SZKPX v Minister for Immigration

[2007] FMCA 1597

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKPX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1597

MIGRATION – RRT decision – applicant consented to Tribunal making decision without a hearing – blamed his migration agent – consent actually given – fraud by agent not established – no jurisdictional error found.

Migration Act 1958 (Cth), ss.417, 425, 426A

Minister for Immigration & Multicultural Affairs v SZFML [2006] FCAFC 152

SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63

Applicant: SZKPX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1506 of 2007

Judgment of: Smith FM

Hearing date: 10 September 2007

Delivered at: Sydney

Delivered on: 10 September 2007

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms S Sirtes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3848 of 2006

SZKPX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in October 2003 from the People's Republic of China.  He had previously travelled to Australia on a visit in October 2002, when he learned that people who were Falun Gong practitioners were receiving protection here.  When the applicant returned in October 2003 he found a migration agent, Mr Han, and employed him to make an application for a protection visa on his behalf.  He signed the forms, and they were lodged with the Department of Immigration containing many details of the applicant which were correct. 

2. The application was accompanied by a statement signed by the applicant, claiming that he had been a practitioner of Falun Gong since 1997 and had become an organiser in his local area.  He claimed that in March 2003 he had printed Falun Gong documents and distributed them, and that he was arrested, detained and sentenced to a re-education class for three months before being released.  He claimed that he then had to report to police, and that he came to Australia to claim protection.

3. No details or supporting documents were ever provided to the Department of Immigration, nor to the Tribunal.  A delegate of the Minister refused the application on 24 December 2003.  According to documents on the Tribunal's files, the applicant signed an application for review by the Refugee Review Tribunal, assisted by Mr Han.   In response to an invitation to attend a hearing on 18 March 2004, the applicant signed a "Response to Hearing Invitation" document.  This responded to the question “Do you want to come to a hearing?”:  "No, I do not want to come to a hearing, I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it."

4. Relying upon that consent, the Tribunal proceeded to make a decision on such material as it had before it. This was authorised by s.425(2)(b) of the Migration Act, since it was no longer obliged to invite the applicant to appear at a hearing nor to allow him that opportunity.

5. The Tribunal considered the applicant's claims in the material before it, and found that they were vague and unparticularised.  It said:

   Due to the lack of detail in the above aspects of the applicant's claims and without the opportunity to test his claims at a hearing, the Tribunal is not prepared to accept his assertions. Specifically, the Tribunal does not accept that the applicant is or ever was a Falun Gong practitioner or that he came to the adverse attention of the authorities as a result.

6. It therefore was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention, and affirmed the delegate’s decision.  Its decision was handed down by posting a copy of the decision and reasons to the applicant and to his agent on 15 April 2004. 

7. The applicant then signed an application to the Minister for discretionary intervention under s.417, and this application was declined by the Minister in February 2005. The applicant did not commence judicial review proceedings in relation to the Tribunal's decision until 11 May 2007; that is, two years and three months after the s.417 request was refused, and more than three years after the Tribunal's decision.

8. In effect, the applicant's ground of review is that he did not receive the Tribunal’s letter inviting him to attend the RRT hearing, because the agent did not inform him.  In a statement attached to an affidavit filed on 11 May 2007, the applicant maintained this claim.  He did so also in a further statement attached to an affidavit filed on 27 August 2007.  Those two statements have inconsistencies as to when the applicant learned that he had been refused a protection visa application and that his appeal had failed.  On his latter statement, he never learned that there was an appeal which had failed until shortly before commencing the present litigation.

9. The applicant's oral evidence under cross-examination contained a significant retreat from that version of events, and was unimpressively given.  The applicant initially maintained that he had never heard the outcome of his initial visa application, but had entirely trusted his agent, and had signed lots of documents without knowing their content and never learning their outcome.  However, ultimately the picture which I obtained from his evidence was that he had several attendances with his agent.  He was probably aware that the Department of Immigration had refused his visa application, and that he needed to appeal to the Tribunal.  The applicant admitted all his signatures on all the documents before me, and ultimately conceded that he was aware at the time that his application was passing through a staged process of consideration.

10. When presented with his signature on the “Response to a Hearing” invitation, the applicant agreed that it was his.   His evidence, as elucidated by me at the end of his cross-examination, clearly indicated that he had discussed with his agent the evidence which he might give to the Tribunal if he attended the hearing to which he was invited.  I therefore find that he was, in fact, aware of his appeal brought to the Tribunal, and that he had been invited to attend a hearing.  I find that he discussed this invitation with his agent, and received the agent's advice in relation to what evidence he might give. 

11. I am not satisfied that I can make any findings as to the probable content of the agent's advice to the applicant, and as to its effect on his decision to sign the consent form.  The applicant would have me believe that his agent advised him to give false evidence, and for that reason the applicant decided not to attend.  However, the applicant did not persuade me that his judgment was improperly influenced in any fashion by the agent, nor that he was not able to judge for himself what evidence he could truthfully give to the Tribunal if he attended.  I am not persuaded that there were any false or misleading statements made by the agent to the applicant which induced him to waive his right to attend the hearing.  It may be that the applicant's agent gave him unsatisfactory or negligent advice, but I am not satisfied that anything more on the part of the agent might have caused the applicant to decide not to attend the hearing.  It is possible that the agent, in fact, correctly advised the applicant that he was unlikely to be able to improve his case by attending the hearing.

12. In the light of my above findings, I am not persuaded that the applicant’s consent to the Tribunal deciding the case without giving him another opportunity to attend a hearing was vitiated in the manner found by the Full Court in Minister for Immigration & Multicultural Affairs v SZFML [2006] FCAFC 152. The consent which was forwarded to the Tribunal was, in fact, the consent of the applicant, and was not falsely premised in the manner found in that case.

13. I have further considered whether, unknown to the Tribunal, the applicant’s loss of that opportunity can be attributed to the actions of a fraudulent agent in a situation analogous to that found by the High Court in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. However, I am not satisfied that it can. In my opinion, the applicant's evidence, as ultimately presented to the Court, suggests to me that he suffered at most from “bad or negligent advice or some other mishap” (see SZFDE at [53]).   Because of the general unreliability of the applicant's evidence to the Court, I am not persuaded that the applicant stayed away from the hearing as a result of some fraudulent statement on the part of his agent.

14. In my opinion, therefore, the Tribunal's exercise of its power to decide the case was not vitiated by any jurisdictional error.  Its reasoning was manifestly open to it on the material before it, and I do not consider that the decision reveals any jurisdictional error.

15. I note that the submissions of counsel for the Minister addressed the formal sufficiency of the letter inviting the applicant to attend a hearing.  It was conceded that, in accordance with SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63 at [29], a formal requirement in relation to the addressee of an invitation to a hearing sent to an authorised recipient was not met in this case. Although the invitation, in fact, came to the attention of the applicant and his agent, it should have been addressed to Mr Han, and not to the applicant himself. However, that point does not assist the applicant, since the Tribunal did not purport to act under s.426A(1). Rather, as I have noted above, it formed the view that the applicant's consent to the Tribunal making a decision gave it authority to determine the matter on the evidence available, and it was not obliged to ensure that the applicant’s agent was given a formally correct invitation.

16. In the course of the applicant's cross-examination today, he was questioned about the reasons for his taking three years to seek judicial review of the Tribunal's decision.  He said that after he became aware that his application to the Tribunal had failed he had become disillusioned with his agent, and was unwilling to spend more money obtaining further advice or assistance.  It was not until recent times that a friend advised him on how he could challenge what had happened by making an application to this Court.

17. The Minister submits that the applicant's evidence did not adequately explain an unwarranted delay in seeking the intervention of the Court.  There is merit in that submission.  However, I do not need to address it, since I have not found jurisdictional error affecting the Tribunal’s decision. 

18. For the above reasons, I consider that I must dismiss the application. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  4 October 2007