SZGMW v Minister for Immigration

[2006] FMCA 1604

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGMW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1604

MIGRATION – RRT decision – Chinese applicant claiming to be Falun Gong practitioner – did not attend hearing – blamed agent for failing to notify her – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.422B, 425, 425A, 426A(1), 441A(4), 441C(4), 441G(1), 474, 483A

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZGMW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1517 of 2005

Judgment of: Smith FM

Hearing date: 18 October 2006

Delivered at: Sydney

Delivered on: 18 October 2006

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the First Respondent: Ms L Clegg

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $5,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1517 of 2005

SZGMW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 10 June 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which is dated 10 November 2003 and was handed down in Melbourne on 28 November 2003.  The Tribunal affirmed the decision of a delegate made on 20 December 2002, refusing to grant a protection visa to the applicant.  

2. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. Under s.483A the Court has power to set aside the Tribunal’s decision and send the matter back to the Tribunal, but this is subject to limitations under s.474 which have the effect that I must first be satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether she qualifies for a protection visa.

4. The applicant arrived in Australia on a visitor’s visa in October 2002.  On 4 November 2002, a Melbourne migration agent submitted an application for a protection visa on her behalf.  At least one of the signatures contained in the application is acknowledged by the applicant, although she denies some of the other signatures.  It is unnecessary for me to make findings as to those signatures, since the applicant does not contend that she did not authorise the making of the protection visa application. 

5. The application gave a residential address for the applicant in Footscray, and gave a postal address which was the same address as the agent in Moonee Ponds. 

6. In the application, the applicant claimed to fear persecution because of her religious beliefs if she returned to the People’s Republic of China.  She claimed that her religion was Falun Gong.  A brief typed statement claimed that she had joined other people in China practising Falun Gong together.  As to her reasons for fearing persecution, the statement said merely:  

   But Falun Gong is defined as vicious religion and illegal activity against Communist party by Chinese Government.  I can never understand why it goes like this.  In China, once an activity is defined as anti‑communist, it means it must be extinct in the country.  The Government never allows any more Falun Gong believers existing in China.  A lot of Falun Gong followers were arrested and put into prison.  No any freedom left for us to continue practicing Falun Gong.  This is the reason why I have to leave that country. 

   No further details or supporting material was sent to the Department. 

7. The Department initially had concerns as to the validity of the application, because a field officer could not locate the address at Footscray which was claimed as the applicant’s residential address.  Eventually the agent presented a “Notification of Incorrect Answer(s)”, which gave what was said to be the correct residential address for the applicant, being a home unit in Auburn, New South Wales.  The Department then accepted the application as a valid application.  A delegate addressed its merits, and refused the application on 20 December 2002. 

8. On 14 January 2003, the same migration agent lodged an application for review of the delegate’s decision at the Tribunal in Melbourne.  The form of application gave as the applicant’s home address the previously claimed address in Footscray.  It gave as the applicant’s mailing address the agent’s own address at Moonee Ponds.  The application contained a request that all correspondence about the application should be sent to an authorised recipient, being the agent.  The application also authorised the agent “to act on [my] behalf” in relation to this case.  Nothing material was said in the section of the form inviting reasons for making the application. 

9. The applicant now denies that the signature appearing on the review application is hers, but does not contend that she did not give authority to the agent to make the application on her behalf.  Some of her evidence to the Court explicitly recognised that she so authorised the agent.  Other evidence in her affidavit and from the witness box was equivocal as to this, and was generally unreliable.  In circumstances where she does not invite the Court to make a finding that the application to the Tribunal was not a valid invocation of its jurisdiction, I would not make a finding that it was invalid for want of authority. 

10. Indeed, on my assessment of all the evidence, it is more probable than not that the applicant since her arrival in Australia, if not previously, has authorised the people who have been helping her over the years to do all that they thought appropriate to try to procure permanent residence in Australia, including by way of protection visa applications and appeals, including to this Court.  I express this finding in such general language, because the applicant claims not to remember the name of any of her helpers, even of the person who has recently helped her bring this present application. 

11. One fact is clear: that the Tribunal received no communication which should have caused it to doubt the proper authorisation of the Melbourne agent to bring the review application and to act as authorised recipient for correspondence.  The applicant does not contend that any such communication occurred. 

12. By letter dated 11 September 2003, the Tribunal wrote to the applicant at her postal address, being the agent’s postal address, and also sent a copy to the agent and a copy to the applicant at the Footscray address.  The letter informed the applicant: “the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”.  It invited her to attend a hearing in Melbourne on 3 November 2003.  The letter informed the applicant that if she did not attend, the Tribunal could make a decision on her case without further notice, and invited the submission of any further supporting material. 

13. It is apparent that significantly more time than the prescribed period of notice was given of the hearing date. In my opinion, the posting of the letter also complied with the other requirements of ss.425 and 425A, and of the postal provisions in relation to service both on an applicant’s postal address and on an authorised recipient under ss.441A(4) and 441G(1). Pursuant to s.441C(4) the applicant and her agent were therefore deemed to have duly received that invitation, and the Tribunal acquired the power to proceed under s.426A(1) in the event that the applicant failed to attend the hearing. She did fail to attend the hearing.

14. A note on the Tribunal’s file dated 30 October 2003 says:  

    Contacted [the applicant’s] AR to find out if [the applicant] is attending his [sic] hearing.  Mr Belbruno (the applicant’s AR) informed me that he has not been able to contact his client and does not think they will attend their hearing. 

15. As I shall indicate, the applicant’s counsel asks me to make a finding that Mr Belbruno lied to the Tribunal in that conversation. I shall return to that issue further below. However, it is not contended that on that communication, and on all the information before the Tribunal, it did not have the authority to proceed under s.426A(1) when the applicant did not attend the hearing. I find that it had power to proceed to make its decision affirming the delegate’s decision without any taking further action to invite the applicant to a rescheduled hearing.

16. The Tribunal’s reasons for affirming the delegate’s decision are manifest, and were summarised in its last paragraph:  

    Lacking the opportunity to examine the applicant’s claims in more detail, the Tribunal is not satisfied, on the evidence before it, that the applicant was a Falun Gong practitioner in the past and will be in the future.  It is also not satisfied that the applicant has criticised the government in the past which the government did not like her to do.  It is not satisfied that the applicant has experienced and will experience the problems as claimed.  Further, the Tribunal is not satisfied on the evidence before it that the applicant has a real chance of persecution in the foreseeable future if she returned to China because of her alleged practice of Falun Gong or for any other Convention reason.  Her fear of persecution is not well‑founded. 

17. There is evidence that the decision was posted to the applicant’s Melbourne agent by the Tribunal at the time of its handing down on 28 November 2003, and there is no doubt that the applicant soon became aware of the decision.  This is because on 5 December 2003 the Tribunal received a facsimile from a new migration agent in Sydney requesting a copy of the decision.  It is reasonable to infer, and I find, that the applicant from that time was actually aware that her application for review by the Tribunal had failed.  There is evidence in a file note at CB p.65 that on 11 December 2003 the Sydney agent then made an application unsuccessfully to the Minister for ministerial intervention.  The applicant does not deny this, nor that she employed the Sydney agent as well as the Melbourne agent.  

18. An issue therefore arises as to why it took the applicant until June 2005 to bring an application for judicial review.  The Minister submitted that the delay was unwarranted, and would justify refusal of relief even if the Tribunal’s decision was affected by jurisdictional error.  There is merit in the Minister’s submission, but I have found it unnecessary to attempt to investigate the contradictory and obscure evidence given by the applicant seeking to explain the delay.  This is because I am satisfied that the Tribunal made a decision which is not affected by jurisdictional error. 

19. The amended application which was relied upon today by Mr Zipser, counsel for the applicant who was instructed on a direct client basis, has one ground: 

    1.The applicant did not attend the hearing before the Tribunal on 3 November 2003 because she was misled by her migration agent. In the circumstances of the case, there was procedural unfairness, giving rise to jurisdictional error: see for example O’Sullivan v Repatriation Commission (2003) 74 ALD 407 at [42]‑[59].

20. Mr Zipser’s written submissions were filed shortly before today’s hearing, and said:  

    20.The following issues arise in this case: 

    a)The applicant contends that she was deprived of the opportunity of a hearing in his matter before the Tribunal as a result of wrongful conduct by her migration agent.  In the circumstances, there was jurisdictional error in the Tribunal’s decision.  (“Wrongful acting agent issue”) 

    b)Section 422B of the Migration Act applies in the present case. A question is what effect s 422B has on whether there was jurisdictional error. (“Section 422B issue”)

    c)The applicant delayed about 18 months in lodging her application for judicial review with the Federal Magistrates Court.  A question is whether relief should be refused on the basis of the delay.  (“Delay issue”) 

21. In support of these contentions, Mr Zipser invited the Court to make a finding that the applicant’s Melbourne agent provided the Tribunal with information which was “not correct and he made no attempt to inform the applicant about the hearing in the Tribunal”.  He pointed to the fact that the agent inserted the Footscray address in the review application.  He also relied upon evidence from the applicant claiming not to recognise the name of the agent.  He sought to lead evidence that the applicant was, in fact, unaware of the hearing and was not at fault on her part by removing herself to a location in Sydney where her agent could not communicate with her. 

22. On the evidence before me, I would not make a finding that the applicant’s agent was responsible for the applicant failing to receive actual notice of the hearing.  I find that the applicant’s evidence seeking to blame the agent cannot be believed.  It is unnecessary for me to identify its deficiencies.  The transcript of her cross‑examination will show numerous gross inconsistencies, and the demeanour with which she gave evidence was entirely unimpressive.  I am confident that she attempted to tailor her evidence without regard for the truth: saying anything which she hoped would win her the case.  On the evidence before me it is quite possible that the applicant’s agent was, in fact, not informed by the applicant of her contact details at the time of the hearing invitation, and that he honestly informed the Tribunal officer on 30 October 2003 that he was unable to contact the applicant. 

23. The difficulty of relying upon the applicant’s written and oral evidence would make it almost impossible for me to arrive at findings as to what probably happened in the applicant’s communications with the people who she has engaged to help her obtain permanent residence in Australia. Fortunately, the Migration Act has been framed to render unnecessary an investigation of those communications, either by the Tribunal or by a court on judicial review.

24. The operation of s.426A(1), particularly when read with s.422B of the Migration Act, renders irrelevant whether an applicant received actual notice of a hearing invitation, and the reasons for not receiving notice. This has repeatedly been emphasised in several recent Full Court cases, including VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407, Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64, Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 and SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110.

25. These cases were cited recently in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 without any disapproval. No support can be found in any of the judgments in that case for finding that a breach of procedural fairness occurs where a Tribunal unwittingly decides a matter in the absence of a person from a hearing which resulted from fraudulent statements to that person by that person’s agent. A difference of opinion emerged in the judgments whether such a fraud might have the effect that the applicant had been denied an opportunity required to be given under s.425 of the Migration Act. However, the majority justices, Allsop and Graham JJ, applied the cases which I have referred to above, and held that, even in the presence of such fraud, a Tribunal’s decision applying s.426A(1) was authorised by the legislation and would not be vitiated by jurisdictional error.

26. Mr Zipser acknowledged the weight of the above authorities, and that I am bound to follow them.  However, he submitted: “in the present case the Tribunal’s decision was objectively unfair.  On this basis, there was jurisdictional error”.  He submitted that the authorities, including those I have referred to above, “are wrong”, and “it is open to the applicant to appeal from any adverse decision of this Court and seek to persuade an appellate court to change the law”.  He presented no arguments which would suggest to me that his submissions will have a prospect of success in superior courts. 

27. For the above reasons, I reject the contentions of the applicant’s counsel in relation to both their factual foundations and their legal foundation.  On the material before me I can identify no jurisdictional error affecting this Tribunal’s decision, and I dismiss the application. 

I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  30 October 2006