SZFMS v Minister for Immigration - [2007] FMCA 32

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMS & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 32

MIGRATION – Refugee – Tribunal invited the applicant to a hearing pursuant to s.441A – no evidence to show conduct of migration agent was fraudulent – Tribunal was entitled to proceed to make a decision – no denial of procedural fairness – no arguable case – no jurisdictional error –application dismissed.

Migration Act 1958, ss.36(2), 425, 426, 441

Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152
NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162
NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicants:

SZFMS & ANOR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 130 of 2005

Judgment of:

Nicholls FM

Hearing date:

21 November 2006

Date of Last Submission:

5 December 2006

Delivered at:

Sydney

Delivered on:

31 January 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms. McWilliam

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 130 of 2005

SZFMS & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

I have before me an application filed in this Court on 17 January 2005 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) said to have been made on 14 March 2000 and handed down on 30 March 2000 affirming a decision of a delegate of the respondent Minister to refuse protection visas to the applicants.
The applicants before the Tribunal are brothers from Fiji.
When the matter first came on for hearing before me on 21 August 2006, the younger of the two brothers (“Applicant SZFMT” – “the second applicant”) indicated that he had already been granted “permanent residence” in Australia and did not wish to proceed with his application to the Court. The second applicant was therefore given leave to withdraw from these proceedings.
It became apparent during the course of this “first” hearing that both the applicant, who was assisted by a Mr. Laba Sarkis, a self-styled “community volunteer”, and the Minister sought to rely on material not in evidence before this Court, and sought to provide evidence by way of assertion from the Bar table. I adjourned the proceedings to allow both sides to file and serve evidence by way of affidavit and any further written submissions in light of that evidence.
When the hearing resumed on 21 November 2006, Ms. McWilliam appeared for the Minister. The applicant was unrepresented and was assisted by an interpreter in the Hindi language. I note that at the conclusion of this hearing, I did grant leave to the respondent to make further written submissions, which were subsequently received on 28 November 2006. Further written submissions were also received from the applicant.
In all, and relevantly, therefore, I have before me:
For the applicant:
1)A second, and latest, amended application filed on 7 June 2005.
2)An outline of written submissions said to have been sent by facsimile to the Court on 18 August 2006, but received by the Court on the date of the “first” hearing (21 August 2006).
3)The affidavit of the applicant affirmed on 1 September 2006.
4)The applicant's outline of written submissions filed on 5 December 2006.
For the respondent:
1)A Notice of Objection to Competency filed on 16 February 2005.
2)A Court Book (“CB”) filed on 7 March 2005.
3)A Notice of Motion seeking dismissal pursuant to Rule 13.10A of the Federal Magistrate Court Rules 2001 filed on 2 May 2005 (subsequently withdrawn).
4)Respondent's outline of submissions filed on 20 May 2005.
5)Respondent's outline of submissions filed 14 August 2006.
6)The affidavit of Andrea Jane Nesbitt, a solicitor in the employ of the respondent's solicitors, sworn on 18 August 2006.
7)The affidavit of Andrea Jane Nesbitt sworn on 19 September 2006, with annexure.
8)The respondent's further written submissions filed on 28 November 2006.
The applicant’s history, as it relates to his pursuit for a protection visa and the subsequent reviews of the original refusal, is summarised in a chronology set out in the respondent’s written submissions of

14 August 2006:
“BACKGROUND
First applicant born in Fiji  26 May 1977
Second applicant born in Fiji  13 February 1987
Applicants arrive in Australia  20 July 1997
DIMIA
Application for a protection visa lodged          28 September 1999
Delegate’s decision  6 November 1999
RRT
Application for review lodged  18 November 1999
RRT hearing (applicants did not attend)  1 March 2000
RRT decision handed down  30 March 2000
High Court – A115 of 2003
Affidavit of Mark Clisby-
annexing draft orders nisi lodged  28 February 2006
Orders of Hayne J remitting
Matter to Federal Court  11 June 2003
Federal Court   S690 of 2003
Orders of Selway J re further
conduct of matter  2 December 2003
Notice of discontinuance filed  10 March 2004
Directions hearing  12 March 2004
Orders of Mansfield J granting
leave to file notice of discontinuance  12 March 2004
Federal Magistrates Court-   SYG130 of 2005
Application for judicial review lodged                 17 January 2005
Directions hearing  10 February 2005
Amended application filed  7 April 2005
Respondent’s notice of motion filed  4 May 2005
(Further) amended application filed  7 June 2005
Respondent’s notice of motion withdrawn              14 June 2005.”
Relevant Material in the Court Book
The application for a protection visa is reproduced at CB 1 to CB 26. A letter from the applicant’s then migration agent (“Tahmina & Associates – Immigration Services”) of the same date is at CB 27 to CB 28. The application for review to the Tribunal, received by the Tribunal on 18 November 1999, is reproduced at CB 34 to CB 37. A letter received by the Tribunal on the same day from the applicant's migration agent is reproduced at CB 38 to CB 39.
While the agent's letter confirmed that the applicant [and his younger brother] were seeking a protection visa (CB 39.4):
“We now request you to please consider our client’s case and decide favourably by granting them a protection visa.”
the letter contained the following contradictory statement (CB 38.5):
“We would like to highlight the fact that our clients applied for the protection visa not under grounds of persecution but that of economic helplessness.”
and further (at CB 38.9):
“Our clients’ have no one to return to in Fiji. They have no one in Fiji from whom they could ask for help. In the event of forced to go back to Fiji, they just cannot survive there because they are helpless in the economic sense. They are very young and have no options left.”
(I note that at the time of the writing of that letter, the applicant was well over 22 years of age).
By letter dated 21 December 1999, the Tribunal wrote to the applicant (the exact circumstances are subject to further consideration below), and advised that it had looked at all the material relating to the applicant's application, but was not able to make a favourable decision and invited the applicant to attend a hearing before it on 1 March 2000 (CB 40 to CB 41). What exactly occurred after that is the subject of dispute between the parties and further consideration below, but in any event, the applicant did not attend at that hearing (see CB 51) and the Tribunal proceeded to make a decision in the applicant's absence.
The Tribunal's decision record (which obviously referred to both applicants before it) is reproduced at CB 55 to CB 60. The Tribunal found that:
1)The applicants had made no claims under the Refugees Convention (CB 59.8).
2)The unwillingness to return to Fiji was based on the absence of any family support and the inability to support themselves financially because of their ages (CB 59.8).
3)While deserving of sympathy, these circumstances did not fall within the scope of the Refugees Convention (CB 59.9).
4)The Tribunal's role was limited to determining whether the applicants satisfied the criteria for the grant of a protection visa, and consideration on humanitarian circumstances was a matter solely for the Minister [for Immigration] (CB 59.9).
5)In all therefore, it was not satisfied that the applicants were persons to whom Australia had protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (“the Act”) for a protection visa.
Applicant’s Complaints Before the Court
The applicant’s amended application asserts the following as the grounds of the application before the Court now:
“1. The Refugee Review Tribunal failed to address correspondence to our given address on folio 35 and folio 43 contrary to statutory requirement of ss425A of the Migration Act.
2.I consider myself as a non-educated person. I did not have the opportunity to receive education, I have verbally explained to my migration agent the severe circumstances I would be facing should I and my brother be compelled to return to Fiji because our mother died and we entered Australia as dependant children, and at the time of making our application to the Department, my brother and I were totally dependent on others and my brother now just turned 18 years in February and I am married to an Australian citizen and I appreciate if the Honourable Court looks at the material and allow us to go ahead with our application as we came innocently illegal in Australia and we strongly believe that the Honourable Federal Magistrate Nicholls will not accept to see us as victims being left with suffering and trauma.”
Following the hearing of this matter, and taking into account the applicant’s latest set of written submissions, it appears the applicant’s complaints are:
1)That the letter of invitation to the hearing was not sent to the applicant’s “address”, and therefore the Tribunal failed to comply with the relevant requirements of the Act.
2)That the Tribunal’s decision was induced “by fraudulent conduct” of the applicant’s then migration agent.
Application for review by the Tribunal
The applicant’s application for review, to the Tribunal, is reproduced at CB 34 to CB 37. Relevantly, CB 35 reveals:
1)The applicant provided a home address (an address in Campsie) (CB 35.2), in the appropriate space on the application form.
2)No address for service was provided (the space on the application form is left blank - there is nothing to indicate that the applicant separately specified any address for service).
3)Below the two spaces provided on the application form for the “Home Address” and the “Address for Service”, the Tribunal notified the applicant:
“We will send all documents to you at this address unless otherwise advised.”
4)The applicant advised that he had a migration agent whom he had authorised to act for him in relation to this application (CB 35.6), and gave the name and address for the agent.
5)The Tribunal's form provides, below the space provided for the inclusion of the agent's details that:
“The Tribunal will send copies of all correspondence to your advisor.” (CB 35.8)
6)The application appears to be signed by the applicant, and dated 16 November 1999 (CB 37.4).
In a letter dated the same date as the application form and received by the Tribunal on the same date as it received the application for review, the applicant’s migration agent advised the Tribunal:
“We had filed an application for a Protection visa on behalf of our clients. This was rejected by the Onshore Department, DIMA. We are now applying for a review of the decision made earlier.” (CB 38.4)
Invitation to Tribunal Hearing
The Tribunal's letter of invitation to hearing before it is reproduced at CB 40 to CB 41. On its face the copy of this letter shows that it is directed to the applicant, care of his advisor, and addressed to the advisor's address (CB 40.3). A copy was directed to the advisor, also addressed at the advisor's address (CB 41.8). A handwritten notation is made on the letter which clearly refers to registered post numbers for the two letters (CB 40):
“Postal: RP8696170”
“Residential: RP8696171”
The letter notifies that a hearing has been scheduled for the applicant at 11 am on 1 March 2000.
A completed response to the “Invitation for Hearing” form was received by the Tribunal on 4 January 2000 (CB 42) from the applicant's migration advisor. The form (at CB 43) contains what appears to be the applicant's signature at the foot of the document, which is dated 30 December 1999, and advises the Tribunal that the applicant did want to attend the hearing.
The material in the court book reveals the following sequence of events:
1)
A further communication from the migration advisor sent by facsimile transmission was received by the Tribunal on

22 February 2000 (CB 44). It sought an extension of time for the review as “the client is trying to provide us some documents for the case” (CB 45).
2)A Tribunal employee responded by facsimile communication (CB 46) and confirmed an earlier telephone conversation with the migration advisor advising that the relevant Tribunal member had not agreed to the request for an extension, and that the hearing scheduled for 1 March 2000 would go ahead. Further, the facsimile indicated that an extension of time might be allowed, if it was considered that the documents, that the applicant's advisor had referred to, were relevant to the matter before the Tribunal.
3)
The agent responded, also by facsimile transmission, dated

29 February 2000 (CB 47), advising the Tribunal that the applicant “is not ready to attend the hearing on 1 March 2000”.
4)A further communication from the applicant's advisor to the Tribunal dated 1 March 2000 (CB 50) reveals the following:
“In refer to our conversation, I have spoken to my client and as per his statement, he does not want to attend the hearing.”
Tribunal’s Case Record
The court book (at CB 48) also contains a printout of the Tribunal's electronic record of action taken in relation to the applicant’s case. This commentary is in the following terms:
“18.11.99 Address information left blank on application - received FM ORP/SYD. K Kilby
26.11.1999 consolidation check complete. J. Pniewski
15.12.99 Pre-constitution check completed. A. Shamsuzzaman
4.1.2000 response to hearing faxed in by applicant who will attend and seeks Hindi Interpreter. J brignell.
22.02.00 Fax from advisor – extension on review time sought. Penczek.
24.02.00 'Hard Copy' of Letter from advisor seeking extension of review time to provide documents. Penczek
28.2.00 Advisor rang to confirm if RRT received the letter from her, seeking extension of review time. I confirmed it to her and said the letter is in member's office and when the member looks at the letter, she will decide on your request for review time. SSri Ganeshan.
28.2.00 Phoned Member re. the above request. The Member advised that she is not prepared to grant an extension. She said she would discuss the nature of the documents, that the applicant is trying to obtain, at the hearing, and if she considers them relevant to his case she may allow time after the hearing for the documents to be provided. I phoned the advisor and informed her of the Member's response. I said I would confirm this by fax. The advisor said she would contact the applicant to find out if he will be attending the hearing and will advise the Tribunal later today. S Alexandrou.
1.3.00 - 11.30 am: Phoned Tahmina Rahim, advisor, to find out if the applicant was intending to come to the hearing today. Ms. Rahim said she had sent a fax advising that the applicant did not want to attend the hearing. After checking the comments box, I informed her that we hadn't received the fax and asked her to send it through again. She said she would fax it through immediately. S Alexandrou
1.3.00 Received fax from advisor stating that the applicant is not ready to attend a hearing. S Alexandrou.
1.3.00 Phoned advisor re. the above fax. I said the applicant may have misunderstood the term ‘invitation’ on the invitation to hearing letter. I said this did not imply that the applicant could choose to come at another time if he felt he was not ready to attend at this time. I reminded her that the Member had already stated she would not postpone the hearing and that she would discuss the nature of the documents he was intending to provide at the hearing and may allow time for submissions after the hearing. I said if the applicant chose not to attend the hearing, then the Member would go ahead and make a decision. He did not have the option of rescheduling at his convenience. The advisor said the applicant she would speak to the applicant and get back to me later today. I said I was not sure whether the Member was prepared to reschedule another hearing, but said I would consult the Member and get back to her. S Alexandrou
1.3.00 - 4.05 pm: Phoned advisor again. She said she had spoken to the applicant who had advised that he wanted to cancel everything. I asked if that meant the hearing or his application. She said the hearing. I asked if he still wanted the Member to go ahead and make a decision. She said yes. The advisor said she was currently attempting to fax confirmation of this to the Tribunal, but was having difficulty getting through. S Alexandrou.”
Applicant’s evidence to the Court by way of affidavit
The applicant's evidence by way of his affidavit of 1 September 2006 filed in this Court is relevantly:
1)That the signature on the “Response to Hearing Invitation” form (CB 43) is not his signature.
2)That the signature on the “Application for Review” form (CB 37) is his signature.
3)That at the time of signing that document, he instructed his migration agent (he says “solicitor”, but in context, clearly he means his migration agent) that he did wish to appear, and give evidence as to why he was unable to return to Fiji.
4)That he had never received any correspondence from the Tribunal, and that the letter reproduced at CB 40 (the letter of invitation to hearing) “never reached my residential address”, which he confirmed as being the residential address that he provided in his application for review (at CB 35.1).
Applicant’s Evidence to the Court
The applicant also gave evidence at the hearing before the Court on 21 November 2006. He was assisted by an interpreter in the “Fiji Hindi” language. The applicant's evidence, during cross‑examination by Ms. McWilliam, relevantly was:
1)That he lodged an application for a protection visa on 28 September 1999 and that Ms. Tahmina Rahim (the migration agent as noted in the court book) assisted him with that application. He confirmed that this migration agent was involved in his “application process” from “the beginning”.
2)
That he lodged his application for review to the Tribunal on

18 November 1999 and confirmed that the signature on this document (at CB 37) was his signature.
3)That Tahmina & Associates “continued” to be his migration agents.
4)That he did not have any conversations with his migration agent after he had lodged the application for review to the Tribunal.
5)That after he had lodged his application the agent had moved “somewhere else”, and that he did not have any contact with her after that time, and did not receive any “documents” from the “migration expert”.
6)The applicant was reminded that the application was lodged on 18 November 1999, and asked to confirm in those circumstances that there had been no contact between him and his migration agent after that time. His answer was:
“She moved in 2000 so after that, I don't have any contact with her”.
7)In answer to the question of whether he could remember what month in 2000 “she had moved”, his response was:
“… in 2001, January or maybe February I had contact with her, but after that, I don't have any”.
He said that the “contact” was that he asked her if any “papers come from migration or not”, but that she had said nothing had come.
8)When asked to confirm that he had said “January or February 2001”, the applicant responded:
“Yes”
(The Court intervened to make sure that the date referred to was “2001”, and not “2000”).
9)With reference to the agent's letter to the Tribunal (reproduced at CB 45 – seeking an extension of time because the applicant allegedly was seeking to provide documents for his case) the applicant stated that he did not recall trying to provide “some documents” to his agent because he did not have any documents to provide. In answer to the question as to whether he had a conversation with the agent about supplying any documents, his answer was:
“Sometimes they asking about that and I haven't provided her.”
10)When asked to further explain as to who “they” may be, the applicant responded:
“… like immigration or Federal or someone like that Tribunal. If they ask some documents and I am providing, but after that I don't have any contact with her so I can’t.”
11)The applicant said he did not recall having any conversation with his advisor on 1 March 2000 as referred to in the Tribunal’s case file (at CB 48.6).
12)He stated that he allowed his agent to prepare his case and relevant documents, and to assist him, but gave her no authority to speak to the Tribunal without “I say anything”.
13)When asked whether he had ever had a conversation about attending the Tribunal hearing with his advisor, the applicant stated that at the time of lodging his application he had a conversation with his agent, that “whenever invitation came from Tribunal or somewhere, then you have to go there and represent yourself and provide some documents”, but that she had not informed him that any letter had subsequently come from the Tribunal. He confirmed that he had told his agent that he did want to attend a Tribunal hearing.
14)With reference to the response to “Invitation to Hearing” form (at CB 43), the applicant confirmed that the signature on that form (at CB 43.9) was not his signature. When asked to confirm that where the form indicated that “Yes” had been “ticked” in answer to the question of “Do you want to come to a hearing?”, that this accorded with his instructions, the applicant replied:
“No.”
But subsequently said that it did accord with his instructions.
Tribunal’s Postal Log Records

I also relevantly note, in particular, the affidavit of 19 September 2006 of Andrea Jane Nesbitt who provided evidence by way of a copy of the Tribunal's “Registered Post Despatch Log” dated 21 December 1999 and as it related to the applicant, and as obtained from the Tribunal's files (see annexure “A” to the affidavit). Relevantly, the Tribunal’s postal log records show that on 21 December 1999 the Tribunal sent the letter of invitation to the hearing, by registered post, to two different addresses for the applicant. They were:
“(The applicant) care of Tahmina & Associates, 1/28A Campbell St, Berala, NSW 2141.”
“(The applicant) 7/53 Fifth Avenue, Campsie, NSW 2194.”
There are two registered post numbers recorded against each of those letters:
“RP8696170” and “RP8696171”
(Both numbers correspond to the registered post numbers recorded at CB 40).
Applicant’s Complaint
The applicant's complaint, as emphasised in his latest (written) submissions of 5 December 2006, is that the two addresses to which the letter was sent (as noted at CB 40 and CB 41), are both the addresses of the migration adviser. Further, that a letter of invitation was never properly sent to his home address, and such an invitation never reached him, or was actually received by him. The applicant denies ever seeing, or receiving, such a letter. The applicant's complaint, therefore, is that the Tribunal failed to comply with the relevant requirements of the Act and that the respondent's assertion (as expressed in particular at paragraph 7 of the further written submissions of 28 November 2006) that the applicant was separately notified in accordance with the provisions of the Act, was not correct. Further, that the “fraudulent conduct of the migration agent” was material to the Tribunal's decision in that it was induced by such conduct.
Relevant Legislation
The application for review to the Tribunal was made on 18 November 1999. The Tribunal's decision was handed down on 30 March 2000. The legislation relevant at the time in relation to the Tribunal's obligations to invite the applicant to a hearing and to give notice of the invitation to appear are set out in the then ss.425, 425A and 441A of the Act. They were in the following terms:

“425 Tribunal must invite applicant to appear

(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)     the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)     subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

“425A Notice of invitation to appear

(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)The notice must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4)The notice must contain a statement of the effect of section 426A.”

“441A Methods of dispatch of certain documents

(1)A document specified in subsection (3) is taken to be duly given to an applicant for review if:
(a) the document is sent (physically, electronically or otherwise) to:
(i)the last address for service provided by the applicant in connection with his or her application for review; or
(ii)the last residential address provided by the applicant in connection with his or her application for review; and

(b)     the Tribunal has a receipt or other evidence indicating the date of dispatch.
(2)    A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:
(a)     by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or
(b)     by leaving it at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.
(3)The documents specified for the purposes of subsections (1) and (2) are:
(a)     an invitation to an applicant under section 424 (other than an invitation to an applicant who is in immigration detention); and
(b)     an invitation under section 424A (other than an invitation to an applicant who is in immigration detention); and
(c)     a notice under section 425A (other than a notice to an applicant who is in immigration detention); and
(d)     a notice under section 430A; and
(e)     a statement given under subsection 430B(6).
(4)It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.
(5)A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.”

The Tribunal’s Obligation

The Tribunal's obligation under the then relevant statutory provisions was that it had to invite the applicant to appear at a hearing before the Tribunal (s.425), and that the notice of this invitation should be given by one of the methods specified in s.441A (s.425A(2)). Relevantly, s.441A provide that a notice under s.425A (s.441A(3)(c)) is taken to be duly given to an applicant if the document is sent physically (relevantly) to the last residential address provided by the applicant in connection with his application for review (s.441A(1)(a)(ii)).
Consideration
The first issue for the Court, therefore, is whether the Tribunal complied with its statutory obligation in giving notice of the hearing to the applicant. The applicant says he never received any such notification personally from the Tribunal, and that the Tribunal was therefore in breach of the relevant statutory requirement. There is some contradiction in the evidence before the Court now. The copy of the letter of invitation (at CB 40 to CB 41) addressed to the applicant indicates that a copy was directed to the applicant, care of his advisor, at the advisor's address, and also indicates that another copy was sent to the advisor, also at the advisor's address. The actual registered post record of the Tribunal, however (see annexure “A” to the affidavit of Ms. Nesbitt of 19 September 2006) shows that the Tribunal sent a letter with the registered post number “RP8696170” to the applicant, care of his migration agent at the migration agent's address, on the relevant date. But that the letter of invitation to the hearing was also sent to the applicant personally, and directly, to his home address. The home address which he gave to the Tribunal at the time of making his application to the Tribunal – an application which he confirmed he signed. There is nothing before the Court now to show the applicant had subsequently provided any other home, or residential, address to the Tribunal. Further, this address is identical with what is written on the copy of the letter of invitation (at CB 40) where the word “residential” is followed by the registered post number “RP8696171”, which is the same reference number appearing in the postal log reproduced at annexure “A” to the affidavit of Ms. Nesbitt.
The applicant relies on what is set out at CB 40.3 and CB 41.9. Despite opportunity to address the evidence at annexure “A” of Ms. Nesbitt’s affidavit of 19 September 2006 the applicant relies only on his evidence that he never personally received the letter of invitation to the hearing. On balance, given all the material before the Court, I accept that the letter of invitation was sent both to the agent's address, and to the applicant at the applicant's residential address. In addition to what is stated in the Tribunal's relevant registered post records, I am persuaded to this finding. I am also persuaded to this finding because in his application for review, the applicant provided no address for service. The Tribunal recognised this as set out in the first item in the Tribunal's case record (CB 48.3) dated 18 November 1999 (being the date on which the application was received) there is the notation:
“Address information left blank on application.”
It must be remembered that at that time, the now s.441G of the Act was not in existence. Section 441G, dealing with authorised recipients, defined in the Act now (s.441G(1)(b)) as:
“authorised by the applicant to do things on behalf of the applicant that consist of or include receiving documents in connection with a review”
did not become operational until 10 August 2001. (I note that s.441G is part of Division 7A concerned with the giving and receiving of review documents).
At the relevant time the Tribunal was therefore faced with a situation where, within the then arrangements, the applicant had not provided an address for service. But he had provided a home (residential) address, the name of his migration agent, and the address of the agent, in circumstances where:
“The Tribunal will send copies of all correspondence to your advisor.” (CB 35.9)
In all these circumstances, and in particular, in the absence of specified address for service, the Tribunal saw the applicant's advisor's address as his postal address and the applicant's home address (as is plainly stated at CB 40) as his “residential” address, and (as set out in the relevant postal log) sent letters accordingly to both addresses. That the copy of the letter of invitation to hearing contains the same address at the head of the letter and at its foot, does not in my view outweigh the evidence contained in the Tribunal's registered postal records which, in all the circumstances, is sufficient and unchallenged evidence to show that the Tribunal sent the letter of invitation to the two addresses as shown in that postal log.
The applicant's complaint is that the Tribunal did not send the letter to his residential address. His evidence is he did not personally receive the letter of invitation to the hearing. But even after this issue became apparent at the second hearing before the Court, and even in light of the opportunity provided to the applicant (and it must be said, his “community volunteer” advisor), the applicant's subsequent submissions make no reference to what is contained in the Tribunal's registered postal records, and merely asserted a reliance on what is set out at CB 40 and 41 only. Nor has the applicant provided any evidence to the Court now despite the specific opportunity provided to him to do so to show that the address recorded in the Tribunal's post log record was not his residential address at the relevant time. The applicant simply asserted that no letter was sent to him at that address and that he did not, in any event, receive any such letter from the Tribunal.
The relevant legislative requirement in this regard is that the Tribunal must invite the applicant to a hearing, that the invitation must be given by one of the methods specified in s.441A (and at the time s.441A provided that a document is taken to be “duly given to an applicant for review” if the document was sent physically (as well as electronically or otherwise)) to the last residential address provided by the applicant in connection with his, or her, application for review. In all the circumstances, that is what the Tribunal did in this case.
Migration Agent’s Alleged Fraudulent Conduct
The Act, as it was at the relevant time, did not make provision for “an authorised recipient”. I agree, therefore, with Ms. McWilliam's submission that no issue arises as to the scope of the migration agent's authority in this regard and following the decision in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152 (“SZFML”).
In any event, in that case the Full Federal Court considered an appeal from a decision of this Court dealing with the principal complaint which was that the Tribunal in that case had made its decision without providing the applicant with an opportunity to appear before it. The circumstances were, as set out at [1] of SZFML,:
“(1) … On 8 June 2004 SZFML applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. The Tribunal appointed a hearing date of 9 November 2004 then changed it to 25 November 2004 because of difficulties in securing the services of a Mongolian language interpreter. Although SZFML had informed the Tribunal, through her migration agent, that she wished to attend on the first hearing date, the migration agent informed the Tribunal, purportedly on her behalf, that she did not wish to attend the rescheduled hearing. No hearing took place. On 26 November 2004 the Tribunal affirmed the delegate’s decision.”
Further, at [7] the Court outlined the basis of the decision at first instance which was that the purported consent, to the Tribunal proceeding without a hearing, lodged by SZFML's agent was not an effective consent by her in that the agent acted without express authority to so consent:
“The general authority apparently conferred upon the agent in the application for review lodged with the Tribunal did not extend to the proffering of such a consent. On that basis, the Federal Magistrates Court was right to set aside the Tribunal's decision and the appeal should be dismissed.”
That case can be distinguished from the circumstances before me in a number of ways:
1)In the present case there was no rescheduling of the hearing.
2)The statutory regime applicable to the case before me is different, as set out above, to the statutory regime applicable to SZFML.
3)In SZFML, before the Court at first instance, both the applicant, and the migration agent gave evidence. As the Full Court stated at [42]:
“His Honour formed the view that SZFML had given her evidence honestly. Her actions were consistent with those of a person who at all times wanted to attend a hearing of the Tribunal so that she could put her case. She was not shaken in cross-examination...”
Further, at [43]:
“The agent's evidence was at times vague. He could not remember the name of SZFML's friends and associates...”
Then at [45]:
“His Honour was of the view that SZFML's evidence had the ring of truth to it. He was satisfied and found that SZFML did not consent to the Tribunal proceeding to decide the review without enabling her to appear before it. He was also satisfied that the agent did not have the authority to inform the Tribunal that SZFML did not wish to attend the hearing. On that basis, subs 425(2)(b) of the Act did not apply.”
In the case before me I had some concerns with the applicant's evidence given at the hearing before me. While the applicant confirmed that he had engaged a migration advisor throughout the whole process of his application before the first respondent's Department and the Tribunal, he claimed to have ceased to hear from her. He then gave differing accounts regarding the date on which he ceased to “hear” from her. At first he said that he had heard nothing from her since he had lodged his application (the relevant date being 18 November 1999). Then he said that he did contact her at some time, but he did not have contact with her after she “moved” in 2000. Then when asked as to what month in 2000, his answer (which was confirmed with him) was that he had no contact with her after “January or maybe February 2001”. He said that he did have contact with her at that time, but that he did not have any contact after that time. His evidence was that in around January, or February 2001, he had contact with her as to whether any “papers had come from migration or not”, and that he was told that nothing had come. Unlike as in SZFML, this applicant’s evidence to this Court continued contradictions which go against a finding that his evidence could be said to have “the ring of truth”.
Further, the material before the Court shows (especially the Tribunal’s case record commentary at CB 48 – and as supported by the various copies of the communications between the adviser and Tribunal employees (CB 44 to CB 47 and CB 49 to CB 50)) that the agent engaged in a course of conduct with the Tribunal that is confirmed, in part, to be consistent with the applicant’s instructions and for the remainder the applicant has put forward no evidence whatsoever (other than his own contradictory evidence) to show that the migration agent acted outside the scope of her authority, let alone that she acted in a fraudulent manner.
Further, it is clear that the Tribunal’s letter of invitation to the hearing was dated 21 December 1999 and sent on the same date. Even if the applicant was honestly mistaken, despite his confirmation that his last communication with the migration advisor was in January, or February 2001, but even if he meant “January or February 2000”, there is nothing to explain beyond the assertion of the alleged “fraudulent conduct of the migration agent” why the agent would not have mentioned to him, in January, or February of 2000, that the letter of invitation to hearing had been received by her. There is simply no evidence before the Court to indicate let alone show and explain that the migration agent pursued a course of conduct over some time that can be said to be, even in part, fraudulent conduct.
Was the Tribunal entitled to proceed to a decision?
I also considered these aspects of this case in consideration of a question not raised directly by the applicant, but as to whether the Tribunal was entitled to proceed to a decision in the way that it did. Section 426A of the Act is, and was at the relevant time, in the following terms:
“SECT 426A Failure of applicant to appear before Tribunal
1) If the applicant:
(a)is invited under s 425 to appear before the Tribunal and
(b)does not appear before the Tribunal on the day on which or at the time and place at which the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it …
Relevantly, the evidence before the Court is:
(1)That the applicant had authorised his agent only to act for him when she had provided him with relevant information and to then act on his instruction.
(2)That the letter of invitation to the hearing set the relevant time and date for the hearing as 11 a.m. on Wednesday 1 March 2000. It specified a place for that hearing.
(3)The Tribunal received a response to its letter by way of the “Invitation to Hearing” form (which the applicant says he knew nothing about), which indicated that he would attend at that time, date and place. While an extension of time was requested (CB 45) by the migration agent, the agent received the Tribunal's “negative” response prior to the hearing (CB 46).
(4)As at 11 a.m. on 1 March 2000, which was scheduled as the hearing date and time, the Tribunal had not heard anything further from, relevantly, the agent, and the applicant did not appear at the hearing. It was not until 11:54 a.m. of 1 March 2000 (CB 47) that the Tribunal would have received the communication from the migration agent that the applicant “is not ready to attend the hearing on 1st March 2000”.
The Tribunal's decision record reveals the following:
“On 29 February 2000, the advisor wrote to the Tribunal advising the applicant was “not ready” to attend the hearing on 1 March 2000. This letter was not received until the afternoon of 1 March 2000, by which time the applicants had already failed to attend the hearing. The advisor subsequently wrote to the Tribunal informing it that the applicants did not want to attend the hearing. In a telephone conversation with a Tribunal officer, she stated that the applicants wanted the application to be determined, but did not want a hearing. Accordingly, this application has been determined on the basis of the written material before the Tribunal.” (CB 56.5)

The applicant has put forward no evidence whatsoever to support his own self-serving assertion (albeit put to the Court by way of evidence, but as set out above with contradiction) that the advisor was acting in a fraudulent manner and therefore deprived him of the opportunity to attend a hearing. In my view, the Tribunal was entitled to proceed to make a decision following the applicant's failure to attend the hearing at the scheduled time of 11 a.m. on 1 March 2000, in circumstances where the applicant had been given notice within the relevant statutory requirements of the time, date and place of this hearing. Subsequently, the Tribunal went on to deal with the issue of the advisor's advice (received after the appointed hearing time) by noting that the advisor had written to the Tribunal informing it that the applicant, (in any event) was “not ready” to attend the hearing and then further did not want to attend the hearing.
In my view it was the applicant's failure to attend at the time, date and place that then led it to proceed to make a decision. Prior to the scheduled hearing time the Tribunal had received from the advisor a request which it saw as being a request for an adjournment of the hearing. This was refused. At the scheduled time of the hearing the Tribunal expected the applicant to attend. He did not. Its reference to the advisor's subsequent advice informing it that the applicants did not want to attend was, in my view, confirmation of its decision to proceed to a final determination. Therefore, even if it could be said that the issue as to the scope of the migration agent's authority did apply (and I have already agreed with Ms. McWilliam’s submission on this point), then in my view it was the applicant's failure to attend at the time that the Tribunal had scheduled for the hearing, not the subsequent advice from the advisor that he did not want to attend the hearing, that led it to proceed to a decision.
In all, therefore, the applicant was notified of the Tribunal's invitation to a hearing which the Tribunal gave to him by sending the letter to his residential address in circumstances where it complied with the relevant legislative requirements at the time. Even though the applicant asserts that he did not receive the notice, in my view, there has been no denial of procedural fairness to the applicant (NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162 and NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184). Nor has the applicant brought any evidence whatsoever to support his claim that the Tribunal's decision was induced by fraudulent conduct by his former migration agent. In my view the Tribunal was entitled to proceed to making its decision without taking any further action.
An arguable case?
Ms. McWilliam also submitted that in any event no evidence had been put before the Court to indicate that there was an arguable case that the Tribunal's result might have been different in the event that the applicant had attended the hearing. The applicant, in her submission, failed to demonstrate any “practical injustice”, with reference to Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 at [36] and [37].
I note in this regard in particular paragraph 7 of the applicant's outline of written submissions of 5 December 2006 (provided after the hearing before the Court):
“The application before the Tribunal involves two children, especially one minor who was traumatised by the shocking death of his mother, and whose father has been traumatised by the wife who sponsored him and was deported to Fiji. That would lead the Honourable Court to see that there was an arguable case that the result might have been different in the event that the two brothers had attended the hearing.”
The Court is well seized of the need not to stray into the area of impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). But the issue is that, even now, the applicant is unable to say what difference his attendance at the hearing before the Tribunal may have made to the outcome. On what had been put before it, the Tribunal clearly found that the applicants' claims, which were that his unwillingness (and his brother’s) to return to Fiji was based on the absence of any family support in that country and their inability to support themselves financially because of their ages, did not fall within the scope of the Refugees Convention.
The applicant, even as at 5 December 2006, does not put anything forward to address that critical finding by the Tribunal. At best, what the applicant has put forward now is that his father was traumatised by his wife who was said to have sponsored him, presumably to come to Australia, and that the father was subsequently deported to Fiji. I cannot see, as the applicant asserts, that there was an arguable case on that basis that the result before the Tribunal might have been different in the event that the two brothers had attended the hearing.
I should also note that at the time of the Tribunal's invitation to the hearing, the applicant can hardly be said to have been a child. The applicant was born on 26 May 1977 (CB 1.5). The Tribunal's hearing was set for 1 March 2000, but even as at the date of the letter of invitation on 21 December 1999, would have made the applicant well over 22 years of age – hardly a child. The reference to “one minor” at paragraph 7 of the applicant’s written submissions is plainly a reference to the applicant's brother who was some 10 years younger than the applicant. But even if the applicant had been traumatised by the “shocking” death of his mother, and affected by the trauma suffered by his father after being rejected by his (presumably second wife who sponsored him to Australia) and subsequently deported to Fiji, this all goes to support the Tribunal's finding that “while deserving of sympathy, these circumstances do not fall within the scope of the Refugees Convention” (CB 59.9).
In all, therefore, the applicant was given an invitation to a hearing before the Tribunal as required by the relevant statutory requirements at the relevant time. There is no evidence other than the applicant's own assertion that his then migration agent acted in a fraudulent manner such as to deprive him of the opportunity to attend the hearing, particularly in circumstances where the applicant does not assert, as for example in SZFML, that the failure to attend the hearing was because the agent notified the Tribunal that he would not be attending, while at the same time not telling him of the Tribunal hearing. I am not satisfied, as I have set out above, that the applicant did not know of the Tribunal's hearing because of any failure on the agent's part as no evidence (other than the applicant’s unsatisfactory testimony) of any fraud on the agent's part has been put before the Court, let alone made out. In my view the Tribunal was entitled to proceed to make a decision on what was before it.
In all therefore, I cannot discern jurisdictional error in what the Tribunal has done in terms of the complaints put forward by the applicant. Nor in all of the material before me now can I discern any other jurisdictional error on the part of the Tribunal. The applicant’s circumstances may, or may not, be deserving of some humanitarian intervention. But this is a matter for the Minister, and not as the Tribunal properly acknowledged, for it to decide. The application is dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 31 January 2007