SZLIX v Minister for Immigration - [2008] FMCA 945

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIX v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 945

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLIX”.

Migration Act 1958 (Cth), s.91X

Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
SZLIX v Minister for Immigration & Anor [2007] FMCA 1625

Applicant:

SZLIX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2922 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

2 July 2008

Delivered at:

Sydney

Delivered on:

11 July 2008

REPRESENTATION

Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

Mr A. Markus (solicitor)

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 21 September 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2922 of 2007

SZLIX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

This matter has been remitted to the Federal Magistrates Court from the Full Federal Court for reconsideration: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17. The orders delivered on

28 September 2007
by this Court were set aside and the Full Federal Court rejected the applicant’s claim of third party fraud.
The original application to the Federal Magistrates Court was heard on an urgent basis as the applicant was held in immigration detention pending removal from Australia. The applicant filed an application for review on 21 September 2007. There was limited information before this Court and I found that there was third party fraud: SZLIX v Minister for Immigration & Anor [2007] FMCA 1625. The Full Federal Court rejected this argument based on insufficient evidence.
The remitted matter was then listed before this Court on 20 May 2008. The parties consented to the following orders:
1. A bundle of relevant documents be filed by 27 May 2008.
2. The applicant file and serve an amended application setting out clear particulars of the grounds to be relied upon to be filed and served by 17 June 2008.
3. The applicant to file and serve affidavit evidence in support of the application by 17 June 2008.
4. The matter be listed for a show-cause hearing on 2 July 2008.
There was no amended application or supporting affidavit filed and the only documents before me are those contained in the original application.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence. On 2 June 2008, the applicant faxed a document to the Court which included a statement. Mr Markus, for the first respondent, asked for this document to be marked as an exhibit and I mark it Exhibit “B”. At the commencement of the hearing on 2 July 2008, the applicant sought leave to file an affidavit prepared by him which attaches a statutory declaration sworn by a Mr Wang. The affidavit was subject to a number of objections by Mr Markus. Those objections were upheld and Mr Wang was not available to give evidence or be cross-examined. The affidavit was not admitted into evidence.

Consideration

Grounds one and two

1. When I lodged the application for a Protection Visa on 28 November 2005, I hired and fully authorised a migration agent to take care of my application due to my language barrier and lack of legal knowledge. I signed some documents as the agent advised without knowing what they are.
After my application was refused by the Department, the agent notice me he will file a review application with the RRT on my behalf. Shortly after that, he gave me date and time of the hearing and advised me to attend the hearing by myself. When I arrived at the RRT according to the time I was given, I was advised by an interpreter that the Member would not attend the Tribunal. I showed the Tribunal my intention of providing oral evidence and was advised I will be given another hearing. The Tribunal also advised that I would receive the new hearing invitation within 2 weeks.
6 weeks after that I still have not received anything from the Tribunal. I then moved to Brisbane and worked there. I informed the agent my new contact address and left him my phone number before I left. Since the agent was my authorised correspondence receiver, I required him to inform me the next hearing date promptly once it is set. However, I have never received anything from him since.
2. I only realised I missed the second RRT hearing after I was put in VIDC. I filed a FOI request for the documents regarding my PV application but could not have it when I lodged the judicial review application with the Federal Magistrates Court. The application was therefore rejected.
I believe if I could have attended the RRT hearing, I would have a chance to present oral evidence and clarify some major issues lay out in the RRT’s decision record regarding my refugee claims.
I also believe the migration agent has not acted professionally. He never intended to discuss with me my persecution experience due to my Falun Gong background. This is the reason why the Tribunal states that my claims were vague and general. I strongly believe this is why the agent did not want me to attend the RRT hearing.

The applicant confirmed that he still relied on the original grounds of review contained in his original application to this Court filed on

21 September 2007
. Although orders were made on 20 May 2008 granting the applicant leave to file an amended application, he declined to do so. At the directions hearing it was also arranged for the applicant to participate in the scheme that provides unrepresented applicants in refugee matters an opportunity to receive independent legal advice. The applicant was allocated a panel advisor and the Court file indicates that advice was provided.
When the applicant was invited to make oral submissions, he made the following statement through the interpreter:
I think the RRT member wasn’t honest because last time I went to the Tribunal at 8am on time but the judge wasn’t there so I think the RRT member talk lies. I thought RRT member has all records of my presentation to RRT and also the Court. And I have all these in my statement. I would like to ask you, your Honour, to read my statement. (Transcript, p.4)
He appears to be addressing the issue of his non-appearance at the first Tribunal hearing scheduled on 12 April 2006.
The Tribunal originally wrote to the applicant on 23 February 2006 stating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to attend a hearing scheduled on 12 April 2006 at 9.30am at Level 13, 83 Clarence St, Sydney.
The Tribunal decision records what occurred on that day under the heading “Claims and Evidence”:
On 23 February 2006 the Tribunal wrote to the applicant advising that it had considered all the material before it in relation to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present argument at a hearing on 12 April 2006. The applicant did not make contact with the Tribunal, but attended a Tribunal after the scheduled hearing and stated that he wanted to give oral evidence and present argument. The Tribunal therefore wrote to the applicant again, on 15 May 2006 inviting him to appear on 26 June 2006. The applicant did not make contact with the Tribunal in regard to attending this hearing nor did he attend the hearing or contact the Tribunal to explain his failure to attend. The Tribunal checked to make sure that the applicant is still in Australia, also checked to ensure that correspondence was sent to the applicant’s correct address. In these circumstances and pursuant to s.426A of the Act the Tribunal has decided to make its decision on review without taking any further action to enable the applicant to appear before it. (CB 58.4)
The applicant indicated to the Court that he was advised on 12 April 2006 by a Tribunal officer that there had been a discussion about him missing the Tribunal hearing and that he would be notified by letter of a rescheduled hearing within three weeks. The Tribunal issued a letter on 15 May 2006 addressed to the applicant at the same post office box in Auburn as the previous letter. The letter stated that the new hearing would be held on 26 June 2006 at 11.00am at Level 11, 83 Clarence St, Sydney (CB 49). The applicant indicated that he did not receive this but, when asked, confirmed that the post office box which he had given for receipt of all correspondence from the Tribunal belonged to a friend.
The issue now before the Court concerns the applicant’s claim from the application filed on 21 September 2007 that the decision of the Tribunal was compromised by third party fraud. That is, fraud on the Tribunal by a person other than the applicant, resulting in the Tribunal being unable to discharge its statutory function in the conduct of the review. The substance of the assertion appears to be that the alleged fraud was committed by a person identified as the applicant’s migration agent.
Mr Markus submits that there is nothing in the evidence before the Court which would establish an arguable basis for the person referred to as the applicant’s migration agent as having committed fraud on the Tribunal. He submits that the evidence demonstrates that the applicant engaged the services of a person (migration agent status unknown) who provided some assistance in preparing his protection visa and subsequent Tribunal review applications. Both sets of forms include a post office box in Auburn as the contact address for the applicant. The applicant has consistently maintained that the post office box was not the address of his migration agent but that of a friend. Consequently, any letters and notification sent to the applicant was sent to this post office box which would have been accessed by his friend. It was then a matter for the friend to either provide the mail to the applicant or the migration agent, but there is no evidence which clarifies what the arrangements were in this regard.
The applicant’s “statement” (Exhibit “B”) suggests that the migration agent contacted him following the Tribunal’s issue of the first hearing invitation letter. That invitation was dated 20 February 2006 (CB 47-48) and the hearing was to be on 12 April 2006 at 9.30am. It was requested that the applicant arrive at least fifteen minutes before the start of the hearing. The applicant therefore claims that he was notified of this Tribunal hearing by the migration agent.
Ground one of the application states:
Shortly after that, he gave me date and time of the hearing and advised me to attend the hearing by myself.
The applicant’s statement (Exhibit “B”) reads:
On 12 April, I first arrived at Gao’s office and we arrived at the RRT at half past eight.
In oral submissions, the applicant indicated that he arrived at the Tribunal at 8.00am but his statement gives his arrival time as 8.30am.
In any event, the applicant was required to be at the hearing venue by 9.15am. However it is recorded on the Tribunal’s finalisation record that he attended the hearing late and was given the opportunity to attend a rescheduled hearing (CB 52).
The evidence of the applicant raises a number of inconsistencies:
a)The applicant claims he arrived at the Tribunal hearing between 8.00am and 8.30am, while the Tribunal records him as being late.
b)The applicant claims he attended the Tribunal hearing alone (see [13] above) while also claiming that he attended with his migration agent (Applicant’s statement, Exhibit “B”)
c)The earlier claim that he only met his migration agent once when he paid him and then never saw him again contradicts later statements that they met on two separate occasions.
Regardless of these inconsistencies, the Tribunal hearing did not proceed on the original date and the applicant was given to understand that there would be another hearing and he would be notified of the time and place that would take place. In some of his evidence, the applicant indicated that he was told he would be notified within two weeks and in other evidence that it would be within three weeks.
Despite these inconsistencies and on the applicant’s own admission, the migration agent did tell him when the first hearing was on and also either told him to attend the hearing himself or they attended together. Neither of those versions supports the applicant’s claim that the migration agent committed fraud on either him or the Tribunal in any respect. The balance of the evidence amounts to a proposition that the applicant stayed in Sydney for up to six weeks waiting for the rescheduled hearing and in that time was in regular contact with his friend who was the owner of the post office box. His friend told him several times that he had not received any communication from the Tribunal for the applicant. The applicant then went to Brisbane and he claims that his friend again confirmed that he had not received any mail from the Tribunal.
Regardless of what weight I put on any of this evidence, including the inconsistencies, none of it establishes any basis for a claim that the migration agent committed fraud on the Tribunal. I am satisfied that the applicant would have difficulty establishing that the migration agent committed fraud on him for the fact that the applicant had been led to believe that the agent was a registered agent when he in fact was not. There is no evidence before the Court as to the migration agent’s registration status. I note that there has been inconsistent evidence given about when and how the applicant met this person. Regardless of the registration status or circumstances of the person identified as the applicant’s migration agent, the significant issue is that the failure of the applicant to attend the second Tribunal hearing is not directly connected to the migration agent as that was not the person with access to the post office box. In these circumstances, the claim that the migration agent committed third party fraud on the Tribunal cannot be sustained.
I am satisfied that the notification letter was forwarded to the address of the authorised recipient as nominated by the applicant. That address is a post office box in Auburn and the holder of that box was a friend of the applicant’s. The applicant has confirmed in his statement and submissions that this friend and the migration agent are not the same person. Consequently the applicant’s claim of third party fraud by the migration agent must fail.
There are a number of authorities which discuss an applicant’s failure to appear at a Tribunal hearing leading to rejection of their claims because of a lack of information before the Tribunal. In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29], Allsop J states:
The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
In the matter before this Court, the Tribunal did not make positive findings of fact about the position of the applicant but rather rejected his claims because of its inability to be satisfied, on the lack of information before it, that Australia owed protection obligations to him. This was clearly expressed in the Tribunal’s “Findings and Reasons”:
Apart from flimsy and unsupported allegations, the applicant has provided no real detail about his claim to fear harm arising from his supposed association with Falun Gong. The applicant failed to attend his scheduled hearing and present oral arguments and evidence to explain himself and:
o   Without the opportunity to question the applicant to ascertain the depth of his personal knowledge of and commitment to the practice of Falun Gong and;
o   In light of his failure to provide any documentary evidence to support his claims, and;
o   Without the Tribunal being able to question the applicant to ascertain answers to the questions raised through his written claims [and discussed above] and;
o   Without being able to ascertain what he has been doing since 1997;
The Tribunal cannot be satisfied, on the evidence before it, that the applicant is a genuine adherent to Falun Gong or that he would face harm in the reasonably foreseeable future upon return to the PRC. (CB 60)

Conclusion

The only explanation provided by the applicant for not attending the rescheduled Tribunal hearing – being the actions of his migration agent – is contradicted by his own evidence and submissions and cannot be sustained. In the circumstances, the application should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 11 July 2008