SZIZL v Minister for Immigration and Anor (No.2)
[2008] FMCA 1024
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIZL v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2008] FMCA 1024 |
| MIGRATION – Review of RRT decision – where applicant alleged that migration agent lodged application to RRT without applicant’s authorisation – where applicant alleged migration agent did not inform applicant of RRT hearing – where letter sent to both applicant and migration agent – delay – exercise of discretion to refer matter. |
| SZIZO v Minister for Immigration [2008] FCAFC 122 Minister for Immigration v SZIQB [2008] FCAFC 20 WAEE v Minister for Immigration (2003) 75 ALD 630 |
| 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: | 21 July 2008 |
| Date of last submission: | 21 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Teleo Group Pty Ltd |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Blake Dawson |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $10,000.00.
| 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
On 25 June 2008 I delivered an interim judgment in this matter: SZIZL v Minister for Immigration & Anor [2008] FMCA 710. I explained that the case before me as identified in the amended application filed on
14 February 2008 had three grounds, the first being that the Tribunal failed to accord the applicant procedural fairness, the second that the Tribunal failed to take into account a relevant consideration, and in the alternative to those two grounds, a third ground that the Tribunal failed to exercise its jurisdiction because of a fraud upon it. I elaborated on these matters in [3] of my reasons for decision:
“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].”
I heard evidence from the applicant in regard to his dealings with his migration agent. The evidence included reference to his reasons for seeing the migration agent, payment made to the agent and advice given. The applicant maintained in his affidavit and under cross-examination that he had paid the agent $430.00 for the migration assistance and exhibited a receipt. Based upon my assessment of the applicant’s evidence I expressed the view in my reasons that I believed that the applicant had instructed the agent to take steps to seek a review of the delegate’s decision from the Tribunal and that whilst he had not signed the documentation himself, he had authorised it to be completed on his behalf. Because the process by which I came to those views included making an inference based upon the date of the receipt which was exhibited to his affidavit, I sent the parties a copy of my draft reasons and provided them with an opportunity to comment thereon. The Minister submitted that the inference I had drawn was correct and the applicant provided some more detailed written submissions which included further evidence by way of affidavit from the applicant. In that affidavit he deposed to the fact that the receipt was not for work done in connection with his application to the Tribunal, or indeed in connection with his application for a protection visa generally, but for the translation of documents. The respondent submitted that I should not entertain this affidavit, but I determined to do so on the basis that the respondent could cross-examine the applicant upon it. The matter was set down for further hearing on 21 July 2008. As set out in [12] of my reasons:
“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.”
At the adjourned hearing the applicant gave evidence under cross-examination. He told how the receipt had nothing to do with his application for a protection visa. He said it was for Chinese legal documentation. He agreed that he had attached it to his first affidavit of December 2006 in support of paragraph 11 which he had said:
“Thomas LIU from Shine Business Consulting Centre 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.”
Under cross-examination he agreed that he had attached this receipt to the affidavit even though he knew it had nothing to do with the subject matter of the application. He recalled seeing Mr Liu. He recalled
Mr Liu writing the receipt and giving it to him. He told Mr Kennett that the payment was for Mr Liu to facilitate the obtaining of a new passport after the applicant’s had expired. He did not respond to questions as to what documents were needed, but said that he had taken his passport to be renewed to the embassy and they would not do it, and that Mr Liu promised to help. When Mr Kennett asked the applicant why he did not remember that when he had completed the affidavit of 6 June 2008, he said he was not asked about it. In his affidavit of 6 June 2008 the applicant says in relation to the receipt:
“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.”
The applicant gave non-responsive replies to questions about what the documents were that were evidenced by the receipt, and his responses to questions concerning why he did not state in his affidavit that the work Mr Liu had done for the $430.00 was for renewal of his passport were equally vague and unresponsive. The applicant would not accept that the receipt was dated in early March 2002, claiming not to be able to read the English script, and he could not recall whether he saw
Mr Liu in early March 2002, saying it was too long ago to remember. He could not say whether Mr Liu would write an inaccurate date upon a receipt. In response to questions from Mr Kennett, the applicant repeated his assertions that Mr Liu had told him he could not help him with an appeal to the Tribunal and that he had to take part in a class action. He said that he did not talk about his visa when he had gone to see Mr Liu about his passport, and denied that he had told Mr Liu to do whatever he could and authorised him to complete the necessary forms.
I found the applicant’s evidence on this occasion no more satisfactory than I had found his evidence on the earlier occasion. It appeared to me to be tailored to a result that the applicant wished to achieve, namely that the application to the Tribunal purportedly on his behalf was in fact a frolic of Mr Liu’s own, which was neither authorised by nor advised to the applicant. Nothing in the evidence which I heard has persuaded me that the inference which I drew from the proximity in date of the receipt for $430.00 and the decision by the Tribunal to accept an application and grant an interview indicated that the applicant had authorised the agent to act in this manner and was well aware of the hearing date.
In the light of these findings I am satisfied that the applicant did authorise the application being made, and was aware of the hearing date. There was no fraud upon him or upon the Tribunal. I do not know the reason why the applicant did not choose to go to the hearing, but he did not do so, and in those circumstances the Tribunal’s failure to be satisfied that he was a person to whom Australia owed protection obligations was almost inevitable. I asked Mr Dobbie, who had appeared for the applicant pro bono and for whose assistance the court is grateful, if he accepted that if I came to a view that the application had been authorised by his client, then the notification to him of the hearing date by sending the same to the box number given on the application was proper service. Mr Dobbie indicated that on the authority of SZIZO v Minister for Immigration [2008] FCAFC 122 he believed that would follow.
The ground of application which comes directly from the Tribunal decision is that the Tribunal did not take into account a letter dated 8 November 2001 in which the applicant informed the Tribunal that because of him his family was having problems in China and could not return [CB 12]. The applicant argues that that letter was material to the review because it showed that the applicant had ongoing problems in China. The Tribunal, in its statement found at [CB 27], says that the applicant had provided no additional information in support of his application for review, and the applicant argues that this is incorrect because of the letter. Before I come to consider whether the treatment of this letter constitutes a jurisdictional error in the hands of the Tribunal, I have to be satisfied that I should not exercise my discretion to decline to refer the matter on the grounds of the applicant’s considerable delay of over four years from the Tribunal’s decision.
I am not satisfied that the applicant is a witness of truth, and have difficulty accepting his statement that he was unaware of the Tribunal’s decision until 2006. I have taken into account the views expressed by the Full Bench in Minister for Immigration v SZIQB [2008] FCAFC 20 and accept that there must be a satisfactory explanation for any delay of this magnitude. I do not think the applicant has satisfactorily explained the delay, and in those circumstances, would propose to exercise my discretion not to grant relief even if I have been convinced, which I have not, that the Tribunal’s apparent failure to consider the letter entailed a failure to take into account an integer of his claims: WAEE v Minister for Immigration (2003) 75 ALD 630 at [48], rather than something that merely gave some weight to his original assertions, which the Tribunal was unable to test because of his non-attendance at the hearing.
I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $7,500.00.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
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