SZEEU v Minister for Immigration

[2007] FMCA 1691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEEU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1691

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – complaint about actions of a migration agent – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 425, 427

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethic Affairs v Guo & Anor (1997) 191 CLR 559
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277

Applicant: SZEEU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2391 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 8 August 2007

Delivered at: Sydney

Delivered on: 26 October 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Bengali interpreter

Counsel for the Respondents: Mr A McInerney

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application filed on 28 August 2006 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2391 of 2006

SZEEU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZEEU”. The applicant is a 24 year old male who claims to have been born in Dhaka, Bangladesh. He states that he speaks, reads and writes Bengali and English. The applicant claims that he was a student involved in student politics and had numerous confrontations with the Bangladeshi National Party (BNP) and states he was harassed and intimidated on many occasions after the BNP came to power in 2001. He claims his life was under threat because of his homosexuality and political association with the opposition group, the Awami League. He claims that if he returns to Bangladesh, Muslim terrorists will kill him.

2. The applicant arrived in Australia on 13 November 2003 and made an application for a Protection (Class XA) visa on 23 December 2003. A delegate of the Minister refused to grant a visa on 20 January 2004 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision, which was dismissed. On appeal, the Full Court of the Federal Court of Australia set aside that decision and remitted the matter to the Tribunal to be determined according to law. The second Tribunal rejected the applicant’s claims on a credibility basis. The current application to this Court seeks review of the second Tribunal decision made on 18 July 2006 and notified to the applicant on 8 August 2006.

3. A Court Book (“CB”) was prepared and filed by the first respondent's solicitors and I have marked it Exhibit “A”. That document was read into evidence.

4. The amended application filed on 15 November 2006 contains three grounds of review:

   a)Ground one – “The Refugee Review Tribunal failed to put any weight in regards to my previous migration agent’s wrong doing”

   b)Ground two – “The Refugee Review Tribunal depended on the wrong report such as the Department’s movements records in regards to my sex partner Md. Tanvirul Islam”

   c)Ground three – “The Refugee Review Tribunal, without making any investigation, said that I am not satisfied that the two documents said to have been signed by a friend of the Applicant and by his parents are authentic”

Consideration

Ground one

1. The particulars of the first ground read:

   I claimed before the Tribunal that I was misadvised and victimised by the previous migration agent Mr Hoq Mollah.  The Tribunal accepted that the registration of Mr Hoq Mollah was cancelled by the regulatory authority in failing to give proper immigration advice, but the Tribunal failed to realise that I was one of victim of Mr Hoq Mollah’s wrong advice.

2. The applicant’s written submissions state that his migration agent did not record his claims accurately and submitted a statement without his knowledge by forging his signature. The applicant claims that he was advised not to expand on his answers during the first Tribunal hearing. He claims that when he arrived in Australia, he could not lodge his visa application without assistance and depended on the migration agent because of language difficulties. Consequently, he suffered as a result of his agent’s incompetence as the application did not accurately reflect his claims. The agent’s registration was subsequently cancelled. The applicant claims he has been denied the opportunity to tell the Tribunal about persecution he suffered because of the mistake of his agent.

3. Mr McInerney, for the first respondent, submits that this argument was put to the second Tribunal during its hearing (CB 204.3, 206.2) and was rejected (CB 211.6-212.2).

4. Mr McInerney drew the Court’s attention to SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 and submits that although it is not directly relevant on the facts of this case, it is important because one of the allegations made by this applicant relates to the conduct of his migration agent.

5. The Tribunal’s “Findings and Reasons” state:

   The applicant’s explanation for this absence of any previous reference to these incidents, as he expressed it at the second Tribunal hearing and in his letter to the Tribunal of 13 July 2006, is that all the blame is said to be laid at the door of the original immigration agent, Hoq Mollah.  He claims Hoq Mollah did not record his claim accurately, submitted a statement without his knowledge by forging his signature, advised him not to expand on his answers at the first Tribunal hearing and retained his passport to extort money from him.

   (CB 211.2)

   Here, the Tribunal rejected the applicant’s claims on a credibility basis. That is, the applicant made a number of claims to the second Tribunal which had not been raised with the first Tribunal. The Tribunal dealt with that complaint. It found that it did not explain the applicant’s failure to have made claims at the later Tribunal hearing which had not been made at all at the earlier hearing.

6. Mr McInerney submits that SZFDE dealt with an allegation of fraud by a migration agent. Critical to the outcome of that decision was that fraud by the migration agent was fraud on the Tribunal and, for that reason, the Tribunal did not exercise its jurisdiction which resulted in jurisdictional error.

7. SZFDE at [3] summarises the circumstances of that case:

   3.  The ground upon which the appellants sought relief in the Federal Magistrates Court was that the decision of the Tribunal was affected by the fraud of Mr Fahmi Hussain. He was said to have represented himself to the appellants to be a solicitor and a migration agent licensed in accordance with Pt 3 (ss 275-332H) of the Migration Act 1958 (Cth) ("the Act"). The first appellant paid Mr Hussain a total of $8,400 (and lent him $5,000) for him to act for the family with respect to the Tribunal proceeding. She followed his advice, in particular, not to attend the Tribunal hearing for which s 425 of the Act provides.

8. Mr McInerney submits that that is the critical factual issue which distinguishes SZFDE from this case. The High Court re-stated the question before it at [37]:

   37.    But what of a case such as the present? Here, on the appellants' case, the decision not to appear, whilst consciously made, was the result of the fraudulent conduct of a third party, Mr Hussain, but neither the appellants nor the Tribunal appreciated the situation before the Tribunal made its decision. Before answering the question just posed, some further facts need to be understood.

9. The Court then observed at [49] and [52]:

   49.    The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. That this is so is manifest by the reasons given by the Tribunal…

   51. No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.

10. Mr McInerney submits that the Court’s reasoning in SZFDE was that the applicant had seen a migration agent and had paid money. That agent was not properly licensed and advised to the applicant not to attend the Tribunal hearing. The applicant acted in accordance with that advice and did not attend the hearing granted by s.425 of the Migration Act. The Tribunal proceeded on the basis that the applicant had made a conscious decision not to attend, however the non-attendance was in effect the subject of a fraud, not just on the applicant but on the Tribunal’s process. The judgment which resulted from such fraud was in effect no judgment at all.

11. Mr McInerney submits that the case before this Court is clearly distinguishable from SZFDE. First, the allegations made by the applicant against the former migration agent do not have the character of fraud as described in SZFDE. In any event, the allegations do not explain why the applicant made different claims at the second Tribunal hearing to those made at the first Tribunal hearing. In SZFDE, the processes of the Tribunal were interfered with, whereas in this case there was no fraud on the part of the applicant’s former migration agent, Mr Hoq Mollah.

12. I accept the submissions of Mr McInerney and agree that the circumstances in this case can be distinguished from those considered in SZFDE. The second Tribunal rejected the applicant’s claim on the basis of credibility and his responses which were inconsistent those at the first Tribunal hearing. This ground cannot be sustained.

13. The Tribunal addressed the issue of the applicant’s migration agent. While accepting the subsequent cancellation of his registration as a migration agent, the Tribunal noted that even a flawed agent such as Mr Mollah would have realised the significance of the applicant’s claims. The Tribunal formed the view that the applicant did not mention them to Mr Mollah. The applicant claims that upon discovering that Mr Mollah had not submitted his claims accurately, he was so afraid that he did not raise these issues during the hearing. The Tribunal formed the view that this explanation was implausible.

Ground two

1. The particulars of the second ground read:

   The Tribunal did not place any weight on the absence of movement records for Md. Tanvirul Islam. In response of Tribunal’s letter dated 20 June 2006, I wrote to the Tribunal that my partner Md. Tranvirul Islam was suffering from blood cancer and was in treated at Prince of Wales Hospital in Sydney.  As he was died, the information about his existence in Australia could be found from the Hospital.  But without made any inquiry the Tribunal wrongly made decision about Mr. Tranvirul Islam.

2. The applicant submits that he made the claim to the Tribunal that he had a relationship with Mr Islam. To support this claim, he provided both their memberships for the New Mardi Gras. The Tribunal placed no weight on this claim because of an absence of movement records and that the documents do not substantiate the claimed relationship. The applicant later requested that the Tribunal contact the hospital where Mr Islam had been treated. The applicant submits that the Tribunal failed to find out whether Mr Islam was in Australia and then returned to Bangladesh in March 2006 where he passed away. The applicant claims that the Tribunal placed no weight on his relationship which was significant with respect to his persecution in Bangladesh.

3. Mr McInerney contends that the Tribunal is under no duty to investigate nor consider utilising permissive statutory powers which might enable it to investigate: s.427(1)(d) of the Migration Act; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [21], [24] and [25]. Mr McInerney submits that this ground effectively pleads merits review.

4. Merits review is not available in this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ. Merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of the earlier decision. Judicial review asks whether the decision-maker was authorised to do what he/she did under the prevailing law, not whether the decision was the best decision which could have been made in the circumstances. Merits review provides a complete rehearing of all the issues relevant to the application. In the circumstances, this ground cannot be sustained.

Ground three

1. The particulars of the third ground state:

   The Tribunal considered the two documents were not genuine.  However the contact details of the writers who provided those letters were on it. Without making any investigation about its authenticity the Tribunal assumed that the two documents were not authentic.

2. The applicant’s written submissions refer to the following comment the Tribunal:

   I am not satisfied as to the authenticity of the two statements submitted to the Tribunal under cover of the applicant’s statement on 24 May 2006 and said to have been signed by his parents and his friend in Sydney, Md. Mostafa Kamal.

   (CB 213.2)

   The applicant claims that the Tribunal made the above comment in bad faith as it could have contacted the writers of the letters. However the Tribunal did not make any effort to prove the documents’ authenticity.

3. Mr McInerney submits that there is nothing in the Tribunal decision to suggest bad faith on its part. The Tribunal was not required to contact the alleged writers or to otherwise prove the authenticity of the documents: WAGJ.

4. The facts pertaining to the application need to be supplied by the applicant himself in as much detail as is necessary to establish the facts. It is for the applicant to make out his own case: Minister for Immigration and Ethic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. The applicant did not call any witnesses to give evidence at the second Tribunal hearing. The letters in dispute were submitted by the applicant on 24 May 2006, before the Tribunal hearing of 19 June 2006. The hearing invitation issued on 9 May 2006 quite clearly stated that the applicant could bring witnesses. The applicant elected not to pursue this course but instead produced letters, one of which was signed by a witness in Australia. That witness would have been useful to the applicant if called to give evidence verifying the letter. I am satisfied that this ground of review cannot be sustained.

Conclusion

1. The applicant in these proceedings is a self-represented litigant and was assisted at the hearing by a Bengali interpreter. Mr McInerney for the first respondent assisted the Court with written and oral submissions in respect of the amended application. I am satisfied that the amended application does not contain any ground which identifies jurisdictional error on the part of the Tribunal. Neither is it apparent that any other grounds of review exist to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.

2. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  26 October 2007