SZFYS v Minister for Immigration - [2005] FMCA 1172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFYS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1172

MIGRATION – RRT decision – applicant did not attend hearing – no error by Tribunal making decision without taking further action – possible misconduct by agent irrelevant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.48B, 91R(1)(b), 91R(2), 412(1)(a), 414(1), 422B, 422B(1), 424A(1), 424A(3)(b), 425(1), 425A, 426A, 426A(1), 441A(4), 441A(4)(i), 441A(4)(ii), 441C(4), 441G(1), 474(1), 483A, Pt 7 Div 4, Pt 8
Migration Regulations 1994 (Cth), reg.4.35D

Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
R v Secretary of State for the Home Department; Ex parte Al Mehdawi [1990] 1 AC 876
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SZEMB v Minister for Immigration [2005] FMCA 448
SZEUZ v Minister for Immigration [2005] FMCA 967
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZFYS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG744 of 2005

Judgment of:

Smith FM

Hearing date:

17 August 2005

Delivered at:

Sydney

Delivered on:

26 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Refugee Review Tribunal be included as second respondent.
The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG744 of 2005

SZFYS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks relief by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 October 2003 and handed down on 30 October 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.
The applicant arrived in Australia on a one month business visa in November 2002. On 13 November 2002, four days after his arrival, an application for a protection visa was lodged in his name. The application was signed in relevant places by the applicant. He has today confirmed his signature, although he maintains that the forms were blank when he signed them. Whether or not this is true, he does not contest that he authorised a migration agent, Mr Jack Meng, to take all steps necessary to make applications and to obtain a favourable decision. The forms included a written authorisation by the applicant of Mr Meng to act on his behalf in all “dealings with the Department of Immigration and Multicultural and Indigenous Affairs”.
The forms gave Mr Meng’s address as the applicant’s “current postal address in Australia” and, at two places, gave an address at Hurstville as the applicant’s “current residential address in Australia”. The applicant in oral evidence before me denied that he had ever given this address to Mr Meng and that he had ever lived at that address. For most of his evidence he maintained that he had always lived at Parramatta, although he could not recall the street name. At the end of his evidence he also recalled living in a hotel in Sydney for a short period after arriving in Australia. If so, it is possible that Mr Meng might have inserted a residential address where he thought the applicant might be moving to, but it is difficult to believe that he would have inserted an address without any relevant instructions. In the absence of evidence from Mr Meng, and given the lapse of time and the applicant’s poor memory which was apparent when he gave evidence, I am reluctant to draw conclusions on what home address or addresses were given by him to Mr Meng in 2002. As I shall indicate below, this is a factual issue which I do not consider that I need to resolve.
The visa application did not contain any statement of the applicant’s claims for refugee status which were verified by the applicant, but was accompanied by a typed unsigned “statement”. This gave a short history of the applicant being involved in labour protests and fearing persecution by the Chinese government for perceived political opinions. I consider that it was sufficiently summarised by the Tribunal in its reasons:
The applicant’s claims have been set out earlier. In summary, he claims to have been employed by the (City Factory) as a clerk. He worked there from 1985 to March 1999. He was one of the first fired when the financial crisis left the factory facing bankruptcy in 1999. The company decided to fire some employees without providing any compensation or social welfare. He asked to be paid a reasonable amount for unemployment welfare but was refused.
He was part of a protest in February 2001, protesting the government’s Xia policy. When the protesters appeared in front of the municipal building, security staff tried to drive them away. There was a half hour skirmish. He and two others were arrested. He was detained for 18 hrs and beaten.
He and others in (City) dismissed from other companies next started the ‘Long March’ or Shang Fang, a complaint to higher authorities. Their protest last[ed] 18 months. It was fruitless. He was arrested twice during that time.
Because of their activities, he and the protesters were put on a black list. He was again and again refused employment, because he couldn't pass the political examinations of employers because of his police record. He came to Australia fearing persecution from the local governors and their factory leaders.
A delegate refused the application on 2 December 2002, and his or her decision was posted to the applicant at Mr Meng’s address. In the reasons, the delegate referred to the applicant’s statement as “extremely brief and vague”, and also pointed to the obtaining by the applicant of a passport and visa as “undermining the credibility of his claims”.
On 20 December 2002, an application for review of the decision was lodged in the Tribunal. In response to the question: “Please tell us why you consider yourself to be a refugee”, it stated: “Please see my file at DIMIA”. It gives the applicant’s home address as the Hurstville address, and Mr Meng’s address as the applicant’s mailing address. The form contained an appointment of Mr Meng as the applicant’s “Authorised Recipient to act on my behalf in relation to this case” and the information that “all correspondence about your application will be sent to this person”. It contained a declaration by Mr Meng that he had faithfully interpreted all of the contents of the form into Chinese to the applicant.
On page 6 of the form there was provision for an “Applicant’s declaration” as to the correctness of the information on the form. The form stated: “The applicant must sign here”. Above this statement, there appeared Chinese characters which the applicant today recognised as his name, but which he denied having written. His evidence was that, until he was taken into immigration detention in February 2005, he had no knowledge of an adverse decision being made by a delegate nor that an appeal was brought to the Tribunal. He did not, however, dispute that his appointment of Mr Meng as his agent encompassed authorising Mr Meng to complete and sign on his behalf any appeal documents which did not require a personal signature.
If the Tribunal application form is read as requiring a personal signature by an applicant, and if the applicant correctly disclaimed signing this form, then his application to this Court cannot succeed in achieving the Tribunal hearing which he desires. This is because the Tribunal itself would not have had jurisdiction to embark upon the review which it purported to complete, due to the application not being “a valid application” (see ss.412(1)(a) and 414(1)). I could make orders setting aside the purported exercise of jurisdiction, but there would be no outstanding review application which the Tribunal could be ordered to address, and the applicant would be long out of time for making a new application.
Counsel for the Minister did not submit that the application to the Tribunal was invalid, but submitted that the form did not require a personal signature. If it was signed by Mr Meng and not the applicant, then common law rights to appoint an agent to sign could be invoked, the application would be valid, and the notification of the appointment of Mr Meng as authorised recipient would take effect pursuant to s.441G(1) of the Migration Act. The consequence would be that the Tribunal’s letter sent to Mr Meng giving notice of a hearing was validly posted to him and was deemed to have been received by the applicant pursuant to ss.425A, 441A(4), 441C(4) and reg.4.35D.
It is impossible for me to form an opinion on the current evidence as to the real signatory on the application for review form, and I do not consider that I need to resolve the factual or legal issues concerning this. I am prepared to consider the procedures followed by the Tribunal on the assumptions that the review application was validly made to the Tribunal by or on behalf of the applicant, but that the appointment of Mr Meng might not have been validly “given” by the applicant to the Tribunal under s.441G(1), so that deemed service of the invitation could not be effected by posting the invitation to Mr Meng. Both these assumptions favour the applicant’s position.
Even so, it cannot be disputed that on 4 September 2003 the Tribunal posted by “prepaid post” a registered letter addressed to the applicant at “the last address for service provided to the Tribunal by the recipient in connection with the review” within s.441A(4)(i). It also posted a copy addressed to the applicant at the Hurstville address which had been given to the Tribunal in his application as “the last residential … address provided to the Tribunal by the recipient in connection with the review” within s.441A(4)(ii).
The Tribunal’s letter was sent in compliance with ss.425(1) and 425A, and invited the applicant to attend a hearing on 2 October 2003. The posting of the letter allowed sufficient notice so as to make applicable the “deemed” service provision in s.441C(4). On the authority of Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 (which I consider I should follow – see SZEMB v Minister for Immigration [2005] FMCA 448 at [38‑40]), it would be irrelevant that the invitation was not also sent to an authorised agent.
The letter sent to the home address was returned to the Tribunal on 13 October 2003 marked “unclaimed”. Although this was before the Tribunal handed down its decision, there was no information before the Tribunal which would have brought to its attention that the two copies sent to Mr Meng’s address (i.e. addressed respectively to the applicant and Mr Meng) did not come to the applicant’s attention. Indeed, it would have been reasonable for the Tribunal to conclude the converse, since on 5 September 2003 Mr Meng sent by facsimile to the Tribunal a “Response to Hearing Invitation” which indicated that the applicant did wish to attend the hearing.
The Tribunal records in its reasons that:
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. There was no contact made with the Tribunal by either the applicant or the adviser as to why he was not attending.
In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant, in a written submission sent to the Court on 27 July 2005 and in oral evidence, claimed that Mr Meng never told him about the invitation to the hearing, and that this was the reason why he did not attend. He claimed that he had made contact with Mr Meng many times during 2003 and that Mr Meng told him only that he would be told when the “results came out”. As I have indicated above, he also claimed not to have known at all that an application had been made to the Tribunal following an adverse decision of a delegate. I have significant doubt about the applicant’s claims, since they suggest a protracted course of misconduct by an agent, and a level of unconcern by the applicant about the progress of his visa application, which are difficult to believe.
The applicant sought to gain support for his claims by referring me to a decision by the Migration Agents Registration Authority (“the Registration Authority”) in 12 July 2004 which upheld various complaints about Mr Meng, and found that he was not a fit and proper person to give immigration assistance. However, none of the matters referred to in that decision concerned Mr Meng’s conduct in the present matter, and they do not appear to have involved allegations of misconduct of the present kind.
Counsel for the Minister cross‑examined the applicant to suggest that his claim not to have known about the Tribunal’s hearing was inconsistent with a statement in his original application to the Court that “I thought my adviser at the Tribunal hearing cautioned against the Tribunal relying on such advice (received from the Department of Foreign Affairs and Trade). So I didn’t attend for the hearing day”. The applicant disclaimed having told this to the person who wrote his application, and maintained that he was never told of a hearing.
I have difficulty discerning the truth of the situation. Giving allowance for the common experience of the Court in proceedings such as the present, I am prepared to accept that the applicant may not have given the attention to the documents signed by him or filed on his behalf which the Court would expect of someone familiar with legal and administrative processes in Australia. I am also prepared to accept that a refugee applicant in the applicant’s situation may have unwisely given absolute trust to an incompetent and even dishonest agent. I still find it very difficult to believe that the applicant made no inquiries of Mr Meng subsequent to his visa application in November 2002 and before October 2003 which would have revealed to him that an adverse decision had been made by a delegate and that an appeal had been brought to the Tribunal.
Ultimately, I consider that I do not need to make a finding on this evidence of the applicant. This is because, even if it were true, I consider that it was open to the Tribunal to exercise its power under s.426A(1) to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”, and I am not persuaded that its exercise of discretion under that provision has miscarried.
The power under s.426A(1) becomes available if an applicant does not appear, for whatever reason. The legislative scheme which raises a deemed receipt of the invitation, “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” (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16], applied in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]).
In the present circumstances, I consider that the Tribunal was entitled to proceed to make its decision without taking further action, even if the reason for the applicant’s absence was his lack of knowledge of the invitation due to negligence or other misconduct on the part of his agent.
Section 422B(1) of the Migration Act also diminishes the applicant’s rights to procedural fairness, by making the procedural provisions of Div 4 of Part 7 of the Act an “exhaustive statement of the requirements of the natural justice hearing rule”. In view of the provisions of s.426A, I consider that the effect of s.422B in the present case prevents reliance by the applicant upon an application of principles of “common law” procedural fairness which might give remedy to a person innocently deprived of a hearing due to circumstances which were not known to the decision‑maker. In this respect, I follow my reasoning in SZEUZ v Minister for Immigration [2005] FMCA 967 at [28]. I therefore do not need to address the submission of counsel for the Minister that no “common law” breach of procedural fairness would arise where the absence from the hearing was due to negligent omission by the applicant’s agent (he cited R v Secretary of State for the Home Department; Ex parte Al Mehdawi [1990] 1 AC 876).
For the above reasons, I do not consider that any jurisdictional error can arise out of the circumstances in which the applicant claims to have been deprived of a hearing by the Tribunal, even assuming their truth in all respects.
Turning to consider the Tribunal’s substantive reasons for affirming the delegate’s decision, I am unable to find anything giving rise to jurisdictional error.
The Tribunal noted that “without the ability to obtain oral or further written information from an applicant, it is somewhat difficult for the Tribunal to satisfy itself of the applicant’s claims”. It was prepared to accept that he had been laid off from his employment, and that he may have been a protester and may have been detained and beaten on one occasion. It said that “a single, short detention and release without penalty does not meet however, in the Tribunal’s view the requirements for serious harm as described in the Act”. I take this to be a reference to s.91R(1)(b) and (2), and do not consider that it shows an application of that provision which was not legally open to it.
The Tribunal then addressed the applicant’s claim to have become involved in a longer protest movement, and said that it “does not find these of the applicant’s claims to be credible, either”.When reaching this conclusion, it relied in part on information found in the applicant’s visa application without inviting the applicant to comment under s.424A(1). However, in my opinion it was not obliged to do so, since this information had been “given” to the Tribunal in the review application by reason of its request that the Tribunal should “see my file at DIMIA” (see s.424A(3)(b) and cases discussed by Jacobson J in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 at [5‑7] and [32‑37]).
The applicant’s application for review by this Court raised the procedural fairness issues concerning the applicant’s absence from the hearing which I have dealt with above. It also contained what appear to be criticisms of the Tribunal for relying on advice from the Department of Foreign Affairs and Trade. I can find no substance in these, since in my opinion the Tribunal was entitled to make use of that information when assessing the applicant’s claims. I can also not find substance in a complaint that “there is no evidence to support it that opinion”. I consider that the Tribunal’s conclusions were open to it on the evidence before it, and that they essentially were based upon a lack of satisfaction as to the applicant’s claims due to the scantiness of the evidence provided by the applicant.

At the hearing before me, the applicant did not attack the Tribunal’s reasoning, but strongly maintained that he had unfairly been denied a hearing by reason of the circumstances I have addressed above. He sought to make the Tribunal responsible for Mr Meng’s failure to inform him, by suggesting that it was or should have been aware of his agent’s unfitness, as subsequently found by the Registration Authority. He pointed out that some of the complaints which that Authority upheld had their origin during 2002. However, I am not persuaded by any evidence before me that the Tribunal made any error affecting the validity of its decision by reason of a failure to appreciate that Mr Meng was not properly representing the applicant in the present matter.
The circumstances of Mr Meng’s representation of the applicant may, in the light of facts now known to the Minister in relation to Mr Meng’s general unfitness as a migration agent, provide the applicant with arguments why the Minister should exercise her discretion under s.48B to allow the applicant to present another visa application so as to obtain a further right, if necessary, to appear before the Tribunal. However, it is not within my jurisdiction in the present matter to make any orders with respect to this, and I decline to make any recommendations to the Minister. I refrain from doing so, in particular, because as explained above I have not found it necessary to make findings as to the truth of the applicant’s claims about his dealings with Mr Meng.
For the above reasons, I find that the Tribunal’s decision was not affected by jurisdictional error. It therefore is a “privative clause decision” for which relief is barred by s.474(1), and I must dismiss the application.

I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 August 2005