SZIZL v Minister for Immigration

[2008] FMCA 710

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIZL v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 710

MIGRATION – Review of RRT decision – where applicant did not appear at Tribunal hearing – where letter from Tribunal notifying applicant of hearing not received by applicant – whether fraud on the part of the migration agent – where applicant raised matters which amounted to re-opening the case to provide new evidence.

Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth), ss.425A, 426A, 430, 441A

Singh v Minister for Immigration (2000) 98 FCR 77
SZLIP v Minister for Immigration [2008] FMCA 283
SZFDE v Minister for Immigration [2007] HCA 35
Muin v Refugee Review Tribunal [2002] HCA 30

Applicant: SZIZL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1837 of 2006

Judgment of: Raphael FM

Hearing date: 26 May 2008

Date of last submission: 26 May 2008

Delivered at: Sydney

Delivered on: 25 June 2008

REPRESENTATION

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondent: Mr G Kennett

Solicitors for the Respondent: Blake Dawson

ORDERS

1. Application adjourned for further hearing on a date to be fixed.

2. Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1837 of 2006

SZIZL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 12 January 1996. On 28 June 1996 he lodged an application for a protection (class AZ) visa. On 12 September 1997 a delegate of the Minister refused to grant a protection visa. The applicant was notified of that decision in a letter sent the same day, but the letter was never received by the applicant and was returned, unclaimed, to the Department. On 7 May 2001 the applicant was sent documents from his Departmental file including a record of the delegate’s decision pursuant to a request under the Freedom of Information Act 1982 (Cth). On 14 May 2001 the applicant applied for review of the decision. The Refugee Review Tribunal, applying the dicta of the Full Federal Court in Singh v Minister for Immigration (2000) 98 FCR 77 accepted that the applicant was notified of the delegate’s decision only upon actual receipt of the documents. His application for review was accepted. On 28 February 2002 the Tribunal wrote to the applicant advising him that it had considered all the papers related to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 1 May 2002. He was advised that if he did not attend or a postponement was not granted the Tribunal would proceed to make a decision on the case without further notice to him. No response was received even though the letter was also sent to the applicant’s adviser, who the Tribunal says informed it that he had lost contact with him. When the applicant did not appear, the Tribunal proceeded to determine his application pursuant to s.426A Migration Act 1958 (Cth) (“the Act”). On 1 May 2002 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 28 May 2002.

2. It is accepted by the Minister that the Tribunal cannot satisfy the court that the applicant received a copy of the Tribunal’s decision within the 14 day period set out under s.430 of the Act, which would mean that the court has jurisdiction to review the Tribunal’s decision: SZLIP v Minister for Immigration [2008] FMCA 283. The respondent accepts that the applicant is ‘in time’ to make this application to the court but argues that the court should exercise its discretion not to refer the matter back to the Tribunal.

3. There are three grounds upon which the applicant seeks review. Dealing with them in the order in which they were argued before me, the first was that the Tribunal failed to exercise its jurisdiction because of fraud on the Tribunal. The applicant says that he never gave instructions to his then migration agent to seek review and that the Tribunal application and review form are not signed by him. He argues further that a letter purportedly signed by him and sent on his behalf to the Tribunal [CB 12] was not authorised by him. If I was to accept the applicant’s evidence on these points, I could hold that the Tribunal did not have the jurisdiction to affirm the delegate’s decision and that he was in the same position now as he had been prior to the correspondence with his then agent and can submit an application for review. Alternatively, it is suggested that the situation is one where there has been a fraud on the Tribunal going to its jurisdiction, being that the applicant was portrayed as having sought review when he had not done so: SZFDE v Minister for Immigration [2007] HCA 35 at [49]-[53].

4. I heard evidence from the applicant through an interpreter.  He told how he went first to a migration agent in Chinatown he said that he would help him to apply for a visa.  From 1996 to 2001 he contacted the agent frequently, but he was always put off without being provided with any information.  In mid-2001 he went to the office again, but found that the office had been closed.  He became anxious and he saw another migration office nearby, so he walked in and asked for help.  A Mr Liu from that migration agency told him that he could help the applicant provided the sum of $480.00 was paid.  A document purporting to be that receipt is exhibited to the affidavit, but it is dated 5 March 2002.  The applicant continues:

   “12. Few weeks later Thomas LIU told me that DIMA had rejected my application and I had out of the 35 day appeal.  Thomas LIU said he could fix the problem for me but it would be a long battle, he asked me to be patient and not keeping contact him.  He promised me that he would contact me immediately if he had any news. 

   13. I contacted Thomas LIU from time to time; he always asked me to give him some more and explained to me that my case wasn’t an easy task.  So I was tried to be patient and wait. 

   14. About the beginning of 2004, while I rang Thomas LIU, the people from Shine Business Consultant Center always told me that Thomas LIU was not in the office.  Due to my previous experience, I was very nervous, so I attended their office and demanded to meet Thomas LIU.  The people from the office told me that Thomas LIU had left the company and went back to China.”

   The applicant then explained that he became lonely and depressed and together with his cousin commenced practicing Falun Gong.  In 2006 he and his cousin decided to appeal to this court after they had obtained details of the Refugee Review Tribunal decision pursuant to an FOI application. 

5. The applicant was cross-examined and he was asked several questions by myself.  I explained to the applicant that I had difficulty in believing his story and gave him an opportunity to tell me why I should believe it.  One of the grounds upon which I advised the applicant I was not inclined to believe him was that in the letter of 11 May 2001 [CB 1] the DIMA file number is referred to, and I indicated to him that I could not see how the agent would have had the DIMA file number unless the applicant had given him some papers from DIMA.  I am now satisfied that the DIMA file number would have come from the papers provided to the agent on 7 May 2001 and therefore this ground for not accepting his evidence would be invalid.  I should say that I accept (as I believe does the respondent Minister) that the applicant did not sign any of the documents or letters himself but I am still unable to accept his evidence.  This is because the applicant stated for the first time at the hearing that when he went to see Mr Liu he told him about the DIMA decision.  Mr Liu told him that he could join a class action.  He thought that was what was going to happen.  But I doubt very much whether this was the conversation between them for these reasons.  Firstly the applicant is unable to identify what the class action was.  Second, if one took a guess and suggested that it was the Muin and Lie (see: Muin v Refugee Review Tribunal [2002] HCA 30) class action then the applicant has not suggested any grounds upon which the matters that were in issue there were relevant to his case. Third, and most important, the Court Book reveals that the agent was remarkably successful within a very short period of time in persuading the Refugee Review Tribunal to grant the applicant a hearing. Although I accept (with some considerable degree of hesitation) that the applicant never gave Mr Liu his address and Mr Liu at all times thought he was living at the address to which the DIMA decision was sent, being an address that he had left some years before, the agent did have his mobile phone number. Having, within a very few days and for the expenditure of very little time obtained a review of the DIMA decision, it is most unlikely that the agent would not have told the applicant. I am of the view that the applicant authorised the agent to make the application for review that is found at [CB 4]-[7] although he did not sign it.

6. The applicant was specifically asked whether he authorised the writing of a letter dated 8 November 2001 [CB 12].  This letter is in the following form:

   “The Deputy Registrar
   Refugee Review Tribunal
   Level 29, Pacific Building
   201 Elizabeth St. Sydney
   NSW 2000
   Fax: [phone]

   Dear Sir/Madan

   Re: Application for Review of Decision to Refuse Protection Visa (Refugee Status)

   [Name of Applicant] [Applicant’s date of birth]

   I am writing for application for reviewing my case.

   As in the last letter dated 11/05/2001, I have explained to the office about my reason of late response to your letter for review, please refer to the attached copy.

   As I was told by my family, they had been affected due to the relationship with me, they had been discriminated by the public, in this situation, I can’t go back to China, so I am requesting to have my case reviewed as soon as possible.

   Many thanks,

   [Applicant’s name].”

   The applicant denied it.  Whilst I accept that he did not sign the letter I am of the view that he provided the agent with the information contained in the third paragraph as it is inherently improbable that the agent would make all this up and seek an early review. 

7. I accept that the applicant did not receive personally the copy of the hearing invitation addressed to him at an address in Lakemba that he had left many years before.  But the hearing invitation was also sent to him at the address of his migration agent, as well as to the migration agent, and was dated 28 February 2002. 

8. The receipt for the sum of $430.00 referred to in [4] above was issued on 5 March 2002.  I could infer that this money was paid to the agent on that date after the agent had advised the applicant of the hearing on 1 May 2002.  Because I had not put this inference to the applicant and it had not been put in argument I provided the applicant and the respondent with a copy of these reasons up to this paragraph and gave them an opportunity to comment within 7 days.

9. On 5 June 2008 my associate received from the solicitors for the Minister his response to my invitation to comment:

   “ … the Minister submits that the inference contained in paragraph 7 of the draft reasons is the appropriate inference given the date of the hearing invitation (28 February 2002) and the date of the receipt (7 March 2002).

   We are instructed that the Minister does not wish to make any further formal written submissions on the issues raised by your letter.”

   On 6 June 2008 the applicant provided some further written submissions:

   “1. The Applicant maintains his version of events as stated in his Affidavit and in the evidence before the Court.  He was never informed by Mr Thomas Liu of the matter before the Refugee Review Tribunal.  His Affidavit dated 6 June 2008 confirms that he did make the payment to Mr Thomas Liu, but it was never for a matter before the Refugee Review Tribunal.

   2. The Applicant wishes to bring to the Court’s attention that the invitation to attend a hearing from the Refugee Review Tribunal dated 28 February 2002 and the invitation to attend the handing down of decision was addressed copied to a Mr Mark Sutherland (CB15).  In the event that the Court rejects the Applicant’s evidence of not being aware of any review before the Refugee Review Tribunal, the applicant contends that Mr Mark Sutherland was never his authorized recipient.  The Applicant has never met Mr Mark Sutherland and has never instructed Mr Mark Sutherland in any matter.  He does not know who Mr Mark Sutherland is.  We respectfully seek leave to amend the application to include the further ground:

   The Applicant was not invited to attend a hearing before the Tribunal before the Tribunal made a decision on the papers, in breach of the Act.

   3. The invitation to hearing from the Refugee Review Tribunal was sent to an unauthorized recipient.  The invitation was therefore not lawfully sent and the decision could therefore not have been made on the papers in those circumstances.

   4. The Applicant has no objection to the Minister putting on further evidence and submissions going to any of the contentions raised in these submissions and the Applicant’s evidence, including calling Mr Sutherland, or the Applicant, or any other person to give evidence.”

10. The matters raised by the applicant were significant and amounted to a re-opening of his case in order to provide new evidence.  In the circumstances I allowed the first respondent an opportunity to provide me with further written submissions, which he did.  As these submissions deal with the applicant’s affidavit which he sought to be admitted, it is necessary for the purposes of understanding these reasons to set it out:

    “1. I affirm the statements contained in my previous Affidavit in this matter, and my evidence given in court in this matter.

    2.  I was never informed by Mr Thomas Liu about the Refugee Review Tribunal application.

    3. I never instructed Mr Thomas Liu to lodge an application for review to the Refugee Review Tribunal.

    4. I do not recall the exact date I paid Mr Thomas Liu the $430.  The receipt was not in relation to any Refugee Review Tribunal matter, but to certification of Chinese documents.  I cannot recall why that was done.  I am certain it was not in relation to any Tribunal matter and that he did not mention anything about a Tribunal matter.  Annexed and marked ‘A’ is a copy of the receipt and a translation of it.

    5. I cannot explain why Mr Thomas Liu acted in the way he did.  I can only say I was never told about the Tribunal review.  I certainly did not pay any money to Mr Thomas Liu to act on my behalf for an RRT review.

    6. I note that the RRT’s correspondence was addressed to a Mr Mark Sutherland.  I do not know this Mr Mark Sutherland and I have never met him.  I have never authorised him to be my representative nor authorised recipient.”

    The exhibit attached to the affidavit is a translation of the receipt.  The respondent provided an affidavit of Hayley Anne Blackman which exhibited another translation of the receipt.  The translations are not identical but they both confirm that the receipt was for doing something with Chinese legal documents, and the amount payable was $480.00 but only $430.00 was paid.  The evidence given by the applicant in his affidavit of 5 December 2006 relating to the receipt is:

    “Thomas LIU from Shine Business Consultant Center told me that he could help me but I needed to pay him $480.  I gave Thomas LIU $480 and he gave me the receipt (I still have the receipt on your requested).  Thomas LIU told me that he would contact DIMA and find out the progress of my application.”

11. The Minister in objecting to any re-opening of the applicant’s case notes that the applicant originally chose to tender an untranslated copy of the receipt and told the court that it had related to his consultations with Mr Liu about a protection visa. The Minister argues there is no reason why he should now be permitted to tender a translation and take a different position on what the payment was for. The Minister then makes two objections as to the form of the affidavit; firstly that there is no certification that it has been translated to the applicant, and secondly, that the form of paragraph 3 is inadmissible, finally, the second sentences of both paragraphs 4 and 5 are either opinions or conclusions.

12. Bearing in mind the importance of the applicant’s claims, that he is a person who has a genuine fear of persecution should he return to his home country, I would propose to admit into evidence the two translations of the receipt. Having done that, and having acknowledged that the existence of the receipt is an important matter in my consideration of the applicant’s credibility, I believe that I have no alternative but to admit the affidavit which attempts to explain the receipt, and allow the respondent to cross-examine the applicant upon it. It may well be that after having heard the evidence the matter can be disposed of very quickly. The applicant also seeks in his submissions to make an additional claim, namely that he was not invited to attend a hearing, before the Tribunal made its decision on the papers in breach of the Act. He argues that the hearing invitation was not sent to his authorised recipient as there was no recipient. But the fact is that the letters from the Tribunal found at [CB 8] and [CB 14] (the invitation) were sent to the applicant as well as to Mr Sutherland. As there is no argument that the invitation was not physically sent to the addresses within the time contemplated by s.441A(3), if I find that the applicant did instruct Mr Liu’s firm to proceed with the application to the Refugee Review Tribunal, then I could infer his having agreed to utilise that office’s address as his address for service. If the letter was sent in time to him at that address it is my view that it was given to him by one of the methods set out in s.441A and was thus in accordance with s.425A(2). In those circumstances there would be no utility in allowing the amendment because it would be doomed to fail. My final decision upon this aspect of the matter should therefore await my hearing of the further evidence.

13. In the light of these reasons I will adjourn the matter to a date to be fixed at the handing down and reserve costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  25 June 2008