SZIVK v Minister for Immigration
[2008] FMCA 1056
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1056 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal – where applicant did not attend Tribunal hearing – where applicant claims fraud by migration agent – whether Tribunal breached Migration Act 1958 (Cth) s.424A – inconsistency is not information for the purpose of s.424A – whether applicant was not provided with a “real and meaningful invitation” to attend a hearing – evidence – standard of proof of fraud – motive – no jurisdictional error. |
| Evidence Act 1995 (Cth) s.140 Migration Act 1958 (Cth) ss.417, 422B, 424A, 425 |
| SZIVK v Minister for Immigration & Anor [2007] FMCA 972 SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 SZEPZ v Minister for Immigration and Citizenship [2006] FCAFC 107 followed. SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 followed. SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; 81 ALJR 1401; [2007] HCA 35 followed. Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 cited. SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 cited. Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 cited. Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 cited. NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 cited. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 cited. Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 cited. Bater v Bater [1951] P 35; [1950] 2 All ER 458 followed. Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334 followed |
| Applicant: | SZIVK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1373 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 June 2008 |
| Date of Last Submission: | 18 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondent: | Ms Mitchelmore |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1373 of 2006
| SZIVK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 8th April 2003. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant seeks judicial review of that decision. His application has been heard previously. I handed down a decision dismissing his application on 29th June 2007 (SZIVK v Minister for Immigration & Anor[1]). On 13th March 2008 Finkelstein J allowed the Applicant’s appeal, set aside the orders made on 29th June 2007, and remitted the application to this Court for rehearing.
[1] [2007] FMCA 972
The application was heard on 18th June 2008.
Background
The Applicant is a citizen of the People’s Republic of China who arrived in Australia on 4th May 2001. He applied for a Protection (Class XA) visa on 15th June 2001. His application was refused on 29th June 2001. The Applicant then applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The application was lodged at the Sydney Registry of the Tribunal on 4th January 2002. The application nominated a migration agent, Pricilla International Co. Pty. Ltd., as his authorised recipient. His home address was given as 10 Sixth Avenue Campsie NSW. A Notice of Change of Address, apparently dated 25/03/02, was received by the Tribunal, advising that the Applicant’s new residential address was
319 Liverpool RoadAshfield NSW.
The Tribunal wrote to the Applicant, both at his new residential address and the address of his migration agent, on 10th December 2002, inviting him to attend a hearing on Friday 24th January 2003.
On 15th December 2002 the Tribunal received a Response to Hearing Invitation, bearing the stamp of his migration agent and purportedly signed by the Applicant in printed English capitals. The Response indicted that the Applicant did wish to attend the hearing and required the services of a Mandarin Chinese interpreter[2]. The Response to Hearing Invitation nominated a mailing address for the Applicant as PO Box 66, Beverly Hills, NSW.
[2] See Court Book at page 75.
The Applicant did not attend the hearing on 24th January 2003.
The Tribunal signed its decision on 14th March 2003 and wrote to the Applicant at his Post Office Box number, advising that the decision would be handed down on 8th April 2003. The Tribunal posted a copy of the decision to the Applicant at that address on 8th April 2003.
In its findings and reasons, the Tribunal said:
The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it, but the applicant has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well founded fear of persecution within the meaning of the Convention.[3]
[3] Court Book at 96
The Refugee Review Tribunal Decision
The Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court on 11th May 2006. His then counsel, Mr Zipser, filed an amended application in Court on 15th December 2006, seeking orders that the decision of the Tribunal be quashed and that the matter be remitted to the Tribunal differently constituted to be determined according to law. I am not satisfied that the Federal Magistrates Court has the power to make an order dictating that the Tribunal should be differently constituted (SZEPZ v Minister for Immigration and Multicultural Affairs[4]).
[4] [2006] FCAFC 107
The Applicant has not filed any further document and I have taken him to be still relying on the amended application. The application sets out these grounds:
a) The applicant contends that he lost the opportunity of attending a hearing in the Tribunal because of fraud of his migration agent. In the circumstances, there was jurisdictional error in the Tribunal’s decision (“Fraudulent 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) One reason the Tribunal rejected the applicant’s claims was because of inconsistency in the applicant’s claims in his protection visa application. This inconsistency was “information” within the meaning of s.424A(1) of the Act. The Tribunal failed to comply with s.424A, giving rise to jurisdictional error (“Section 424A issue”).
The third Ground was abandoned by the Applicant’s then counsel at the first hearing. However, the Applicant was not legally represented at this hearing and, although he did not argue the ground, I consider that I should at least consider it. It is the case that inconsistency has been held by the High Court not to amount to “information” for the purposes of s.424A(1) (see SZBYR v Minister for Immigration and Citizenship[5]). Accordingly, the Applicant’s Ground (c) must fail.
[5] (2007) 235 ALR 609 at [18]
Evidence
The Applicant affirmed an affidavit on 10th August 2006 which was not filed until 11th December 2006. The Applicant deposed that he applied for a refugee visa in June 2001. He employed a migration agent who was a Chinese man called Harry. The Applicant contacted the agent from time to time to find out what was happening. Each time the agent said he would contact the Applicant if there was any news.
The Applicant deposed that the last time he contacted the agent was in 2002. In that year he was granted permission to work, so he assumed that he had been granted a visa. He also deposed that he was unaware:
a)that his matter was in the Refugee Review Tribunal;
b)that there was a hearing on 24th January 2003; and
c)that the Tribunal made a decision dated 14 March 2003.
The Applicant denied that the Campsie address was ever his residential address. He denied that the signature in Mandarin script on the Tribunal Notice of Change of Address was his signature.[6]
[6] Court Book at 67
The Applicant also denied ever having received from the Tribunal a letter dated 8th April 2003 telling him that the Tribunal had decided that he was not entitled to a protection visa[7]. He also denied any knowledge of a letter dated 26th April 2003[8] apparently from him to the Minister, seeking the exercise of the Minister’s discretion under s.417 of the Act. He claimed not have been aware of the existence of the letter until 2006.
[7] Court Book 79
[8] Court Book 57-58
The Applicant also deposed that he was detained on 6th April 2006 and placed in detention at Villawood NSW. He claimed that until he was detained he was unaware that there had been a Tribunal decision in his case.
In his second affidavit, the Applicant referred to various copies of documents in the Court Book on which appeared signatures.
He identified as his the signatures that appeared:
a)On the appointment of a Person to Act as his Agent[9]; and
b)On a statutory declaration[10].
[9] Court Book 12
[10] Court Book 31
The Applicant denied that the signatures on these documents were his:
a)An authorisation of person to act and receive communication[11];
b)
A Change of Address Form showing his new address as
319 Liverpool RoadAshfield[12];
c)The final page of the Refugee Review Tribunal Application for Review[13]; and
d)The Response to Hearing Invitation[14].
[11] Court Book 54
[12] Court Book 55
[13] Court Book 64
[14] Court Book 71
The signatures that the Applicant identified as his were in Chinese characters. Those that he did not acknowledge were either printed in English block capitals or, on the Application for Review, in running writing. The Applicant explained in his affidavit that he could not write running writing.
The Applicant was cross-examined by counsel for the Minister,
Ms Mitchelmore. He denied that he had ever lived at 10 Sixth Avenue, Campsie. He said that he did not know that his application for review had been lodged in the Refugee Review Tribunal. He said he was told by the agent later. He was shown various documents in the Court Book and he reiterated his denials that the signatures on them were his.
The Applicant did not call any other witnesses or present any other evidence.
The First Respondent called Harry Huang to give evidence. He is a registered migration agent and works with his wife, Priscilla Yu, in a company called Pricilla[15] International Pty Ltd.
[15] sic
Mr Huang told the Court that he had been a migration agent for more than 10 years. He acknowledged that he had prepared a statutory declaration in which he set out his involvement as the Applicant’s migration agent.
Mr Huang said that when the Applicant’s application for a protection visa was refused they notified the Applicant and asked him to come to their office. They explained the reason for the refusal decision and said that he had the right to seek a review of that decision. He said that they asked him to sign the form, being the application for review, and told the Applicant what would happen before the Tribunal.
Mr Huang said that they had not retained a hard copy file for the matter because before April 2005 they were only required to retain the files for two years. He said that their practice was to tell the Applicant to attend the hearing before the Tribunal and give oral evidence.
They would also tell the Applicant the date of handing down the decision.
As to signing documents, Mr Huang said that it was their practice to ask the client to come to their office and explain everything to him, and then ask the client to sign. Before the client signs the form he or she must know what form he has signed and what is contained in the form.
Ms Mitchelmore asked Mr Huang if he had any recollection of the Applicant attending his office. He said:
Yes, of course I do have because this particular case for the – for me I remember very clearly because I used to think that is very strong case because he has good education background and he also have special employment background in China so – and he also have involvement in something with the (indistinct) so I think that is a strong case so that impress me very deeply. And also I remember that case, he actually bring the – use the passport, not the Chinese passport, it is a Taiwanese passport come here and so that is another thing, because sometimes the issue is if the person have problem they cannot get out of China but if they use the first document that can make them bypass the (indistinct) check and then come to Australia. So that is why I have this impression for this case.[16]
[16] Transcript page 17
Mr Huang denied signing the Response to hearing Application for the Applicant. He also denied signing Authorisation of Person to act and receive Communication form for the Applicant. He identified the other signature on the form as that of his wife.
Mr Huang also denied signing the other documents on behalf of the Applicant.
Ms Mitchelmore then led from Mr Huang evidence that his registration as a migration agent had been suspended for 9 months in 2005 and he was required to attend four hours of ethics tuition and not practice as a migration agent during the period of suspension. He said he had complied with the conditions of his suspension and had returned to practice.
The Applicant cross-examined Mr Huang. He put to Mr Huang that he had never met him and that all his dealings had been with Ms Yu,
Mr Huang’s wife. Mr Huang denied that and said that he had handled the Applicant’s case from beginning to end.
Mr Huang denied the Applicant’s suggestion that he had not authorised anyone to sign documents on his behalf and said that he did not sign the documents. He said that only he and his wife worked at their firm.
There were no other witnesses.
Submissions
Because the Applicant was unrepresented, I took the decision that I would hear a submission from Ms Mitchelmore first so that the Applicant would have an idea of what was required of him.
Ms Mitchelmore submitted that fraud is an allegation that must be proved to a special standard due to the seriousness of the allegation. She submitted that the nature of the fraud is such that it has to stultify the processes of the Tribunal and mere dishonest or negligent conduct is not sufficient to unravel what would otherwise be the normal procedures (see SZFDE v Minister for Minister for Immigration and Citizenship[17] ).
[17] (2007) 237 ALR 64; 81 ALJR 1401; [2007] HCA 35
Ms Mitchelmore submitted that the Applicant was not a credible witness in view of the inconsistencies in his evidence between the hearing in this Court and on previous occasions. In particular, the Applicant said on this occasion that he had not signed the Response to Hearing Invitation when he previously admitted that he had.
Ms Mitchelmore also submitted that even if the Court were to accept that there had been omission on the part of the agent in advising the Applicant of the hearing, there was no substratum of facts that would justify the inference that the agent dishonestly omitted to give that Applicant that information (see Minister for immigration and Citizenship v SZLIX[18]). In order to constitute a fraud on the Tribunal, it is not enough for the agent to act negligently or incorrectly; he or she must act fraudulently (see SZFNX v Minister for Immigration and Citizenship[19]).
[18] [2008] FCA 17 AT [30] per Tamberlin, Finn, and Dowsett JJ
[19] [2007] FCA 1980 at [33] per Besanko J
The Applicant submitted that there was a big difference between his signature and the signatures on some of the documents which he maintained he had not signed. He said that it was impossible for him to write English letters, fluently and smoothly, on 3rd January 2002, because he had just arrived in Australia at that time.
The Applicant maintained that Mr Huang’s evidence was a lie because he had never met him and never talked to him. The only way he knew there was anyone called Harry at the office of the migration agent was because he saw the name on a sign and realises that there was a person called Harry within the company.
Ms Mitchelmore, in reply, submitted that the Applicant’s earlier affidavit had said that he had engaged a migration agent to help him who was a man, who was Chinese. The Applicant thought his name was Harry.
I told the Applicant at the hearing that, because he was not legally represented, I would consider the submissions prepared for his earlier hearing by Mr Zipser of counsel, who had appeared for him on that occasion.
In the submission, Mr Zipser submitted that s.422B of the Migration applied and there was a question as to what effect s.422B had on whether there was jurisdictional error. He submitted that s.422B did not apply. Section 422B(1) of the Migration Act provides:
This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The principles relating to fraud by a migration agent are not aspects of the natural justice hearing rule and therefore s.422B does not apply to this case.
As to the fraud issue, the submission referred the Court to the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department[20] where Lord Bridge said at 898:
These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens.
[20] [1990] 1 AC 876
It was submitted that there may be an exception to this principle where there is fraud. In Al-Mehdawi at 895, Lord Bridge referred to R v Leyland Justices; Ex parte Hawthorn[21] in which Lord Widgery CJ stated:
However, if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all these matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category.
[21] [1979] QB 283
The above passage from Al-Mehdawi was referred to with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy[22] at [22] and was considered obiter in NASB v Minister for Immigration and Multicultural and Indigenous Affairs[23] at [52].
[22] (2002) 210 CLR 438
[23] [2004] FCAFC 24
There was evidence that the Applicant’s migration agent included information in the protection visa application and the application to the Tribunal which was not correct, which the agent knew was not correct, and which the agent had no instructions to include in the application.
It was therefore open to the Court to conclude that there was fraud by the migration agent that deprived the Applicant of an opportunity to attend a hearing before the Tribunal, thereby leading to jurisdictional error.
The submission further claims that as a result of the agent’s fraud there was a failure to comply with s.425 of the Act because the Applicant was not provided with a “real and meaningful invitation” (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[24] at [37]).
[24] (2003) 128 FCR 553
It was the Applicant’s contention that he was unaware that a hearing was to be conducted. The test applicable in this case is whether or not he authorised his agent either generally or specifically to complete the Response to Hearing Invitation. As there was no effective consent submitted to the Tribunal by the Applicant concerning the hearing, he was not bound by the conduct of his agent (see Minister for Immigration and Multicultural and Indigenous Affairs v SZFML[25]).
[25] [2006] FCAFC 152
Conclusions
The allegation is one of fraud. It is well established that in an allegation of this kind the Court must consider the gravity of the accusation when considering the standard of proof to be applied. As Denning LJ said in Bater v Bater[26] :
So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established.
[26] [1951] P 35 at 36-7; [1950] 2 All ER 458 at 459
The High Court of Australia dealt with this issue in Briginshaw v Briginshaw[27] where Latham CJ said:
The standard of proof required by a cautious and responsible Tribunal will naturally vary in accordance with the seriousness or importance of the issue.[28]
[27] (1938) 60 CLR 336; [1938] ALR 334
[28] Briginshaw (1938) 60 CLR 336 at 343-4; [1938] ALR at 337
Rich J said:
The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.[29]
[29] Briginshaw (1938) 60 CLR 336 at 350; [1938] ALR 334 at 339
Dixon J said:
It is often said that such an issue as fraud must be proved ‘clearly’, ‘unequivocally’, ‘strictly’ or ‘with certainty’…[30]
[30] Briginshaw (1938) 60 CLR 336 at 362-3; [1938] ALR at 342-3
The Evidence Act 2001 at s.140 provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
This is an allegation of a fraud by a migration agent that had an effect on the decision-making process of the Refugee Review Tribunal, being a fraud that “had the immediate consequence of stultifying the operation of the legislative scheme to give natural justice” to the Applicant (see SZFDE v Minister for Immigration and Citizenship[31] ). It is an allegation of some gravity.
[31] [2007] HCA 35 at [49]
The Applicant’s evidence is that he did not sign a number of documents that were important to his case and that he did not authorise the migration agent to sign those documents on his behalf. He maintained this position under cross-examination. It has been put to the Court that there are inconsistencies in his evidence compared to his evidence on a previous occasion. Clearly, the Court should take into account the fact that the Applicant speaks little or no English and that he gave his evidence through an interpreter.
It is significant, however, that the Applicant has maintained at the recent hearing that he had not met Harry Huang and had never spoken to him, but his affidavit affirmed on 10th August 2006, which he affirmed to the Court was the truth, said something completely different. In the affidavit he deposed:
In June 2001 I applied for a refugee visa. I engaged a migration agent to help me with the application. The agent was a man. He was Chinese. I think his name was Harry.[32]
[32] Applicant’s affidavit affirmed on 10 August 2006 at [3]
This is a serious inconsistency that goes to the Applicant’s credibility.
The Minister has called evidence from Harry Huang, the migration agent, who said that he had acted for the Applicant and denied that he had either signed documents in the place of the Applicant or had not informed him of the Tribunal hearing. He was not shaken in cross examination.
The fact that the signatures that the Applicant agreed were his were signatured in Chinese characters whilst those he disavowed were in English script adds plausibility to the Applicant’s account, but the evidence falls short of establishing fraud. It is possible to surmise that a less than ethical agent might cut corners by signing the Applicant’s name on a documents rather than going to the trouble of calling the Applicant in to the office, but the evidence is not of sufficient strength to establish even this.
In my view, the fatal flaw in the Applicant’s case is that there is no suggestion of any motive for carrying out the alleged fraud. It will be recalled that the High Court looked at the question of motive in SZFDE at [45] – [46] of the former migration agent and solicitor in persuading the Applicant in that case not to attend the Tribunal hearing.
In that case, however, what did the agent stand to gain if the Applicant did not attend the Tribunal hearing? What did he have to lose if the Applicant did attend? The agent was at the time a registered migration agent. His involvement in the Applicant’s case did not need to be kept secret from the Tribunal. He gave evidence that he was suspended for 9 months in 2005, but that was long after the time when he was acting for the Applicant. I t was not as if the agent had concocted a false story for the Applicant that would be exposed if he attended the Tribunal hearing.
It was Mr Huang’s evidence that he had thought the Applicant had a good case, so it would have been in the Applicant’s interest to attend. If the Applicant was successful before the Tribunal, this would have had a positive effect on the agent’s professional reputation.
If it were the case that the agent had somehow overlooked advising the Applicant about attending the Tribunal hearing or had been dilatory in preparing his case, this may amount to negligence but would fall far short of fraud.
After a careful consideration of the evidence, I have formed the view that it is insufficient to establish any fraud by the Applicant’s migration agent.
The Applicant was not legally represented in these proceedings, although he was previously represented. An independent reading of the Tribunal decision does not disclose any arguable case for any jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) and the remedies of certiorari or mandamus are not available.
The application will be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: July 2008
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