently he practised or whether he practised privately or publicly.
The RRT accepted that whilst there are limits to what could have reasonably been included in his application, as the applicant had claimed to have been a practitioner since 1998 , the omissions raised doubt as to the credibility of the applicant’s claim to be a genuine Falun Dafa practitioner. (CB 62.7 to 62.10).
d)The RRT's doubts as to the applicant’s credibility were strengthened by his failure to explain the outcome of the issue regarding the withholding of his parents’ wages (CB 63.2).
e)Inconsistencies within the applicant’s accounts of his detention in a “brain-washing centre” in February 2003 cast further doubt on the applicant’s credibility (CB 63.5).
f)In contradistinction to independent country information regarding departure from China of persons wanted by authorities, the applicant left China legally in September 2002 having obtained a passport in April 2002 in his own name. This also cast doubt over the applicant’s claim to have come to the adverse attention of authorities by reason of his adherence to Falun Dafa (CB 63.7).
g)It had intended to explore those issues with the applicant and to have offered him an opportunity to demonstrate his knowledge of Falun Dafa however this was not possible by reason of the applicant’s non-attendance (CB 63.8).
h)The applicant’s claims were unsubstantiated and deficient in detail on important issues and did not provide sufficient grounds for the RRT to have confidence in the claimed basis of his alleged fear of persecution (CB 64.3).
These proceedings commenced with a judicial review application filed on 24 November 2003. The applicant now relies upon an amended application filed in court by leave on 24 January 2006. That application contains a single ground of review, namely that the applicant, as a result of the wrongful conduct of his migration agent, was deprived of an opportunity of a hearing before the RRT and that in these circumstances, there was a denial of procedural fairness giving rise to jurisdictional error.

The evidence

I received as evidence the court book filed on 6 May 2004. I also received an affidavit made by the applicant on 20 January 2006 and filed in court by leave on 24 January 2006. The applicant deposes that when he arrived in Australia he engaged a migration agent Bao Yin Yin to assist him with his protection visa application. He deposes that the signatures on pages 9 and 23 of the court book are his signatures in English and in Chinese script. The applicant deposes that the statement on page 25 of the court book is a false statement and he deposes as to his involvement with Falun Gong. The applicant deposes that one or two months after his protection visa application was lodged Bao Yin Yin left the migration agency and his case was handled by Song Tao Lu.
The applicant deposes that the signature on page 46 of the court book is his. He deposes that Mr Lu telephoned him in relation to his review application and advised him that his case had been listed for hearing. He deposes that Mr Lu advised him that:
It is useless for you to attend the hearing. Your application for a refugee visa will be unsuccessful.
The applicant deposes that he did not attend a hearing before the RRT because Mr Lu told him that it was useless for him to attend and that he would definitely not get a refugee visa. The applicant deposes that if Mr Lu had told him that it was important for him to attend he would have attended.
The applicant also deposes as to his efforts (ultimately successful) to obtain legal assistance in these present proceedings.
I permitted Mr Zipser to lead short additional oral evidence from the applicant. He confirmed the salient points in his affidavit.
Under cross-examination the applicant stated that although his affidavit had been prepared for him by Mr Zipser he was aware of its contents and they were true. He said that he had been asked by Bao Yin Yin to sign documents but did not know their contents. He had paid Bao Yin Yin $650. He confirmed that the statement on page 25 of the court book is false. He did not know who wrote it. He confirmed that the signature on page 9 of the court book was his. He confirmed that he did not understand the documents he signed and did not request a translation of them. He confirmed that the signature on page 46 of the court book is his. He did not understand the document. He simply signed it. The applicant said that the person responsible for his review application was Mr Lu. He said that he paid $1,350 to Mr Lu. He said that this was for the proceedings in the Federal Magistrates Court and that he had earlier paid $650 for the purposes of the RRT proceeding.
Ms Mason asked the applicant about page 47 of the court book. He did not recall seeing the document before but admitted he might have seen it. He said that he did not give the information in it to Mr Lu. He did not ask Mr Lu about the strength of his case before the RRT, he simply paid the money required of him.
The applicant confirmed under cross-examination that he had discussed the RRT hearing with Mr Lu and that he asked whether he should attend. Mr Lu had said that it would be pointless. Mr Lu had not prevented the applicant from going and had not told him not to go. The applicant had not requested any details about the hearing from the RRT. He thought that he had to deal through Mr Lu. The applicant did not request any second opinion about the desirability of attending the RRT hearing. He did not understand the review process. The applicant denied receiving a copy of the RRT decision from Mr Lu. He admitted getting a copy of the green book from him.
Ms Mason invited me to draw an inference that the evidence of Mr Lu would not assist the applicant as he had not been called as a witness and the applicant had confirmed under cross-examination that he had spoken to Mr Lu before Christmas and knew where he was. I declined to draw any inference without giving the applicant the opportunity to seek evidence from Mr Lu. The hearing was adjourned on 24 January 2006 in order for the applicant to issue subpoenas.
The hearing resumed on 27 February 2006. At that time the applicant produced a file purportedly coming from his migration agent and was asked questions about it. I permitted Mr Zipser to lead oral evidence from the applicant about the file. The applicant said that he obtained the file from Mr Lu before Christmas last year when he attended his office. He had collected his file from Mr Lu because he had wanted to engage a lawyer. The applicant said he had not removed any papers from the file nor added any nor written anything on the papers on the file. He had looked at them but did not know what they said because they were in English. The file was marked for identification but was not tendered by either the applicant or by the Minister.
Under cross-examination the applicant confirmed that after he took his file from Mr Lu he had engaged a lawyer Zhu Ren. He admitted that paragraph 13 of his affidavit contained an error in that he did not know that Mr Ren had engaged a barrister for him. He had engaged Mr Zipser directly. Ms Mason asked the applicant why he had said under previous cross-examination that he had obtained no documents from Mr Lu other than the green book. The applicant said that he had not understood the question at the time.
Mr Lu then attended in answer to a subpoena directed to him to attend to give evidence. Mr Zipser initially led evidence from him. Mr Lu said that he became a registered migration agent on 3 May 2005 and that he had previously worked for Yin Yin Bao in a clerical capacity, from July 2002 until April 2005. Yin Yin Bao’s business was known as the Migration Education Centre and had been a migration agent’s business. The street address of the business was 213A/413-415 Sussex Street, Sydney. Mr Lu had bought the business from Yin Yin Bao and still operated from the same address.
Mr Lu said that he had attended RRT hearings on occasion and had sometimes gone to the RRT with clients of Yin Yin Bao. He said he did not sit in on RRT hearings but simply directed applicants to the right place.
Mr Lu said that he had met the applicant in or around September 2002 although he could not be sure. He could not recall talking to the applicant about his case. Mr Lu denied the accuracy of the statements in paragraph 9 of the applicant’s affidavit about the alleged conversation with him. Mr Lu admitted assisting the applicant in relation to his application to the Court. Mr Lu said that the address for service on the first judicial review application was an address used as a mail reception address by his migration agency which, at the time, had been owned by Yin Yin Bao. He said that the address of PO Box K412 in Haymarket was an earlier postal address for the agency.
I showed Mr Lu the hearing invitation letter at page 48 of the court book. Mr Lu could not recall seeing it before and could not recall speaking to the applicant about it.

Submissions

I called for written submissions from the applicant and the first respondent. Mr Zipser had previously prepared pre-trial written submissions which were filed in my chambers on 23 January 2006. He augmented those with further written submissions filed on 15 March 2006. Relevantly, Mr Zipser submits as follows:
a)An issue of fact is as follows. The applicant states at paragraphs 9 and 10 of his affidavit dated 20 January 2006 that at some time before his hearing in the RRT he phoned Mr Lu and Mr Lu dissuaded him from attending the hearing. Mr Lu, in cross examination on 27 February 2006, denied the conversation alleged by the applicant. When paragraph 9 of the applicant’s affidavit was put to Mr Lu, Mr Lu said words to the effect:
No. I only worked for Yin Yin Bao. I have no responsibility to encourage or discourage the applicant from attending the hearing.[1]
[1] This and other references in these submissions to oral evidence are based on notes written during the two hearing days, rather than taken from a transcript.
b)The issue is whether the applicant’s evidence or Mr Lu’s evidence should be accepted on this point. It is submitted that the applicant’s evidence should be accepted for the following reasons:
i)Mr Lu gave evidence that in the relevant period he sometimes spoke with clients of Yin Yin Bao’s migration practice (for which he worked as an office clerk) on the phone. For example Mr Lu said:
Maybe sometimes clients call me and ask for the current situation. I then look at the file and tell them about their situation.
ii)Mr Lu could not recall whether or not he met or spoke with the applicant when the applicant was a client of the migration practice.
iii)In contrast, the applicant had a clear recollection of the conversation set out in paragraph 9 of his affidavit.
iv)This is a typical case in which a service provider who sees and speaks with many clients each day has forgotten a conversation with a particular client. In contrast, the client, for whom the conversation is more significant, has remembered the conversation.
c)If Mr Lu’s evidence is accepted in preference to the applicant’s evidence, it is accepted that the application should be dismissed. The reason is that, on the court’s findings of fact, there was no wrongful conduct by the migration agent or the agent’s employee.
d)If the applicant’s evidence is accepted in preference to Mr Lu’s evidence, a question is what are the legal consequences. The applicant relies on the written submissions dated 23 January 2006 and makes the following additional points:
i)In the applicant’s list of authorities, there is the case NBAJ v Minister for Immigration [2004] FMCA 1668. The argument being run in the present case was run in NBAJ. The decision of Barnes FM, although against the applicant, provides a thorough consideration of the argument.
ii)As the judgment in NBAJ at [14]-[15] indicates, in that case the applicant alleged fraud by the migration agent. The applicant does not allege fraud in the present case.
iii)In NBAJ at [13] Barnes FM distinguished Cameron v Cole (1944) 68 CLR 571 and Taylor v Taylor (1979) 143 CLR 1. In Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [33] Gray ACJ and North J referred to Cameron v Cole and Taylor v Taylor with approval in the course of considering whether there was a denial of procedural fairness by an administrative tribunal. The reference in Clements v Independent Indigenous Advisory Committee to Cameron v Cole and Taylor v Taylor supports the point that the latter two cases are not distinguishable.
iv)The decision in NASB v Minister for Immigration [2004] FCAFC 24 [52] is relevant, although against the applicant. The Full Court at [52] refers to irregular conduct. In the present case there was irregular conduct by the migration agent. The applicant says that certiorari will lie in such circumstances and that NASB is wrong in suggesting that certiorari will not lie when the irregular conduct is by the applicant’s agent.
Ms Mason augments her initial written submissions (which were directed towards the original judicial review application) with further written submissions filed on 27 March 2006. Relevantly, the Minister makes the following submissions:

Question as to law

a)Despite what was submitted for the applicant by the written submission initially filed before the hearing, the question of law squarely sought to be challenged on his behalf is well settled. It is an established principle that there is no jurisdictional error by reason of a migration agent failing to tell an applicant about the hearing and responding to the RRT that the applicant would not attend, and it is no answer merely to tell this Honourable Court that the Chief Federal Magistrate was wrong in M172 v Minister For Immigration & Anor [2004] FMCA 23 at [27] to [31] per Bryant CFM
b)The circumstances presently facing the Court are a fortiori to that M172 in which it was determined that there was no error. The view outlined in M172 at [27] to [31] per Bryant CFM is entirely correct. Unlike the decisions from England, jurisdictional error in Australia requires that the defect be in the decision making process. This is because jurisdictional error requires a defect of jurisdiction, not just some unfairness at large. A tribunal cannot be said to have erred in its exercise of jurisdiction because of something a third party did or did not do, about which the tribunal knows nothing and has never been on notice. Respectfully, that is a nonsense. At [28] her Honour stated:

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."
(emphasis retained).

c)Both this Honourable Court and the Federal Court are agreed that the position set out by the former Chief Federal Magistrate in M172, is correct at law: see for example SZBSZ v Minister for Immigration [2004] FCA 779 per Bennett J at [13] to [15] and SZBBL v Minister for Immigration [2004] FCA 834 per Tamberlin J at [8] to [10].
d)In M172, the CFM found that there was no jurisdictional error by reason of a migration agent failing to tell an applicant about the hearing and responding to the RRT that the applicant would not attend the hearing. The respondent submits that such a scenario is more extreme than the factual circumstances which presently confront the Court.
e)The Full Federal Court has described rejection of the applicant’s case as "an inevitable consequence" of non-attendance: NAVX v Minister for Immigration [2004] FCAFC 287 at [5].
f)This is the case whether or not an applicant attends by reason of an election on their part: see B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 per Dowsett J at [23]; or by no fault of their own: see VNAA v Minister for Immigration [2004] FCAFC 134 at [16] where Sundberg & Hely JJ stated:
Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.
g)Similarly in A97 v Minister for Immigration & Ors [2004] FMCA 178 per Raphael FM at [11], his Honour found that irrespective of whether the applicant had not been told or the agent had acted without authority, there was no jurisdictional error. In NADK of 2002 v Minister for Immigration [2002] FCAFC 184 per Tamberlin, Sackville & Hely JJ at [9], [14] and [16] where the Court was willing to accept that applicant was not told but even so found that matter was of no of legal relevance and did not constitute jurisdictional error.
h)B41 of 2003 [2004] FCA 30 per Dowsett J at [22]-[25] also confronted such an issue. Paragraph [23] of that decision is completely analogous to the present situation insofar as the applicant in that case determined not to attend a hearing after his migration agent advised him as to his likely prospects of success. In that passage, his Honour stated:
The Tribunal had tried to advise him of these matters in the correspondence. Even accepting that he did not receive those letters, I cannot accept that he was unaware of the purpose of the hearing. He asked the immigration adviser whether he could attend and clearly understood that it was the occasion for making submissions. She did not tell him that he could not attend, but that there was no point in his so doing. That was a matter for judgment. He chose to act on this advice. That he did not attend the hearing was a consequence of such choice. There was no denial of procedural fairness. See R v Home Secretary Ex parte Al-Mehdawi [1990] 1 AC 876 at 895 and SBA Foods Pty Ltd v Victorian WorkCover Authority & Anor [2001] VSC 276 per Gillard J at [274–283]. See also Stefanovski v County Court of Victoria & Anor [2000] VSC 417 per Gillard J at [175–190]. A passage from the decision in Al-Mehdawi was cited with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy & Ors (2002) 210 CLR 438 at [22]. However the passage in question was not directly supportive of the outcome in Al-Mehdawi. I also note that his Honour there observed that: Procedural unfairness can occur without any personal fault on the part of the decision-maker.

(emphasis retained)

i)These principles are now trite law.
j)It is advanced on behalf of the applicant that the reason that the reliance outlined above is incorrect is because Australian law does not require a defect in the decision making process. With respect, that is not so.

Questions of fact

k)This case is a fortiori to the factual circumstances of the English cases and M172 and directly analogous to B41 of 2003 because here, it was not a case that the representative was negligent – rather he presented a bleak opinion as to prospects of success and the applicant merely took on board that opinion and elected, by himself, not to attend.
l)The applicant was not denied the opportunity to attend the hearing. He knew there was to be a hearing, he knew he was permitted to go.
m)Under cross examination on 24 January 2006 the applicant conceded that:
i)he was aware of the hearing;
ii)he knew when and where it was on;
iii)his adviser had told him he would not succeed and therefore his attendance at hearing would likely make no difference.
iv)based on that advice, he elected not to attend.

n)Clearly, the applicant made an informed choice, of exactly the same kind described by Dowsett J in B41 of 2003. It is not a case, such as that which confronted the Court in M172 where the applicant’s migration adviser responded on his behalf, contrary to instructions and declined the invitation. The applicant did not tell the agent to respond.
o)Much is made on behalf of the applicant of evidence given by the applicant’s migration agent Mr Lu (see paragraphs [3] to [4] of the applicant’s further submissions filed and served on 16 March 2006). The exchange set out in those submissions is not challenged by the respondent. However, the respondent submits that what is apparent from Mr Lu’s answer is:
i)He was not answering with any specific recollection of his discussions with this applicant in particular, rather he was extrapolating from his employment duties as to whether it was likely he would have done so.
ii)Mr Lu’s recollections in response to questions from the learned Federal Magistrate were that he could not specifically recall the discussion he had with the applicant.

p)Accordingly, the evidence at its highest suggests that Mr Lu has no specific recollection but considers such an exchange unlikely.
q)In order to succeed in his primary submissions that the evidence of Mr Lu ought be accepted, the applicant must ergo be submitting that both the version recounted in paragraph 9 of his affidavit sworn 20 January 2006, together with his evidence at hearing ought not be believed.
r)That is an extraordinary submission for the applicant and his Counsel to be making. True it is that the applicant goes on in paragraph 6 of the further submissions to submit in the alternative a scenario if the applicant is to be believed, however which cites NBAJ v Minister for Immigration [2005] FMCA 1668 however as is conceded by the applicant, this case does not assist him (and in fact this was a further case where her Honour Barnes FM found that the English authorities referred to above do not adequately reflect the position on this issue in Australia.)
s)The applicant cannot overcome the obstacle of his own adamance during cross-examination that he had been told of the hearing but having been advised of his prospects of success he elected not to respond or attend. The applicant has deposed to this in an affidavit and given affirmed evidence from the witness box under cross-examination. The applicant’s version as advanced ought be accepted in that regard.
t)What was never put to Mr Lu during his examination in chief by the applicant’s counsel was that he did not tell the applicant about the hearing or that he had been instructed to accept the hearing invitation which he had then subsequently not done. However, even if that were the case, such a failure to act on instructions would not constitute a jurisdictional error: see A97 v Minister for Immigration & Ors [2004] FMCA 178 per Raphael FM.
u)It has been suggested on behalf of the applicant during hearing on 24 January 2006 that the Migration advisor included false addresses in preparing the applicant’s various applications throughout the various stages of the application process.
v)When asked about the details of his discussions with his adviser, the applicant volunteered several times that he did not discuss content much with his agent as he was merely paying for the agent to get him a protection visa.
w)The Minister submits that this is a similar stance as the applicant in SZGJO v Minister for Immigration [2005] FMCA 1349 per Driver FM at [38]. Here the applicant is in no position to complain about the conduct of his case (if in fact Mr Lu did misconduct himself, which the respondent submits is not borne out by the evidence) or the documentation by his agent when the applicant was indifferent to the process and was instead, result driven and oriented.
x)In the Minister’s submission the applicant was not concerned that the addresses or even information in the applications was correct, provided it resulted in a protection visa for him.
y)Moreover, the provision of false addresses, if indeed that did occur, is of little or no moment considering the applicant admits that he was aware of the hearing and elected, on advice, not to attend.

Conclusion

z)There is no jurisdictional error manifest. Accordingly the decision is a privative clause decision for the purpose of s.474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby & Hayne JJ.

The applicant was given the opportunity to make submissions in reply but none were received.

Reasoning

This case bears some similarity to SZGJO v Minister for Immigration & Anor [2005] FMCA 1349. In both cases false protection visa claims were made on behalf of an applicant which the applicant subsequently disallowed and asserted no knowledge of. In both cases, however, the applicant had placed his trust in a migration agent and authorised or permitted the agent to prepare documents on his behalf, including the making of protection visa claims. What I said in SZGJO at [38] has some relevance in these proceedings. The applicant in this case now states that false claims were made in his protection visa application but he cannot escape responsibility for those false claims. He was as recklessly indifferent to the content of his protection visa application as was the applicant in SZGJO. The difference between SZGJO and this case is that in SZGJO the applicant was seeking to take advantage of invalidity in both his protection visa application and his subsequent review application to the RRT. In this case, the applicant restricts himself to asserting procedural unfairness in that he says he was denied the opportunity of a fair hearing before the RRT (at which I am asked to believe he would have made true claims of a fear of persecution) because of the wrongful conduct of his migration agent.
Mr Zipser, for the applicant, recognised at the trial of this matter that the applicant could hold little hope of succeeding on that ground of review in this Court. However, the argument was put and the evidence led and tested so as to protect the applicant’s rights on appeal.
There is a dispute of fact between the applicant and his former migration agent Mr Lu as to what advice was or was not given to the applicant concerning his attendance at a hearing before the RRT to which the applicant was invited. There is no dispute about the receipt of the invitation. The applicant asserts that he was dissuaded from attending a hearing before the RRT because of Mr Lu’s advice that his position was hopeless and attendance at the hearing would do no good. Mr Lu could recall no such conversation. Mr Lu denied the accuracy of the statements attributed to him by the applicant in paragraph 9 of his affidavit but his denial appears to have been based upon doubt that he would have said those words, not any recollection that he did not say them.
The veracity of the evidence of both the applicant and Mr Lu was open to question. Both were involved in the making of a protection visa claim based upon a statement of facts which the applicant now acknowledges was false. In the applicant’s case, he was recklessly indifferent to the accuracy of that application. In the case of Mr Lu, he was either knowingly concerned in making a false application or at least careless in obtaining proper instructions. The applicant was unreliable in his evidence as to what documents he obtained from Mr Lu following his withdrawal of instructions from him.
I formed an adverse view about the character of both the applicant and Mr Lu and the reliability of their evidence. Both have in the past been at least very careless with the truth and have been willing to make (or permit to be made) statements to the Minister that are now acknowledged to be false. It is unnecessary to decide whether Mr Lu dissuaded the applicant from attending a hearing at the RRT in a conversation in precisely the terms alleged by the applicant. Mr Lu conceded that he did from time to time have conversations with clients about the state of their applications and their prospects. It would have been reasonable and logical for the applicant to have had such a conversation with Mr Lu after they received the RRT hearing invitation. It would have been unsurprising if Mr Lu had told the applicant that his prospects before the RRT were poor. The decision of the Minister’s delegate[2] was that the applicant’s claims were not genuine and in any event were so lacking in detail that they could not be accepted. We now know that, indeed, false protection visa claims had been made. It would hardly be surprising, in those circumstances, for Mr Lu to have advised the applicant that his prospects of success before the RRT were very poor. I am prepared to infer that that did occur. I also accept the applicant’s evidence that he acted upon advice received.
[2] court book, page 33
I am unwilling to accept, on the state of the evidence, that there was anything improper in Mr Lu providing advice to the applicant about his prospects of success before the RRT. Ordinarily, it is highly desirable for applicants to attend tribunal hearings because that is their opportunity to dissuade the presiding member from affirming the delegate’s decision. It is almost invariably apparent from the terms of a hearing invitation that a failure to attend the hearing is likely to result in affirmation of the delegate’s decision. There are probably some cases where a strategic decision can reasonably be made that it would be better for an applicant not to attend a tribunal hearing. One such circumstance is probably where false claims had been made in support of the protection visa application. If an applicant at a tribunal hearing sought to conceal that falsity there would be a likelihood that the falsity would nevertheless be revealed and the applicant’s credibility would be destroyed. If the applicant revealed the falsity and sought to explain it there would be a risk that nothing the applicant said would be believed, upon the basis that the applicant had previously made false statements so why should it be accepted that he was subsequently telling the truth? The way to avoid such a situation is for applicants to tell the truth from the beginning, and for those assisting them to ensure that they receive proper instructions and that those instructions are properly documented.
Even if it could have been established on the evidence that Mr Lu had improperly dissuaded the applicant from attending the RRT hearing, on the basis of the present Australian authorities, no jurisdictional error would have been established. I agree with and adopt, for the purposes of this judgment, Ms Mason’s submissions set out at paragraph 25(a)-(h) above. In addition, the detailed and careful judgment of Barnes FM in NBAJ v Minister for Immigration [2005] FMCA 1668 contains a useful survey of the Australian and English authorities relevant to the applicant’s argument of unfairness, and rejects it. I agree with Her Honour. If, as Mr Zipser submitted in his pre-trial submissions, I overstated the position in SZBBL v Minister for Immigration [2004] FMCA 185 at [13][3], I am now able to say that the issue of whether proceedings are rendered procedurally unfair by reason of some fault on the part of a migration agent which prevented the applicant enjoying the benefit of a tribunal hearing has been clearly and conclusively dealt with in this Court, by answering “no”.
[3] the decision was upheld on appeal: see SZBBL v Minister for Immigration [2004] FCA 834 at [9]
I find that the decision of the RRT is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. Mr Zipser limited the expense of the proceedings somewhat by restricting the applicant to a single ground of review. However, the hearing of that ground extended to two hearing days because of the need for the applicant to obtain the evidence of Mr Lu. Written submissions were also required and significant preparation was required of the Minister before the initial hearing on 24 January 2006. It follows that the costs in this matter incurred by the Minister would have been more than average. In my opinion, the Minister would have incurred costs of not less than $6,000 when assessed on a party and party basis. I will order that the applicant pay costs fixed in that amount.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 May 2006