SZIVK v Minister for Immigration
[2007] FMCA 972
•29 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 972 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming well-founded fear of persecution for reason of imputed political and religious profile arising out of his friendship with a Falun Gong follower – where applicant did not attend Tribunal hearing – whether there was a jurisdictional error because of a fraud by the applicant's migration agent. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 426A, 411G, 474 |
| Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 referred to R v Leyland Justices; ex parte Hawthorn [1979] QB 283 referred to Hot Holdings Pty Ltd v Creasy (20020 210 CLR 438 referred to NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 referred to Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 referred to SZFML v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 152 referred to VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 referred to NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 referred to SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 93 referred to SZBII v Minister for Immigration [2006] FMCA 954 followed SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 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: | 15 December 2006 |
| Date of Last Submission: | 15 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondents: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The title of the first respondent is changed to Minister for Immigration and Citizenship.
The application is dismissed.
The Applicant is to pay the first respondent’s costs fixed in the sum of $8,000.00.
| 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
This is an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal”) handed down on 8th April 2003. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks judicial review of that decision. In his amended application filed in court on the day of the hearing he seeks the following orders:
i)That the decision of the Tribunal be quashed;
ii)That the matter be remitted to the Tribunal differently constituted to be determined according to law; and
iii)Costs.
Background
The applicant is a citizen of the People’s Republic of China.
He arrived in Australia on 4th May 2001 and applied for a protection (class XA) visa on 15th June 2001. After his application was refused on 29th November 2001 the applicant applied to the Refugee Review Tribunal for a review of that decision.
Application for Review by the Refugee Review Tribunal
The applicant lodged his application for review with the Tribunal on
4th January 2002. In that application he nominated a migration agent, Pricilla International Co. Pty. Ltd. as his authorised recipient. He later advised the Tribunal of a change in his home address.
The Tribunal wrote to the applicant, both at his home address and at the address of his migration agent, on 10th December 2002, inviting him to attend a hearing of the Tribunal on Friday 24th January 2003.
On 15th December 2002 the Tribunal received a Response to Hearing Invitation bearing the stamp of his migration agent, advising that he wished to attend the hearing and he required the services of a Mandarin Chinese interpreter. A copy of that document appears on page 75 of the Court Book.
The applicant did not attend the hearing on 24th January 2003.
The Tribunal proceeded to make its decision. A copy of the Tribunal decision and reasons for decision appears on pages 83 to 96 of the Court Book.
In its decision the Tribunal examined the applicant’s claims of an imputed political and religious profile because of his association with a Falun Gong follower, referred to as “W”, under the heading “Claims and Evidence”[1]. The Tribunal noted that the applicant claimed that W was detained by the PSB and had died in detention. The applicant, who claimed to have been a policeman, had claimed to have passed internal PSB information to W’s girlfriend. The applicant also claimed to have obtained a false passport and fled China, travelling via Singapore to Australia. He claimed that his father was in detention and would be released if the applicant were to return to China.
[1] See pages 86 and 87 of the Court book
The Tribunal also set out matters relating to Falun Gong and the treatment of Falun Gong practitioners in China at some length, under the following headings:
“(i) Background to Falun Gong”
(ii)When and why Falungong[2] started to attract government attention
(iii)Overview of types of treatment of F-G practitioners since 1999
(iv)Evidence of differential treatment of leaders and followers
(v)Exit procedures.
[2] sic
The Tribunal’s findings and reasons are set out on pages 94 to 96 of the Court Book. The Tribunal noted that the applicant had not attended the hearing and set out a number of matters that would have been put to the applicant had he attended. They included:
(a)How and where he obtained his travel documents and his means of departing China;
(b)That independent country information indicated that Fujian Province, the province from where the applicant had come, had “one of the most active bribery/corruption problems (sic) involving passports” and that activities included bribery for passports and exit permits, the fabrication of false certification and even of passports;
(c)That there are criminal penalties covering exit and entry out of the People’s Republic of China by using forged, altered or invalid documents;
(d)What type of information he had disclosed, how he had accessed the information;
(e)How the PSB came to assume that it was the applicant who had leaked information;
(f)What were the circumstances of the death of the applicant’s friend, a Falun Gong practitioner referred to as “W”;
(g)What were the current circumstances of W’s girlfriend;
(h)Whether the applicant’s father was still in detention and if he had been charged with any offence;
(i)Independent evidence about the practice of Falun Gong in China and how it related to the applicant’s claims;
(j)How W and his girlfriend had practised Falun Gong;
(k)Whether the applicant was involved in any other activity that might have brought him to the adverse attention of the authorities;
(l)If there was any other reason why the applicant had to use a ruse to leave China; and
(m)If there was any other reason why the Chinese Government would deny him a passport.[3]
[3] See Court Book at 95-96
The Tribunal summarised its findings and reasons by stating:
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.[4]
[4] Court Book at 96
The Tribunal affirmed the decision not to grant a protection visa.
Application for Judicial Review
The Applicant relies on these grounds in support of his application:
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”).[5]
[5] This ground was abandoned at the hearing
Submissions and Evidence
Counsel for the applicant, Mr Zipser, called evidence from the applicant. The applicant affirmed an affidavit on 10th August 2006, which for some reason was not filed until 11th December 2006.
The substance of his evidence was that he applied for a refugee visa in June 2001. He employed a migration agent, a Chinese man named Harry, to assist him. He contacted the agent from time to time to find out what was happening. Each time the agent said that 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 on 14th March 2003.
The applicant denied that an address in Campsie NSW that appeared in a change of address form was ever his residential address. He also denied that the signature in Mandarin script that appeared on that form was his signature.[6]
[6] A copy of the change of address form appears at page 67 of the Court Book.
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 Migration Act. He claimed not to have been aware of the existence of that letter until 2006.
[7] A copy of that letter appears at page 79 of the Court Book.
[8] A copy of that letter appears at pages 57 and 58 of the Court Book.
The applicant also deposed in his affidavit that he was detained on
6th April 2006and placed in detention at the Immigration Detention Centre at Villawood. He claimed that until he was detained he was unaware that there had been a Tribunal decision in his case.
The applicant gave oral evidence. In evidence in chief he denied that the signature in English script on an Authorisation of person to act and receive communication, authorising his migration agent to receive communications on his behalf, was his signature.[9] He also denied signing an application for review by the Refugee Review Tribunal on 3rd January 2002[10] and a Response to Hearing Invitation on
15th December 2002.[11]
[9] A copy of that document appears at page 54 of the Court Book.
[10] See Court Book page 64
[11] See Court Book page 71.
In cross-examination by Ms Mitchelmore of counsel for the Minister, the applicant said that he had never signed anything and the agent did everything for him. He said that the signature in English characters that appeared on the documents was not his “way of writing”. He said that he had called his migration agent “a few times” to inquire about the progress of his case. He had never said that he did not want to attend a hearing. Eventually, he was no longer able to speak to the migration agent.
Submissions
Counsel for the applicant, Mr Zipser, submitted that:
a)The applicant lost the opportunity of attending a hearing in the Tribunal because of fraud by his migration agent. In the circumstances there was jurisdictional error in the Tribunal’s decision.
b)
Section 422B of the Migration act applies – what effect does
s.422B have on whether there was jurisdictional error.
Mr Zipser referred the court to the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 where Lord Bridge said at 898:
These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity ti 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.
He submitted that there may be an exception to this principle where there is fraud. In Al-Mehdawi (supra) at 895, Lord Bridge referred to the decision of Lord Widgery CJ in R v Leyland Justices; ex parte Hawthorn [1979] QB 283:
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 (see also Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [22] per Gleeson CJ; NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [52]).
Mr Zipser submitted that it was open to the court to make findings of fact as to whether the applicant was or was not aware of the need to attend a hearing and, if he was not aware, whether it was due to the actions of the migration agent. He further submitted that:
a)there was evidence before the court that the applicant’s migration agent included information in the protection visa application and the application for review that was not correct, and that the agent knew was not correct, and the agent had no instructions to include that information in the application; and
b)on that basis, it was open to the court to conclude that there was fraud by the migration agent which deprived the applicant of an opportunity to attend a hearing before the Tribunal.
Accordingly, it was open to the court to conclude that there was jurisdictional error in relation to the Tribunal’s decision.
Counsel for the applicant also submitted that as a result of the agent’s fraud there was a failure to comply with s.425 of the Migration Act because the applicant was not provided with a “real and meaningful invitation” (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]).
Counsel for the applicant submitted s.422B of the Migration Act does not apply. This is because s.422B(1) provides that:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
In this case, the principles discussed are not aspects of the natural justice hearing rule so, it is submitted, s.422B does not apply.
For the first respondent Minister, Ms Mitchelmore of counsel submitted that the reason for the Tribunal’s decision was that on the information provided to it the applicant had not established a well-founded fear of persecution.
The Tribunal had invited the applicant to attend a hearing and the invitation complied with s.441G of the Migration Act. The applicant’s migration agent had sent a positive response to the hearing invitation but the applicant did not appear. The Tribunal proceeded under s.426A by making a decision on the review without taking any further action to allow or enable the applicant to appear before it. In SZFML v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 152 The Full Court of the Federal Court at [60] described the effect of s.426A(1)(b) as being that “if an applicant, having been invited to appear, does not appear on the appointed day, the Tribunal may then proceed to a decision”
Ms Mitchelmore submitted that provided that the Tribunal complies with the procedures set out in the Migration Act for the provision of notices to an applicant, the applicant cannot complain that he or she has not been accorded procedural fairness (see VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (20040 136 FCR 407 at [15]-[16]; NADK of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 184 at [16]; SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 93).
In SZBII v Minister for Immigration [2006] FMCA 954, Nicholls FM stated at [56]:
The fraud that needs to be pleaded is a fraud on (or by) the Tribunal, or without fraud, some error or omission or failure by the Tribunal (whether amounting to fraud or not) in meeting its relevant obligations to the applicant to provide an opportunity to attend the hearing.
On appeal, Cowdroy J noted that in Minister for Immigration and Multicultural Affairs v SCAR (supra) the Full Court of the Federal Court found that the Tribunal innocently provided unfair treatment to the appellant in circumstances where the appellant was ill.[12]
His Honour went on to find at [27] that there was in that case and in several other cases cited:
Some error or omission or conduct on the part of the Tribunal which led to the hearing being infected with jurisdictional error.
[12] [2006] FCA 1477 at [26]
In SZBII (supra) there was no such error or omission or conduct.
As to the applicant’s argument that s.422b does not apply because the principles discussed are not aspects of the natural justice hearing rule, Ms Mitchelmore submitted that the applicant’s argument is misconceived. In her written submission at [20] she stated:
Section 422B(1) provides that Division 4 is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. The circumstances of this case fall squarely within the application of the provisions of Division 4. The Tribunal complied with all of the relevant provisions of that Division.
With respect, I believe that submission to be correct.
Conclusions
The applicant has given evidence that he was not aware of the hearing due to the actions of his migration agent. The applicant did not serve any of the documents in this matter on the migration agent concerned and the agent has therefore not appeared or made any submissions.
In the circumstances I am not prepared to make any finding of fraud.
There is no evidence that the Tribunal had any knowledge that the applicant was unaware of the hearing. I am satisfied that the Tribunal complied with the requirements of s.425 of the Act by inviting the applicant to attend a hearing. The Tribunal sent the invitation to the applicant’s migration agent, who was the applicant’s authorised recipient, and also sent a copy to the applicant at his last known address. The Tribunal has complied with the requirements of s.441G of the Act.
The migration agent sent a reply to the Tribunal’s hearing invitation, indicating that the applicant wished to attend. When the applicant did not appear on the appointed day, the Tribunal was entitled to proceed to a decision under the provisions of s.426A (SZFML v Minister for Immigration and Multicultural and Indigenous Affairs (supra)).
There is no evidence of any error or omission or failure by the Tribunal in meeting its relevant obligations to the applicant to provide an opportunity to attend the hearing (SZBII v Minister for Immigration [2006] FMCA 954 at [56]). There was no conduct by the Tribunal that indicates any jurisdictional error.
The applicant’s argument that s.422B does not apply, as I previously indicated, is incorrect.
There is no jurisdictional error. The Tribunal’s decision is therefore a privative clause decision as defined by s.474(2) and so the application will be dismissed.
I will hear submissions as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 21 June 2007
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