SZGVE v Minister for Immigration

[2005] FMCA 1747

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGVE v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1747

MIGRATION – RRT – Chinese applicant – did not attend tribunal hearing – blamed her agents – no failure of procedural fairness found – delay in seeking judicial review – discretionary ground for refusing relief.

Migration Act 1958 (Cth), ss.425, 425A, 426A, 426A(1), 441A, 474(1), 477(1)(a), 483A, Part 8
Migration Legislation Amendment (Judicial Review) Act 2001 No. 134 (Cth)

Applicant M70 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 132
B41 of 2003 [2004] FCA 30
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Freeman v Health Insurance Commission, (2004) 141 FCR 129
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Taylor v Taylor (1979) 143 CLR 1

Applicant: SZGVE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1956 of 2005

Judgment of: Smith FM

Hearing date: 16 November 2005

Delivered at: Sydney

Delivered on: 16 November 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1956 of 2005

SZGVE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 which seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal dated 17 April 2001 and handed down on

   
   

   8 May 2001.  The Tribunal affirmed a decision of a delegate taken on 15 November 2000, refusing to grant a protection visa to the applicant.

2. Although the Tribunal's decision was made before the amendments which introduced the current privative clause provisions of Part 8 of the Migration Act, there is no evidence that the applicant had previous judicial review proceedings, and indeed it is her evidence that she did not. Her present application was filed on 25 July 2005 and is therefore subject to those provisions (see cl.8(2)(b) of Sch.1 of the Migration Legislation Amendment (Judicial Review) Act 2001 No. 134 (Cth)). Accordingly, ss.474(1) and 477(1A) would prevent the applicant being granted the relief she seeks, unless I am satisfied that the Tribunal's decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476).

3. The Minister submits in this case that, even if jurisdictional error were found, the delay of the applicant in bringing the present proceeding was unwarranted and the Court should refuse relief as a matter of discretion.  I shall address both of these issues.

4. The applicant’s application for a protection visa was lodged on

   
   

   12 October 2000 without any overt involvement of a migration agent.  It gave the applicant's residential address as a location in Goulburn Street, Sydney, and a post office box at Haymarket as her postal address. 

5. A typed statement, which carries a signature in Chinese characters which to me appears very similar to two signatures on the visa application which the applicant admits to being hers, claimed that she had fled to Australia after being detained and questioned in August 2000 by officers from the Public Security Bureau on suspicion of corrupt conduct in a purchasing department in which she had worked.

6. The applicant in evidence to me denied that the signature on this statement is hers, but in the circumstances I do not need to rule upon that.   It is enough for me to note that the visa application was found to be valid by the delegate, who addressed its claims and refused to grant a visa on 15 November 2000.  The delegate said:

   The circumstances described by the applicant have not arisen because of her race, religion, nationality, political opinion, or because of her membership of a particular social group.

7. On 11 December 2000, the Refugee Review Tribunal received an application for review of the delegate's decision lodged by a migration agent, who said:

   We have been asked to assist (the applicant) lodge this application for review of the decision to refuse her a protection visa . . . (the applicant) is currently completing her statement of reasons as to why she does not agree with the DIMIA decision, and this will be passed on to the Tribunal shortly.

8. The review application gave as the applicant's home address and address for service the same Goulburn Street address which was given to the Department, and also requested that correspondence be sent to the agent. 

9. The review application has a signature showing the applicant's name in Roman letters, which the applicant now denies having placed on the form.  I shall consider her evidence concerning this further below.  However, I note that there was nothing about the application which should have caused the Tribunal to doubt the authority of the agent to lodge it, or its validity.  The effect of the applicant's evidence to me was that she authorised the people who were helping her to seek a protection visa, and to take all steps necessary to obtain it, including by bringing any appeals.   Her present application does not challenge the validity of the review application to the Tribunal, and in the circumstances I do not consider it necessary for me to make a ruling upon this.

10. The Tribunal acknowledged the application, and by letter dated

    
    

    22 March 2001, informed the applicant:

    The Tribunal has looked at all the material relating to your application, but it is not prepared to make a favourable decision on this information alone.  You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claim.  You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.

11. The applicant was informed of an appointment on 17 April 2001, and informed that if she did not attend and a postponement was not granted, the Tribunal might make a decision on her case without further notice. The letter was sent to the applicant's Goulburn Street postal and home address, and also to her agent.  The letter sent to the Goulburn Street address was returned to the Tribunal marked “no such person, return to sender”, but the letter to the agent was not.

12. There was no appearance by the applicant or her agent at the hearing appointed.  In its statement of reasons the Tribunal said:

    8.  The applicant did not respond to the letter dated 22 March 2001, and the letter to her nominated residential and service address was returned undelivered to the Tribunal. The letter to her migration agent was not returned undelivered. However, the applicant telephoned the Registry of the Tribunal on 12 April 2001 and stated that she intended to attend the hearing listed for 17 April 2001. An interpreter was arranged and the hearing was ready to proceed but the applicant did not attend, nor did she contact the Tribunal to seek a postponement of the hearing.

    9.  No further information has been received from the applicant. In the circumstances I am satisfied that I have discharged my obligation to provide the applicant with an opportunity to give oral evidence and present argument before me. This matter has therefore been determined on the evidence before me.

13. The Court Book does not contain any record concerning the claimed telephone call from the applicant, but does contain a computer case management record which confirms that officers of the Tribunal attempted to confirm the applicant's address, and attempted to contact her through her agent and at the phone number she had provided. 

14. On the material before me, I can see nothing unreasonable about the Tribunal's decision to proceed to make a decision on the material that was before it.  From the perspective of the information known to the Tribunal, I do not consider there was any action by the Tribunal amounting to a denial of procedural fairness in its decision to determine the matter on the evidence before it.  I shall address below whether the applicant's evidence about matters unknown to the Tribunal gives rise to an element of procedural unfairness justifying the setting aside of the decision. 

15. In terms of the legislation at the time, the Tribunal was authorised by 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, if the applicant had been “invited under s 425 to appear before the Tribunal” and did not attend.

16. Section 425 at that time was in the same as now, but the terms of s.425A had some differences. At that time it provided that notice of an invitation “must be given to the applicant by one of the methods specified in section 441A”, and that “the period of notice given must be at least the prescribed period”.

17. Under s.441A as it then stood, a document sent to the last address for service or the last residential address “provided by the applicant in connection with his or her application for review” was taken to be duly given if the Tribunal had evidence indicating the date of dispatch. There is indirect evidence of this in the papers before me. The period of notice required to be given in the invitation was prescribed under then regulations 4.35D and 50.03. These required a 21-day period after the date of the document before the document was taken to have been received. I am satisfied that the present notice complied with these provisions, and that the Tribunal had authority under s.426A to proceed in the manner which it did.

18. The Tribunal affirmed the delegate's decision on two bases, that:

    The claims which the applicant has made do not raise a Convention ground.

    and also:

    In the absence of an opportunity to question the applicant on the details of her claim, I am not satisfied that the applicant has a well founded fear of harm amounting to persecution for a Convention reason if she were to return to China.

19. I can see no jurisdictional error in the Tribunal's reasoning in that manner.

20. The applicant's application to this Court was filed on 25 July 2005, and the hearing of the matter was expedited due to the applicant's then being held in immigration detention.  I set the matter down for hearing today at a first Court date held on 24 August 2005.

21. The applicant's original application asserted that she has a well-founded fear of persecution for reason of “my Falun Gong practitioner in China”.  This is a claim which was never part of the visa application made by the applicant or on her behalf.  It cannot support the relief she seeks from this Court.

22. Paragraphs (b) , (c), (d) and (e) state:

    On 12 October 2000 I engaged a Migration agent that I knew as Amy to act on my behalf in preparing an application for a protection visa to lodge with the respondent.

    On 11 December 2000 I again engaged Mr Amy to act on my behalf in preparing an application for review of the respondent’s decision by the Refugee Review Tribunal of Australia.

    After 12 April 2001 I did not hear from Mr Amy again and in particular I was never informed by her that the hearing before the RRT was set down for 17 April 2001.

    Further much of the information contained in the statement to the Respondent prepared by Mr Amy was not accurate and did not completely represent my instructions to Mr Amy on the content of the statement of 25 July 2005

23. Shortly before today's hearing, the applicant forwarded to the Court an affidavit and submission.  In her affidavit she refers to the person who helped her as being “Mr CHEN Hao-Yuan from Burwood”.  She said:

    8.  Mr Chen went on my behalf to consult a migration agent.  On his return he told me how much it will costs and asked for my passport.  I asked him how long the “extension” is and was told the length is unknown until the visa is granted. 

    9. In the next few days Mr Chen brought back something for me to sign.  I signed.  It (they) was (were) in English, I did not understand and was not told of their contents.

    10. I did not understand well enough on refugee or visa matters to expect that the agent would put in a “claim” for me.

    11. While waiting in the months that followed, I rang Mr Chen a few times to enquire the progress.  He answered to the effect of: these things take time, why the hurry.

    12. Also during the time of waiting, I was taken to the agent’s office once by Mr Chen to sign a document.  I saw the secretary but not the agent.  I signed the document(s).  It (they) was (were) in English, I did not understand and was not told of its (their) contents.  This was the only contact I ever had with the agent or his office.  I totally replied on Mr Chen because I did not feel myself capable of understanding matters related to visa in order to deal with an agent.

    13. Many months have gone past until I felt uncomfortable with the agent and asked Mr Chen to retrieve my passport.

    14. After I had received my passport, I rang Mr Chen a few times to check on my application.  His answer was to the effect of: I don’t know.

    15. Since late 2001 or early 2002 I can no longer contact Mr Chen.  I made enquiry through friends and found that he had gone to New Zealand.  My understanding then was that I have paid money for a visa that I did not know whether I have.  I did know what to do further because apart from Mr Chen no one around could help with this type of matters and I still felt not capable of dealing directly with the Department of Immigration or migration agent myself.

    16. I was taken to Villawood on 28^th April 2005.

24. She was cross-examined and gave evidence which was not consistent with either of the above written versions of events.  However, as I understood the effect of her evidence, she said she had trusted Mr Chen  to “process a refugee application for me”, and left it to him to take any steps necessary to get that visa including, on her account, making up false statements in support.  She said she had paid Mr Chen $630 for his assistance.   She claimed not to have known that a migrant agent was employed in her case, and disclaimed knowing his name.  She said that the claims made in the statement attached to the visa application were untrue entirely, and that she had never told anyone such a story.  She said she in fact did not tell Mr Chen anything as to why she was afraid to return to China.  Contrary to what she said in her application to the Court, she claimed not to have been aware that an application for review was made on her behalf to the Refugee Review Tribunal.  She denied that she had telephoned the Tribunal or had any knowledge of a hearing being appointed. 

25. I have great difficulty believing the applicant’s evidence.  However, on her own account, she has been exceptionally careless in her giving of instructions and in her supervision of the people to whom she entrusted her immigration status in Australia.  Even taking into account the cultural differences which she must have faced in Australia, I cannot form a judgment of her behaviour which she presents to explain her absence from the Tribunal's hearing as being reasonable on her part. 

    
    

    I do not consider that it raises a concern that the Tribunal's decision to proceed in her absence from the hearing should be regarded as unfairly arrived at.

26. The applicant was understandably not able to make legal submissions to me concerning the relevant principles of procedural fairness, where an adverse decision is made after a failure to attend a hearing, and where the decision-maker's decision to proceed without further action was not unfair when viewed from the circumstances known to the decision-maker.  There are authorities suggesting that in some such circumstances a breach of procedural fairness may still be found (e.g. Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28), and there are analogous situations in relation to court procedures (e.g. Taylor v Taylor (1979) 143 CLR 1). However, in my opinion, these cases proceed on the basis that the absence of the applicant was without fault on his or her part, and that the applicant had taken reasonable steps to obtain notice and to attend hearings. As I have indicated, I am not prepared to make any of these findings in the present case.

27. Legal authorities in this area were canvassed in a written submission which the applicant presented to me, and which counsel for the Minister identified as having been prepared by counsel for a different case.  I have considered the argument presented in those submissions. 

28. Counsel for the Minister in response cited authorities which doubt whether the fact that someone missed an opportunity to present their case due to fault on the part of their advisers could establish a departure from procedural fairness (see Freeman v Health Insurance Commission (2004) 141 FCR 129 at [52], and B41 of 2003 [2004] FCA 30 at [23] to [25]). In my opinion these authorities support the conclusion which I arrived at above: that the present Tribunal's proceedings were not vitiated by reason of a failure to accord procedural fairness to the applicant.

29. For the above reasons I have not been able to find jurisdictional error affecting the Tribunal's decision. It is therefore a privative clause decision for which relief was barred under sections 474(1) and 477(1A).

30. Although this conclusion leaves it unnecessary for me to decide whether I would also have refused relief on discretionary grounds, this issue was canvassed in cross-examination of the applicant and in submissions by the Minister.   I reached a clear opinion on that issue, which I think it appropriate to express. 

31. The applicant in cross-examination was evasive as to when she became aware that she had not attained the protection visa which she employed Mr Chen to obtain.   However, at the end of her cross-examination she admitted that she had come to know that she was an illegal resident as a result of failing to get a visa.  She said this happened at the end of 2003.  I think it likely that it was significantly earlier than that.  However, on her own account, she took no action subsequently to obtain advice about her status from anyone among a host of advisers who are available to people in her position.  She said that she first obtained advice as to judicial review remedies when she was taken into immigration detention on 28 April 2005. 

32. In my opinion, the delay which occurred before she sought relief from the Court was unwarranted, and her conduct should cause the Court to refuse to grant relief in relation to the decision-making on her visa application (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80]). Justice McHugh has emphasised a public interest consideration which in my mind is dominant in the present case. In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, he said:

    Where an applicant seeks the issue of a constitutional or prerogative writ, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such Acts or decisions.  In that respect, the present case, although important to the applicant, is not as important as many other cases. 

33. This was applied by the Full Court in Applicant M70 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 132.

34. For that discretionary reason, I would also dismiss the present application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  1 December 2005