SZICU v Minister for Immigration

[2007] FMCA 1086

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1086

MIGRATION – Review of Refugee Review Tribunal decision – requirements of notice of invitation to hearing – “Response to Hearing Invitation” form – migration agent authorised recipient for the purposes of receiving correspondence – non-appearance before the Tribunal on the part of the applicant attributed by the applicant to the alleged dishonesty of migration agent – no evidence that migration agent acted dishonestly or fraudulently – no jurisdictional error.

Migration Act 1958, ss.424A, 425, 425A, 426, 426A

Uddin v Minister for Immigration and Multicultural and Ethnic Affairs (2005) FMCA 841
Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 90
SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 724
SZEEU v Minister for Immigration and Indigenous Affairs (2006) 150 FCR 214
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494
SZIDZ v Minister for Immigration and Citizenship [2007] FCA 40
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365
Jones v Dunkel (1959) 101 CLR 298

Applicant: SZICU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 140 of 2006

Judgment of: Nicholls FM

Hearing date: 19 April 2007

Date of Last Submission: 19 April 2007

Delivered at: Sydney

Delivered on: 11 July 2007

REPRESENTATION

Counsel for the Applicant: Mr. D. Godwin (by direct access)

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

2. The application to the Court made on 16 January 2006 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 140 of 2006

SZICU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 16 January 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 28 November 2005 and handed down on 20 December 2005, which affirmed the decision of a delegate of the first respondent made on 2 August 2005 to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of India who arrived in Australia on 27 September 2004 and sought protection in Australia on the basis of his claimed political activities in India including his active membership of the Tamil Liberation Force (“TLF”), which was banned in India.

2. The relevant documents before the Court reveal that on 12 August 2005 the applicant sought review of the delegate’s decision by the Tribunal.  (The application is reproduced at Court Book (“CB”), CB 64 to CB 67.)  The applicant was represented before the Tribunal by a migration agent (CB 65).  The applicant nominated his migration agent as the authorised recipient for the purposes of receiving correspondence (see CB 70 and CB 65).  

3. By letter dated 4 November 2005, the Tribunal advised the applicant (by letter sent in accordance with the applicant’s direction, to his migration agent) that on the material before it, the Tribunal was unable to make a decision in the applicant’s favour and invited the applicant to attend a hearing before the Tribunal.  The Tribunal provided a time, date and place for the scheduled hearing.  The applicant did not appear at the relevant time and the Tribunal proceeded to make a decision on what was before it (see the Tribunal’s decision record at CB 78 to CB 85).

4. At the hearing before the Court, Mr D. Godwin of Counsel appeared for the applicant, and Mr T. Riley appeared for the Minister.  

   
   

   The applicant was granted leave to file a further amended application in Court, which with particulars, put forward three grounds:

   “(1) That the decision of the second respondent was affected by jurisdictional error:

   (a) The second respondent failed to comply with s.426A of the Migration Act …

   (b) The second respondent failed to comply with s.424A of the Migration Act …

   (c) The second respondent did not comply with s.425 of the Act.”

5. In addition to the material in the Court Book, the Court relevantly has before it:

   (1)The applicant’s affidavit made on 4 April 2007.  The applicant was cross-examined by Mr Riley.

   (2)The affidavit of Jonathon Willoughby-Thomas, a District Registrar of the Tribunal, made on 17 April 2007, with annexures.

Ground 1

1. The applicant’s first ground asserts a deficiency in the Tribunal’s letter of invitation to a hearing (CB 71 to CB 72. See also Annexure “C” to the affidavit of Mr Willoughby-Thomas.). The applicant’s position is that the Tribunal proceeded to determine the review pursuant to s.426A of the Migration Act 1958 (“the Act”), and that that section requires, as a prerequisite, an invitation to a hearing to be given to the applicant pursuant to s.425 of the Act. Section 425A of the Act specifies what is to appear in the notice of invitation to the hearing, and, in particular, s.425A(4) of the Act provides that the notice of an invitation to a hearing “must contain a statement of the effect of s.426A.” The applicant’s contention is that s.426(1) of the Act provides that, in the notice under s.425A of the Act, the Tribunal must notify the applicant, amongst other things, “of the effect of subsection (2) of this section.” Sub-section (2) is in the following terms:

   “(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.”

2. The applicant’s complaint is that what the Tribunal did in this case was to send a notice to the applicant which effectively restricted his ability to notify the Tribunal of his desire for the Tribunal to obtain evidence from another person.  The Tribunal restricted the applicant by directing the applicant to complete and return an attached form (the “Response to Hearing Invitation” form) with the direction that he complete the “witness’s part of the form” (CB 72.1).

3. Mr Godwin’s submission on behalf of the applicant was that the completion of the form was not the only way that the applicant could have complied with s.426(2) of the Act. His argument was that the filling out of the form is only one way in which the written notice could have been given, and that the Tribunal did not explain to the applicant that this was not the only method by which he could make such a request. Its failure to give such an explanation meant that it had not complied with giving “the full effect of s.426(2).” This deficiency meant that an invitation to hearing had not properly been given, and further the Tribunal was therefore unable to proceed pursuant to s.426A of the Act to make a decision on the review.

4. Mr Godwin drew a comparison with Uddin v Minister for Immigration and Multicultural and Ethnic Affairs (2005) FMCA 841 (“Uddin”), and the consideration given to that case by a Full Court of the Federal Court in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 90 (“Morsed”).

5. In Uddin, a matter involving a notice required to be given by an education provider to an overseas student pursuant to s.20 of the Education Services for Overseas Students Act (the “Overseas Students Act”), the Court held that the relevant notice imposed more restrictive requirements on the applicant than that which was permitted by, or set out in, s.20 of the Overseas Students Act. The comparison which Mr Godwin sought to draw was that by similarly restricting the applicant in this case to the one way in which he could respond to notify the Tribunal of his desire to call a witness, that is by filling out the Tribunal’s attached form, the Tribunal thereby precluded the applicant from exercising any other option which he argued could be exercised pursuant to the Act.

6. That is, that the Act provided that the applicant may give the Tribunal written notice that it wanted it to obtain oral evidence from another person. There was no restriction that that notice must be given in a particular form. So applying the logic of what was found in Uddin, the applicant invites this Court to find that the Tribunal’s notice was deficient because of this restriction.

7. In reply, Mr Riley submitted that the Tribunal’s obligation is that it must notify the applicant “of the effect of what is set out in s.426(2).” That is, within 7 days after being notified of the invitation to the hearing the applicant could give the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from another person.

8. He emphasised that the critical issue is not that the notice be “verbatim” in the form set out in the legislation, but that the applicant be told the effect of s.426(2) of the Act. Further, that the Tribunal in directing the applicant’s notice to the “Response to Hearing Invitation” form, was simply directing the applicant to a vehicle set out for the fulfilment of the opportunity to call witnesses.

9. The Court was referred to SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 724 (“SZCQR”) where Moore J, in dealing with a somewhat similar issue, where an applicant in that case relied on a difference in wording of the invitation letter to a hearing from the language of s.426A of the Act, said (at [27]):

   “The differences between the notice and s.426A, relied on before the Federal Magistrate and in this appeal (see [15] and [18]), are said to demonstrate that the requirement in s.425A(4) was not met. In my opinion, these identified differences (and I would be reluctant to characterise them as differences in any event) do not establish that the notice fails to contain a statement of the effect of s.426A.”  (Emphasis original)

   Mr Riley drew from this that Moore J, with respect, gave weight to the fact that “of the effect of,” allows some variation of the literal wording of what is required in the relevant section.

10. The issue for this Court then is, did the letter of 4 November 2005, being the letter of invitation to a hearing, amongst other things, notify the applicant of the effect of s.426(2) of the Act, namely that within seven days after being notified of the invitation to appear before the Tribunal to give evidence, the applicant may give the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from another person, or persons, named in the notice.

11. I take the view, as submitted by Mr Riley, that the words “the effect of” do not require a verbatim representation of the words used in s.426(2) of the Act. What is required is that an applicant is notified of the effect of that subsection. I agree with Mr Riley’s submission that the Tribunal’s letter did comply with this obligation. The relevant elements are:

    (1)That the applicant be advised of the option of asking the Tribunal to call a witness or witnesses.

    (2)That the exercise of this option must be done in writing.

    (3)That this must be done within seven days after being notified of the hearing.

12. In my view, the Tribunal complied with these requirements:

    1)In its letter reproduced at CB 71.5 the Tribunal states:

    “You can also ask the Tribunal to obtain oral evidence from another person or persons.”

    2)At CB 72.1, by way of the first dot point, the Tribunal directs the applicant to do this in writing by referring the applicant to that part of the “Response to Hearing Invitation” form headed “witnesses.” This meets the obligation to inform the applicant, and would meet the requirement that the applicant notify the Tribunal of any witnesses in writing.

    3)The evidence before the Court is that this letter of invitation (containing the “Response to Hearing Invitation” form) was sent by facsimile transmission to the applicant’s authorised recipient for correspondence. By virtue of s.441A(5)(a) and s.441C(5) of the Act, the recipient is taken to have received the letter on the same day. The Tribunal directed that the completed “Response to Hearing Invitation” form be returned by a date which was seven days from the date of its letter. This means that the applicant would have seven days within which to reply, including notifying the Tribunal of any witnesses from whom he wished it to hear oral evidence.

13. I should also note that the applicant had appointed his migration agent as his “authorised recipient” for the purpose of receiving correspondence from the Tribunal (CB 65). By operation of s.441G(1) of the Act, the Tribunal was obliged to send such correspondence to the authorised recipient, and by virtue of s.441G(2) of the Act the applicant was taken to have received the correspondence on receipt by the agent

14. In all, therefore, I accept Mr Riley’s submission that the Tribunal’s letter of invitation does notify the applicant of the effect of s.426(2) of the Act, in that the applicant could, if he desired, within seven days after being notified of the invitation to appear before the Tribunal, give the Tribunal written notice that he wanted it to obtain oral evidence from a person, or persons, named in the notice.

15. Mr Godwin’s submission that the Tribunal’s direction that the applicant provide notice of any witnesses by way of its enclosed form restricts the applicant’s options, does not affect the critical issue as to whether the Tribunal complied with its obligation pursuant to s.426(1)(b) of the Act. The situation before the Court now is distinguishable from Uddin in that the “restrictive directions” in that case were misleading, but critically, did not reflect the relevant statutory intention.

16. The relevant s.20 Overseas Student Act requirement was that a student who was the subject of a notice pursuant to s.20, in that situation could report to an “officer” of the Minister’s Department to explain the alleged breach of the conditions attached to his or her student visa, whereas the notice to the applicant in Uddin required him to report to a “compliance officer.” Further, the notice (in Uddin) required the applicant to report to a particular Departmental office, when the legislation permitted the applicant to report to any Departmental office anywhere in Australia.  Simply, what the Court found as defective in the relevant notice in that case was that the deficiencies did not reflect the statutory obligation or intention.

17. That is not the case in the matter before the Court now. The notice to the applicant regarding “the effect of” s.426(2) of the Act did reflect what the section required. “The effect of” s.426(2) of the Act is that an applicant within seven days of being notified may request the Tribunal in writing to hear oral evidence from persons named in the notice. That is what the letter provided.

18. While it was possible to provide written notice of the desire to have a witness called, by letter other than by completing the Tribunal’s form, that the Tribunal provided a mechanism to the applicant by which to give notice (by completing the enclosed form) does not mean that the Tribunal did not comply fully with the relevant statutory obligation.  This ground does not succeed.

Ground 2

1. The applicant’s second ground is that the Tribunal did not comply with s.424A of the Act. Mr Godwin referred to three parts of the Tribunal’s decision record:

   1)At CB 81.7: the Tribunal made reference to the applicant’s passport.

   2)At CB 83.8: the Tribunal accepted that the applicant was a citizen of India, as he claimed, and “as supported by copies of some pages of his Indian passport.”

   3)At CB 84.7: the Tribunal made further reference to the Minister’s delegate having noted that the applicant claimed to have obtained a passport without difficulty in India.

2. Mr Godwin submitted that the references by the Tribunal in its decision record to the applicant’s passport could only have come from the applicant’s application for a protection visa, and in particular, did not come within the exception set out in s.424A(3) of the Act from the requirements of s.424A(1) of the Act. Therefore, in accordance with SZEEU v Minister for Immigration and Indigenous Affairs (2006) 150 FCR 214 (“SZEEU”), if this information, appearing as it did in the Tribunal’s decision record, was even a part of the Tribunal’s reason for rejecting the application, then it amounted to a failure of compliance with s.424A(1) of the Act, and this amounted to jurisdictional error (SZEEU at 182 per Weinberg J, at 215-216 per Allsop J). The applicant asserts that this is the case now.

3. Section 65 of the Act provides that a protection visa must only be granted if the decision maker is satisfied, amongst other things, that the applicant satisfies at least the requirements set out in s.36(2) of the Act. That is, in effect, that the applicant meets the definition of refugee contained in Article 1A(2) of the Refugees Convention. In the case before me, the Tribunal wrote to the applicant by way of its letter of 4 November 2005 and advised the applicant that on what was before it, it could not be satisfied that the applicant satisfied the requisite criteria for a protection visa. The applicant was invited to a hearing. He did not attend.

4. Mr Godwin’s submission that the Tribunal failed to comply with its obligations pursuant to s.424A(1) of the Act because of references in its decision record to information not provided to the Tribunal for the purposes of the review does not, on what is before me, succeed.

5. The obligation contained in s.424A(1) of the Act is that the Tribunal must give the applicant information that it considers would be the reason or a part of the reason for affirming the decision that is under review. I accept Mr Riley’s submission that in the case before me the reason for the Tribunal’s decision was that it found the applicant’s claims to be “vague in many respects and lacking useful detail as well as unclear” (CB 84.5).

6. It was the applicant’s failure to make submissions to the Tribunal, as had been promised in the application for review (CB 84.3), the lack of documentary evidence or reference to country material to support his assertions, and the applicant’s failure to attend the Tribunal hearing, which deprived the Tribunal of the opportunity to test any of his claims “or even to clarify them” (CB 84.4), ultimately leaving the Tribunal no further advanced in its evaluation process than it was as at the date of its letter of 4 November 2005.  Plainly, the reasons for the Tribunal’s decision were simply that on what the applicant had put before it, and despite having given the applicant an opportunity to enhance, or clarify these claims, which the applicant did not take up, the Tribunal was unable to be satisfied, as it is statutorily required to be, that a protection visa must be granted.

7. It is, as Mr Riley submits, well-established that such reasoning does not engage s.424A of the Act. (See SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 (“SZEFM”) at [23], SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166 (“SZEGX”) at [10], SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 (“SZCIA”) at [9]-[14], SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494 (“SZBZO”) at [48]-[49].) I note in particular, SZEFM, where at [23] Bennett J said:

   “As was said by Hely J in SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [16], by Bennett J in SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 at [17]-[19] and [28]-[33] and by Allsop J is SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29], the Tribunal was identifying the deficiencies or inadequacies in the appellant’s case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant by reason of s.424A(1) (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]).”

1. I note also that in SZBYR v Minister of Immigration and Citizenship [2007] HCA 26, the High Court at [18] stated:

   “[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information.’ Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’:

   ‘does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.’

   If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.” (Citations omitted)

2. The reference at CB 81.7 to the applicant’s passport is a restatement of the applicant’s circumstances. Merely restating the applicant’s circumstances does not of itself engage s.424A(1) of the Act unless such restatement can be seen to be a part of the reason for the decision in affirming the delegate’s earlier decision. That the applicant obtained a passport without difficulty cannot, on any plain reading of the Tribunal’s decision record, be said to be a part of its reasons for affirming the decision under review. The reference at CB 83.8 that the applicant was a citizen of India similarly is not a part of the reason for the refusal of the application.

3. The reference to the applicant’s departure from India, and reference to his passport at CB 84.7, is very plainly, in context, a reference to a matter that the Tribunal would have wished to have explored with the applicant had he come to the hearing.  Plainly (“it is also unclear”), the Tribunal was giving an example of why it found the applicant’s claims to be vague in many respects and lacking useful details, as well as being unclear.

4. Mr Godwin invited the Court, with reference to SZIDZ v Minister for Immigration and Citizenship [2007] FCA 40 (“SZIDZ”) and, in particular, what Allsop J set out at [12]-[13], to say that either the circumstances in the case before me can be distinguished from what was before His Honour, or that “in some way it is wrong.” He acknowledged that what His Honour said SZIDZ was binding authority against him.  In SZIDZ, Allsop J stated (at [12] and [13]):

   “[12] One issue which conceivably might arise which was not dealt with by the Federal Magistrate could be whether s.424A of the Migration Act was complied with.  In this respect I refer to my reasons in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, in particular at [29]. Looking at the reasons of the Tribunal at p.6 which I have set out above, in my view it is not appropriate to conclude that information provided to the delegate and not the Tribunal was the reason, or part of the reason, for the affirmative decision. The reason for the decision was simply, and no more than, the evaluative conclusion founded on the perceived inadequacy of the information in the sense of absence of detail and extrinsic explanation which had been invited. In my view, it would be an inadequate and misleading statement to say that the information provided by the appellant to the Department was the reason or part of the reason for the decision. The reason for the affirmation of the delegate’s decision was the lack of requested further assistance and explanation. In these circumstances I do not think that the Tribunal has failed to comply with s.424A.

   [13]  In the circumstances, where the appellant did not attend the Tribunal, I am unable to conclude that the learned Federal Magistrate erred in any way in coming to the conclusion he did in dismissing the application.”

5. With respect, what His Honour set out in that case is, in my view, clearly consistent with the other authorities referred to above.  It is, in any event, binding on this Court, given that that was also a matter on appeal from this Court.  Nor can I distinguish the circumstances in the case before me from the circumstances before His Honour in SZIDZ.  Nor do I accept Mr Godwin’s submission that the Tribunal in the case before me went beyond, in its reasoning, than simply being unable to be satisfied on the material before it that a protection visa should be granted.  Any plain reading of its decision record reveals, that in the case before the Court now the Tribunal was unable to reach the requisite level of satisfaction that a protection visa must be granted.  The Tribunal gave examples of areas of deficiencies in the applicant’s claims but these were clearly examples as to why it could not reach the requisite level of satisfaction.  In all, this ground does not succeed.

Ground 3

1. The applicant’s third ground, as ultimately pressed by Mr Godwin, is that the applicant was deprived of the opportunity (pursuant to s.425 of the Act) of attending the hearing before the Tribunal because of the actions of his “authorised recipient”/migration agent in deliberately, or dishonestly, failing to inform the applicant that his case was listed for a hearing before the Tribunal.

2. Ultimately, and in particular with reference to the evidence provided by the Minister by way of the affidavit of Mr Willoughby-Thomas, there was no argument before me that the Tribunal did not comply with its statutory obligations pursuant to s.425 of the Act to invite the applicant to a hearing and that it did so by sending the invitation to the hearing by facsimile transmission to the applicant’s authorised recipient for correspondence (ss.425, 441A(5)(a), 441C(5) and 441G(1) and (2) of the Act were complied with). The issue that remained therefore was whether the alleged actions of the applicant’s authorised recipient/migration agent, in acting dishonestly, as alleged, deprived the applicant of the opportunity to attend, and therefore created a breach of s.425 of the Act.

3. Mr Godwin conceded that on this issue, this Court is bound by the majority in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 (“SZFDE”).  In that case the Full Court of the Federal Court was concerned with a situation where it was said that an applicant was deprived of an opportunity to attend a hearing before the Tribunal by the fraud of her migration agent (who was also the authorised recipient for the purposes of correspondence).  The majority of the Court held, as per Graham J (at [238]), that:

   “As indicated above, the sufficiency of an invitation can be addressed the moment the invitation is given [that is, the invitation to the hearing]. Viewed in that way, any fraudulent advice that may have been given to the first-named first respondent by her deregistered migration agent who no longer held a practising certificate as a solicitor, could not bear upon the question of whether or not an invitation had been duly given to the first-named first respondent to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

   Further, Allsop J held (at [140]) that:

   “No argument was put that the place of the migration agent in the statutory scheme of decision-making under the Act is such as to warrant a conclusion (analogous to the failure of a legal practitioner as an officer of the court in a criminal trial, for instance) that a serious breach of duty by the migration agent, can be viewed as a breakdown or corruption of the administrative process itself such that it can be concluded that there has been jurisdictional error of the Tribunal (analogous to the availability of a ground of appeal based on the incompetence of counsel).”

4. In the current case, Mr Godwin submitted that special leave to appeal has been granted by the High Court in SZFDE.  His objective in raising this issue was for this Court to make findings of fact in anticipation that the High Court’s judgment in SZFDE may provide a more favourable outcome for the applicant.  Mr Riley submitted that the Minister agreed with this position as an efficient way of proceeding.  Plainly, on the state of the law as it is now, that the applicant does not succeed on ground three.  The following consideration, however, is the compliance with the applicant’s request (supported by the respondent) for certain relevant findings of fact.

5. The applicant seeks a finding by this Court that the authorised recipient/migration agent dishonestly failed to advise the applicant of the hearing invitation which had been sent by the Tribunal.  The applicant relies on what were described by Mr Godwin as two factual areas in support of the making of such a finding.

6. The first is that relating to the alleged failure by the migration agent to tell the applicant about the hearing.  The applicant puts forward his own evidence that he was not told by his agent of any hearing and, further, when he subsequently obtained a copy of his file from the agent, which was some time after the Tribunal had handed down its decision, that the relevant invitation letter (a copy of which appears and is reproduced at CB 71 to CB 72) was not in the file.  The applicant further relies on the evidence of Mr Willoughby-Thomas that the invitation to the hearing had been sent by facsimile to the relevant migration agent (see paragraph 3 and Annexures “A” and “B” of his affidavit).

7. The applicant’s position is that those three matters, when put together, establish by inference, dishonest conduct by the agent in not informing the applicant of the hearing date.

8. The second area said to be in support of a finding of fraudulent conduct by the agent is that relating to what is said to be the agent’s communication with the Tribunal.  The relevant documents before the Court contain a copy at CB 74 of the Tribunal’s file notes relevant to this matter.  Relevantly, the file note states:

   “10/11/05  Received advice from the HCT that they are unable to find a Tamil interpreter from India (as per request of the applicant), called AR to inform the same and asked whether it is OK to book a Tamil interpreter from Sri Lanka.  AR said it is OK. AR also said that the applicant will attend the hearing and that he will send the RTHI form by tomorrow. D. Khubchandani.”

   “AR” appears to be the authorised recipient, that is, the migration agent, and the name at the end of the file entry, “D. Khubchandani,” presumably is the Tribunal employee who created this case note.

9. The applicant relies on his own evidence that he had no conversation with the adviser telling him about the hearing, and further relies on what Mr Godwin described as “circumstantial evidence” concerning the hearing invitation missing from the file ultimately given to the applicant, and the facsimile communication of the invitation to the hearing which was sent to the adviser prior to the date of the conversation recorded in the file note.

10. In relation to the agent not having been called by the applicant to give evidence, Mr Godwin submitted that the Court should not apply the “rule” in Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) because in circumstances where there is an allegation of dishonesty against the agent, the agent cannot be said to be a “natural witness in our camp.”  Further, even had he been asked to come to give evidence, it was unlikely that he would have given any useful information to the Court in circumstances where he would probably seek to “claim privilege.”

11. Mr Riley’s submission was that on the facts of this case, at best there appears to have been a lack of communication between the applicant and the migration agent, but that on the evidence available, it is not possible to go any further and to say that the agent acted dishonestly or in some fraudulent manner.  Mr Riley’s submission was that the facts do not establish dishonesty on the part of the agent, and that this is especially so in circumstances where the agent has not been called to give evidence.

12. To the extent that the applicant relies on the file note entry reproduced at CB 74 and says that no conversation took place, I understood this submission to be that no conversation took place between the agent and the applicant advising him of the hearing.  The evidence before the Court is that the invitation to hearing was sent by facsimile to the agent’s relevant number on 4 November 2005 and that this was received at the agent’s address (see Annexures “A” and “B” to the affidavit of Mr Willoughby-Thomas).  The hearing was scheduled for 25 November 2005.  The applicant’s evidence is that while he had some telephone contact (he rang the agent on his mobile and spoke to him), the agent did not tell him that he had been invited to a hearing.  The applicant could not remember the date, or dates, on which he had this conversation.  The applicant’s evidence was that he was not told of the hearing and did not learn that the Tribunal had scheduled a hearing in his case until he received a copy of the Tribunal’s decision record sent to him at his address sometime in December 2005.

13. In relation to the file note (at CB 74) and how it is said to show that the agent acted dishonestly, the file note does not record, importantly, that the agent said to the Tribunal employee that he had a conversation with the applicant, indeed any conversation with the applicant, nor that he had informed the applicant that there would be a hearing.  The file note reports the agent as having said that “the applicant will attend the hearing.”  In these circumstances it could be, as an alternative to the inference that the applicant seeks to draw, that the agent had some expectation that the applicant would attend the hearing, such as to enable the agent to send the form “by tomorrow.”  At the time of making that statement to the Tribunal employee it may have been that the agent expected to have some conversation with the applicant to enable the (hearing invitation) form to be returned.

14. There is no evidence before the Court now that the form was ever returned to the Tribunal and further, from the hand-written notation at the end of the printed file note: “still no contact from applicant re no show at 25/11/05 hearing,” signed and dated “PM 28/11/05,’” the Court would infer that the form was not returned (CB 74).

15. But what is clear is that there is no evidence that the agent told the Tribunal that he had a conversation with the applicant where he advised the applicant of the hearing.  There is no evidence to show that the agent misrepresented to the Tribunal that he had had a conversation with the applicant to convey to him the Tribunal’s invitation.  What remains is that the file note does not contribute to any positive finding that the agent acted dishonestly.

16. To the extent that the applicant asserts that an inference may be drawn that the adviser implied by his reported statement to the Tribunal that such a conversation had taken place, then equally it could be said that what was recorded was the agent’s expectation in anticipation of some future conversation with the applicant, which on the applicant’s own evidence did not take place.  Amongst other possible explanations it may be that agent honestly believed the applicant would appear if the invitation to the hearing were to be communicated to him and that he intended to do so.  That the migration agent therefore told a Tribunal employee that the applicant would attend the hearing does not, in all the circumstances, establish that the agent acted dishonestly.

17. Plainly, the evidence before the Court is that the invitation to the hearing was sent to, and received by, the migration agent.  The Tribunal’s file note confirms that the agent knew that the applicant had been invited to a hearing.  Further, that the applicant’s evidence, which remains unchallenged, was that he was never told of the hearing by the agent.  The applicant’s assertion, however, that the agent acted dishonestly, is not in my view made out on these facts.

18. Nor does the absence of the invitation letter from the applicant’s file, which he obtained from the migration agent, assist further in this regard.  Equally the “missing” invitation letter could be due to any number of reasons, including as Mr Riley submitted, that it was due to poor record keeping on the part of the agent. (A matter which, on its own, would not support a finding of dishonesty.)  A reason equally lacking in evidence before the Court to support it.  None of the evidence, either on its own, or taken as a whole, amounts, on balance, to showing that the agent acted dishonestly, let alone fraudulently. 

19. An allegation of dishonest conduct, even conduct not amounting to fraud, is still nonetheless a very serious matter.  I note that in SZFDE (per French J at [38]-[61]), the evidence before the Court was that the applicants in that case were aware of the invitation to a hearing but were “dissuaded from attending by the fraudulent behaviour” of the agent (at [61]), and that further, this was done in circumstances where the agent had been removed from the register of migration agents (and had also been struck off as a solicitor) and it could be said that the Tribunal knew that the applicants did not know of this.  

20. No evidence has been brought by the applicant before me now that the relevant migration agent had been removed from the register of agents.  Importantly, the state of all of the evidence before the Court now, as

    
    

    Mr Riley submitted, does not rise above a finding that there has been a lack of communication between the agent and the applicant.  But it cannot be said, on balance, that this lack of communication was due to some dishonest conduct on the part of the agent.

21. Further, and separately, such a finding in my view would require something more than the drawing of inferences from what is before the Court now.  Given the serious nature of the allegation, some evidence from, or opportunity to provide some evidence, on the part of the agent himself would have greatly assisted.

22. I do not say this in any Jones v Dunkel sense.  That the applicant had not called the agent to give evidence was the subject of submission by both parties.  Mr Riley submitted that there is a Jones v Dunkel inference to be drawn.  He submitted that the applicant said in evidence that the agent would agree with his account of events, that the agent is available to be called, and has not been called by the applicant.  The availability of the agent was in the context of the applicant’s evidence that he had had recent contact with the agent when he had obtained his file from him.

23. Mr Godwin’s submission was that Jones v Dunkel is not applicable to these circumstances because, in circumstances where an allegation is made of dishonesty by an agent, it could not be said that the agent is a “natural witness” for the applicant.  Further, that if the agent were to come forward, and with proper advice, he would probably seek to claim privilege in relation to these issues.

24. I did not understand the applicant’s evidence during cross-examination to be that the agent would agree with the applicant’s version of events.  What I heard the applicant to say is that the agent would have to agree to the applicant’s version of events.  I understood the distinction to be that the applicant was asserting the honesty of his own account, and was saying that the agent, if he were to give, presumably, honest evidence, would have to agree.  But that the applicant had no knowledge that the agent would in fact so agree even if he were available to give evidence. Therefore, in all the circumstances, I draw no inference adverse to the applicant from any failure on his part to call the agent to give evidence.

1. The situation is simply, on the actual evidence before the Court now, there is in my view not sufficient evidence, on balance, to say that the agent acted dishonestly.  The failure to communicate the hearing invitation, and the absence of the invitation letter from the applicant’s file do not, either on their own or taken together, without other evidence, establish dishonest conduct by the agent.

2. None of the grounds advanced by the applicant with the benefit of Counsel, reveal jurisdictional error on the part of the Tribunal.  Accordingly, the application is dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Amy Douglas-Baker

Date:  11 July 2007