SZLQI v Minister for Immigration

[2009] FMCA 910

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQI v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 910

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal constructively failed to exercise its jurisdiction as a result of third party fraud – whether Tribunal breached s.426 of the Migration Act.

Evidence Act 1995 (Cth), s.140
Migration Act 1958 (Cth), ss.417, 425, 425A, 426, 441A, 441C, 441G

Briginshaw v Briginshaw and Another (1938) 60 CLR 336
Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501
MWJ v The Queen (2005) 80 ALJR 329
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 724
SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189
SZHVM v Minister for Immigration and Citizenship and Another (2008) 170 FCR 211
SZICU v Minister for Immigration and Citizenship and Another (2008) 100 ALD 1
SZIVK v Minister for Immigration and Citizenship [2008] FCA 334
SZMQE v Minister for Immigration & Anor [2008] FMCA 1474
Tapp v Lee (1803) 3 Bos & P 367; (1803) 127 ER 200

Applicant: SZLQI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3547 of 2007

Judgment of: Barnes FM

Hearing dates: 7 February, 29 July, 5 September, 17 November 2008, 5 & 9 February 2009

Date for Last Submission: 1 May 2009

Delivered at: Sydney

Delivered on: 17 September 2009

REPRESENTATION

Solicitors for the Applicant: Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3547 of 2007

SZLQI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal made on 20 November 2003 and handed down on 16 December 2003 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant is a citizen of South Korea who arrived in Australia in April 2003 and applied for a protection visa in May 2003. 

2. The applicant claimed in his protection visa application that after the 1998 IMF crisis in Korea he was “recruited into an underground group of businessmen ‘who blamed the government for the IMF cries’ (sic) of 1998”.  He claimed that the group organised secret meetings to try to find ways to change the government and that after the activities came to the notice of the authorities, secret service agents and armed police broke up a meeting and several members of the group were arrested. The applicant claimed that he could not return to Korea for fear of being “arrested for his political activities”. 

3. On 22 May 2003 a delegate of the Minister refused the application, finding that the applicant’s claims were not consistent with country information about the situation in South Korea and that there was no objective basis for his fears. 

4. The applicant sought review by the Tribunal.  On 28 August 2003 the Tribunal wrote to the applicant care of Mr John Eyeson-Annan, the authorised recipient nominated in the review application, inviting the applicant to attend a hearing on 11 November 2003 at a time and place specified and advising him that if he did not attend and the Tribunal did not postpone the hearing it could make a decision on his case without further notice.  A copy of this letter was sent to the applicant at the home address provided in the review application. 

5. On 8 September 2003 the Tribunal received a completed response to hearing invitation form on which, in response to the question “DO YOU WANT TO COME TO A HEARING”, the box marked “NO, I/we do not want to come to a hearing, I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it” was marked with a cross. 

Tribunal decision

1. In its reasons for decision the Tribunal referred to the response to the hearing invitation and stated that the matter had “therefore been determined on the evidence available to the Tribunal”.  The Tribunal set out the applicant’s claims made in connection with his protection visa application.  It noted that no further claims had been made in connection with the review.  The Tribunal was not satisfied on the evidence before it that the applicant had engaged in the political activities he claimed, that those activities attracted the adverse interest of the authorities or that he was persecuted because of his political opinion.  It found that his claims lacked detail and were broad and in speculative terms.  It was unable to be satisfied that the harm the applicant feared was well founded or that there was a real chance that he would suffer persecution if he returned to South Korea.  On the evidence as a whole the Tribunal found that the applicant had not been persecuted in South Korea.  It was not satisfied that he had a well-founded fear of persecution if he returned to South Korea. 

Request for Ministerial intervention

1. On 5 January 2004 Mr Eyeson-Annan wrote to the then Minister on behalf of the applicant, requesting her to exercise her “public interest power to grant him a more favourable decision” in place of the decision of the Refugee Review Tribunal under s.417 of the Migration Act 1958 (Cth). On 14 September 2004 a delegate of the Minister wrote to Mr Eyeson-Annan informing him that the Minister “had decided not to consider exercising her power in this case”. 

The application

1. The applicant filed an application for judicial review of the Tribunal decision on 14 November 2007.  At that stage he was in the Villawood Detention Centre.  His original claims raised an issue of some apparent complexity of third party fraud on the part of a barrister/migration agent.  After he obtained pro bono representation, a number of amended applications were filed.  The basis for the claim of third party fraud underwent some modification.  The applicant now relies on a final amended application filed on 9 February 2009.  There are four grounds in the final amended application, but the applicant relies only on grounds one and four.  They are that “[t]he Tribunal constructively failed to exercise its jurisdiction as a result of third party fraud by the Applicant’s migration agent and or Ms Hong, a person associated with the Applicant’s migration agent” and that “[t]he Tribunal breached s426 of the Migration Act 1958.” It is convenient to consider the claimed breach of s.426 first.

Section 426

1. Section 426 of the Migration Act is as follows:

   (1)     In the notice under section 425A, the Tribunal must notify the applicant:

   (a)     that he or she is invited to appear before the Tribunal to give evidence; and

   (b)     of the effect of subsection (2) of this section.

   (2)     The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

   (3)     If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

2. The particulars to this ground are that the Tribunal did not comply with s.426(1)(b) of the Act as the requisite s.425A notice did not notify the applicant of the effect of s.426(2). It was contended that the invitation letter to the Tribunal hearing dated 28 August 2003 did not notify the applicant of the fact that he may within seven days after being notified of the invitation, give the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from a person or persons named in the notice. The applicant contended that the statement in the hearing invitation letter asking the applicant to “answer all the other questions on the [response to hearing invitation] form and return the completed form and any new documents or written arguments by 15 September 2003” was not sufficient to meet the mandatory requirements of s.426(1)(b) and that (consistent with what was said to have been the approach taken by Scarlett FM in SZMQE vMinister for Immigration & Anor [2008] FMCA 1474 at [35]) this failure constituted jurisdictional error and that there was no discretionary reason why relief should not be granted.

3. The first respondent tendered a copy of a document entitled “Registered Post Records” from the Refugee Review Tribunal dated 28 August 2003 stamped with an “Australia Post Mail Room” stamp dated 29 August 2003, bearing registered post numbers corresponding to those appearing on the copy letter dated 28 August 2003 contained in the Court Book and indicating that copies of that letter were sent to the addresses of the applicant care of Mr Eyeson-Annan, to Mr Eyeson-Annan and to the applicant at the home address nominated in the review application consistent with the information on the copy letter in the Court Book. It was not disputed that the three hearing invitation letters were posted no later than 29 August 2003. On that basis it was not disputed that the hearing invitation letter was dispatched within three working days of the date it bore consistent with s.441A(4)(a) of the Act.

4. It was contended however that the hearing invitation letter did not adequately address the applicant’s right to ask the Tribunal to take oral evidence from any witnesses.  The letter included the following:

   Hearing of the Tribunal 

   We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.  You can also ask the Tribunal to obtain oral evidence from another person or persons.  (Emphasis added). 

5. The letter also advised the applicant to:

   Please read and complete the enclosed form carefully and:

   …

   ·    complete the “Witnesses” part of the form if you want the Tribunal to get oral evidence from another person; please note the Tribunal does not have to get evidence from any person you name

   …

   ·     answer all the other questions on the form and return the completed form and any new documents or written arguments by 15 September 2003.

6. The response to hearing invitation form attached to the invitation relevantly provided at question 2c “Do you want the Tribunal to take oral evidence from any witnesses?  If yes, you must fill in the details on the back of this form” and contained boxes marked “Yes” and “No” for completion.  According to the affidavit of Emily Baggett affirmed on 23 February 2009, the form used by the Tribunal at the time of the letter of 28 August 2003 included on the back of the form the following:

   WITNESSES

   If you want the Tribunal to take evidence from a witness or witnesses, please give their names, and brief details of what evidence you expect each witness to give at the hearing.  The Tribunal will consider your wishes but it does not have to take evidence from any witness you name.  A witness should give evidence to help show why you are a refugee and need a protection visa.   

7. Insofar as it was intended to be contended that the hearing invitation had to state expressly that pursuant to s.426(2) of the Migration Act the applicant had seven days after notification to give to the Tribunal written notice that he wanted it to obtain oral evidence from certain persons, such a contention was considered by the Full Court of the Federal Court in SZICU v Minister for Immigration and Citizenship and Another (2008) 100 ALD 1. In that case it had been submitted that the notification that the appellant could ask the Tribunal to obtain oral evidence from another person or persons “was not sufficient” and that the attached response to hearing invitation form “did not make it clear that failure to respond within the 7 days would mean that the appellant would no longer be able to request the tribunal to obtain oral evidence from a person specified”.  This argument was maintained notwithstanding that the notice of invitation expressly stated (as does the notice in this case) that the appellant should “return the completed form and any new documents or written arguments by” a specified date.  

8. The Full Court referred to the fact that Nicholls FM had considered that such a letter met s.426(1) by notifying the appellant “in substance of the effect of s 426(2) because it informed the appellant not only of the means by which he should state his desire that the tribunal obtain evidence from another person, but also of the statutory 7- day period to reply” (at [12]). 

9. After referring to SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 724 in relation to what amounted to a notification of the “effect” of a provision (at [13]), the Full Court in SZICU rejected the appellant’s contention that the notice had to expressly inform him he that had seven days after notification to request the Tribunal to obtain oral evidence from a person specified.  It found that the notice of invitation to appear together with the attached response to hearing invitation form “made it quite clear that both the completed form and any new documents or written arguments had to be returned to the tribunal by 11 November 2005” (at [16]) which was seven days after the date on which the notice of invitation to appear was sent. 

10. It was said to be important (for the “purposes of making the effect of s 426(2) clear to the appellant”), that the notice of invitation to appear “expressly stated that it was necessary to complete the section of the attached form dealing with witnesses if the appellant wanted the tribunal to obtain evidence from another person, and that the tribunal was not required to obtain that evidence” (at [16]).  In those circumstances the Full Court of the Federal Court was “satisfied that the effect of s 426(2) of the Act was conveyed to the appellant” and that there was “nothing in the notice of invitation or the “Response to Hearing Invitation” form which might create any real possibility of confusion” (at [17]). 

11. Similarly, in this case (subject to consideration of the date by which notice had to be given to the Tribunal) the combined effect of the notice and the response form is such that the Tribunal met its obligation to notify the applicant that he may give the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from a person or persons.  The notice of invitation expressly stated that it was necessary to complete the “Witnesses” part of the form if the applicant wanted the Tribunal to get oral evidence from another person and that the Tribunal did not have to get that evidence from any person named (see SZICU at [16]). It was not necessary for the letter to state expressly that the applicant may “within 7 days after being notified” give the Tribunal notice, given that what is required under s.426(1)(b) is that the notice under s.425A notify the applicant of the “effect” of s.426(2) of the Act.

12. The hearing invitation letter (read in conjunction with the response to hearing invitation) sufficiently notified the applicant that he may give the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from a person or persons. It was not necessary for the notification to use the same language as s.426(2) of the Act.

13. However, the applicant contended that insofar as the letter required him to return the completed response to hearing invitation form “by 15 September 2003” it incorrectly stated the effect of sub-s.426(2) of the Act because it miscalculated the date by which the applicant may give written notice under s.426(2) of the Act.

14. It was acknowledged that the period of seven working days after notification would (having regard to the deeming provisions in s.441C(4) of the Act) have expired on 15 September 2003, but submitted that because the letter stated “by” 15 September 2003 it did not correctly stipulate that a response on 15 September 2003 would be within the period provided for in s.426(2).

15. As counsel for the first respondent pointed out, while the issue of the meaning of the word “by” was not directly in issue in SZICU, it is clear that the Full Court of the Federal Court was of the view that a form that used such an expression could meet the requirement of informing the appellant of the “statutory seven day period to reply” (SZICU at [12]).

16. The only issue is whether the reference to “by 15 September 2003” advised the applicant that he had seven days to notify the Tribunal after being notified or incorrectly advised that he had to notify the Tribunal no later than 14 September 2003 (that is before 15 September 2003). Under s.441G of the Act the applicant would be taken to have received a document dispatched by prepaid post in accordance with s.441A(4)(a) seven working days after the date of the document. The seven day period would run from the date of deemed notification. The parties accepted that in this case the seven day period would have expired at close of business on 15 September 2003.

17. Having regard to the ordinary meaning of “by” and the requirements of the Migration Act I am not persuaded that the expression “by 15 September 2003” in the hearing invitation letter meant before and not including 15 September 2003.  I note in particular that one of the meanings of “by” in the Shorter Oxford English Dictionary is “[o]n or before, not later than”.  It is apparent in the context of the letter of invitation that the applicant was notified that he must answer the questions and return the completed form and other material on or before 15 September 2003.  On that basis it complied with the obligation to advise the applicant of the effect of the statutory period for notice. 

18. Insofar as the applicant relied on the decision in SZMQE, in that case the hearing invitation letter required the applicant to complete an enclosed response to hearing invitation form and return it to the Tribunal within 21 days of the date of the letter. While it also advised him that if he wanted the Tribunal to take oral evidence from another person he should complete the witness details on the enclosed form, the hearing invitation letter did not require return of the completed form by a specified date. It was in that context that Scarlett FM found that there was a jurisdictional error in circumstances where the applicant had submitted that a failure to refer to the seven day time limit was a failure to comply with s.426(1)(b) of the Act. However in this case, and having regard to SZICU, I am satisfied that by reference to the date of 15 September 2003 the Tribunal informed the applicant of the effect of the seven day time limit in s.426(2) of the Act, hence meeting its obligation under s.426(1)(b) of the Act.

19. It has not been established that there was a failure to comply with s.426 of the Act in the manner contended for by the applicant. Ground one is not made out.

20. Neither of grounds two or three in the final amended application were pressed. 

Third party fraud

1. The main ground relied on in these proceedings as it appears in the final amended application is that “[t]he Tribunal constructively failed to exercise its jurisdiction as a result of third party fraud by the Applicant’s migration agent and or Ms Hong, a person associated with the Applicant’s migration agent”.

2. The particulars to this ground are now as follows:

   A.Mr Eyeson-Annan was recklessly indifferent to the truth of whether the Applicant declined to attend the hearing before the Tribunal, such that there was third party fraud on the Tribunal, by:

   (i)     relying on an oral communication to him from Ms Hong that the Applicant did not wish to attend the hearing, when she was not a NAATI accredited translator or interpreter for Korean to English, and when he had received the hearing form signed in blank by the Applicant;

   (ii)     and by then having the hearing form completed and then faxing it to the Tribunal declining the hearing invitation

   when the Applicant did not decline the hearing invitation.

   B.Ms Hong was recklessly indifferent to the truth of whether the Applicant declined to attend the hearing before the Tribunal, such that there was third party fraud on the Tribunal, by:

   (i)     communicating to Mr Eyeson-Annan that the Applicant did not wish to attend the hearing, when the Applicant did not decline the hearing invitation. 

1. There was a considerable amount of evidence before the Court in relation to this ground.  The hearing had to be adjourned on a number of occasions to enable witnesses to give evidence and to be cross-examined.  The applicant, Mr Eyeson-Annan and Ms Hong gave evidence.  They were each given the opportunity (which they took) to file written submissions. 

2. The applicant contended that the decision of the Tribunal was vitiated by third party fraud in the sense considered by the High Court in SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189. The manner in which this allegation was particularised underwent some change in the course of the proceedings. The essence of the particulars is that each of Mr Eyeson-Annan and Ms Hong was recklessly indifferent to the truth of whether the applicant declined to attend the hearing before the Tribunal.

3. It was contended that Mr Eyeson-Annan was recklessly indifferent in this case by relying on an oral communication to him from Ms Hong that the applicant did not wish to attend the hearing, although she was not a NAATI accredited translator or interpreter for Korean to English and by having the hearing form, that he had received signed in blank by the applicant, completed and faxed to the Tribunal declining the hearing invitation when the applicant did not decline the hearing invitation.  In the case of Ms Hong, it was contended that she was recklessly indifferent by communicating to Mr Eyeson-Annan that the applicant did not wish to attend the hearing, when the applicant did not decline the hearing invitation. 

The evidence

1. Ms Hong is not a migration agent.  She attends a church in Greenacre which the applicant attended.  The applicant was introduced to her by a friend who was also a member of the church.  Ms Hong volunteered her assistance to the applicant in connection with his visa application.  She was not paid or provided with any other form of consideration by the applicant for her services. 

2. Ms Hong, who speaks Korean and English, became acquainted with Mr Eyeson-Annan (who at that time was a barrister and migration agent) by reason of the fact that he was a patient of her husband who she described as an “oriental doctor”.  On occasion she assisted Korean-speaking visa applicants for whom Mr Eyeson-Annan acted.  Ms Hong’s evidence was that she had only ever introduced three people to Mr Eyeson-Annan and that she helped and provided interpretation services on a voluntary basis.  Ms Hong was not paid or provided with any other form of consideration for her services by Mr Eyeson-Annan, aside from going to dinner with him twice. 

3. Ms Hong introduced the applicant to Mr Eyeson-Annan at her home on or about 23 April 2003.  The applicant paid Mr Eyeson-Annan $6,000 to act as his agent for the purpose of obtaining a visa.  Mr Eyeson-Annan completed a protection visa application on behalf of the applicant that the applicant signed.  This much is not in dispute. 

4. The applicant’s evidence in his affidavit of 21 April 2008 is that Ms Hong was the interpreter on the day he met Mr Eyeson-Annan and that she interpreted what Mr Eyeson-Annan said.  The applicant claimed that he was asked a lot of questions about his family and background and told to sign the boxes marked X on what he claimed he “now know[s]” to be a protection visa application form and associated documents.  He claimed he did not ask Mr Eyeson-Annan or Ms Hong about what he was signing.  In cross-examination he conceded that Mr Eyeson-Annan told him the paperwork was to do with his visa application and that apart from what he described as exaggerations, the protection visa application accurately reflected his claims. 

5. Ms Hong’s evidence was that she explained the protection visa application form to the applicant and he signed the forms.  She denied that she asked the applicant not to say too much or not to ask too many questions of Mr Eyeson-Annan as he claimed. 

6. On 7 May 2003 Mr Eyeson-Annan lodged the application for a protection visa on behalf of the applicant.  The application was refused on 22 May 2003. 

7. The applicant claimed that he never received the Departmental decision refusing his protection visa application although, according to the Court Book, a copy of that decision was sent to him at his home address.  The applicant’s evidence is that he “was not told [his] Protection visa application had been refused or that [he] was appealing the decision”.  However he also said that he did not ask Mr Eyeson-Annan about the result.  Notwithstanding this, on 4 June 2003 he went to Ms Hong’s house and was told to sign a form which he claims he now knows to be a Refugee Review Tribunal application for review.  His evidence is that Mr Eyeson-Annan was not present on that occasion, that he was shown a page of the form and that Ms Hong told him to sign next to a cross, which he did.  The applicant provided no explanation for why he signed this form if he did not know what it was.  He claimed he did not ask Ms Hong what he was signing on this occasion. 

8. Ms Hong also recalled meeting with the applicant on or about 4 June 2003 and that she had him sign the Tribunal review application form she had received from Mr Eyeson-Annan.  She claimed that the applicant asked her about the review application form, that she explained it to him and that he signed it. 

9. The Tribunal wrote to the applicant on 28 August 2003 care of Mr Eyeson-Annan.  It sent copies of the same letter to Mr Eyeson-Annan and separately to the applicant at the home address provided in his application for review.  That letter invited the applicant to attend a Tribunal hearing on 11 November 2003 and informed him that if he did “not attend the hearing and the Tribunal [did] not postpone the hearing, it [could] make a decision on [his] case without further notice”.  As indicated above, the Tribunal registered post records in relation to the three copies of this letter are stamped by the Australia Post mail room “29 August 2003”.  It is not disputed that both the applicant and his agent were sent the invitation to hearing at the addresses nominated in the application for review.  The applicant did not notify Mr Eyeson-Annan or the Tribunal of any change of address from that stated on his application for review.  There was no suggestion that this was not his correct address. 

10. The applicant did not attend the Tribunal hearing on 11 November 2003.  In its reasons for decision the Tribunal recorded that on 8 September 2003 the applicant had advised the Tribunal in writing that he did not wish to give oral evidence and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.  Hence the matter was determined on the evidence available to the Tribunal.

11. The Tribunal reference to advice from the applicant in writing is clearly a reference to the completed response to hearing invitation form bearing details of the applicant and of Mr Eyeson-Annan as his authorised recipient, signed by the applicant and dated 8 September 2003.

12. At issue in this case are the circumstances in which the applicant signed the response to hearing invitation form and what occurred thereafter.  It is not in dispute that the applicant signed the response to hearing invitation form before Ms Hong at her home in September 2003.  Mr Eyeson-Annan was not present.  The applicant contended that he did not know that he had been invited to attend a Tribunal hearing or that he was declining the invitation when he signed the response to hearing invitation form.  Mr Eyeson-Annan and Ms Hong say that he did know.  The applicant claimed that he was not told that what he was signing was the response to hearing invitation form and that he was giving up his right to attend the hearing before the Tribunal.  However in cross-examination he conceded that he could not recall the conversation that he had with Ms Hong when he signed the invitation to hearing response form.  He could not recall whether the relevant box was crossed when he signed the form.  He could not recall seeing any handwriting on the hearing form when he signed it.  The applicant also said that he did not write the date on the invitation to hearing response form. 

13. While the applicant claimed that he did not remember anything being mentioned by Ms Hong about whether to attend the Tribunal hearing or not, he also claimed that if it had been explained properly that he could attend the hearing he would have gone and that if Ms Hong had said he did not need to attend the hearing he would probably have asked why he should not go. 

14. The applicant’s evidence was that he did not ask Ms Hong about what he was signing.  He claimed that there was no conversation regarding the particular purpose of the form, no questions and no explanation.  He did not remember whether he crossed the box marked “NO, I/we do not want to come to a hearing” on the hearing response form and, while conceding that if he was asked to cross the box he might have done so and if asked to sign he might have signed it, claimed that if he had known what the document meant he would not have crossed this section.  He conceded that it was possible that either he, Ms Hong or Mr Eyeson-Annan crossed the box marked “NO”.  In essence, the applicant’s testimony was that he could not recall what was discussed at the meeting with Ms Hong in September 2003 when he signed the response to hearing invitation form. 

15. Counsel for the first respondent put to the applicant that it was “implausible” that he had “signed three very important forms” (the protection visa application in relation to his fears of persecution at the hands of the Korean police, the application for review and the response to hearing invitation form) “without being told what the forms [were] and without asking any questions about what the forms [were]” and that his evidence in relation to the meetings at which those forms were signed was implausible.  The applicant’s response was:

    The reason I have signed all these documents was because I understood the application for certain type of visa was required for me to stay.  I did not know whether that had to be a protection visa or any other.  If I had understood or known that I have to attend a hearing why would I sign this paper that I don’t want to attend a hearing?

16. Mr Eyeson-Annan’s evidence was that Ms Hong referred the applicant to him, that Ms Hong was not his employee and that he did not have any contractual arrangement with her or pay her, although he took her to dinner on two or three occasions.  He used her as an interpreter and a conduit for information.  He viewed Ms Hong as providing a sort of community service to the Korean community based on her involvement in the church and her husband’s role as a pastor.  He agreed that he made no attempt to tell the applicant that she was not his agent or acting as his agent. 

17. Mr Eyeson-Annan claimed that he did not place the cross in the box beside the words, “NO, I/we do not want to attend the hearing” on the hearing response form.  He claimed that Ms Hong told him that the applicant did not want to attend a Tribunal hearing and that while he remembered such a conversation, he could not remember whether he collected the completed form from Ms Hong or it was faxed to him. 

18. Mr Eyeson-Annan’s initial evidence in relation to completion of the details on the form was that he was certain it was not returned to him in blank.  It emerged in cross-examination that Mr Eyeson-Annan was not clear whether he had received the original form or, as he later conceded, a facsimile copy of the form signed by the applicant.  His belief was that the form was partially completed containing the applicant’s name and he conceded that it was possible that his staff members completed the form and faxed it to the Tribunal although initially, he had not accepted that the “NO” box may have been marked with a cross after the form was returned to his office. 

19. Ms Hong’s evidence, when asked about the nature of the conversation she had with the applicant in September 2003 in relation to the hearing response form, was that she asked him if he would like to go to the Tribunal hearing and that he “say he doesn’t want – he doesn’t go (sic)”.  She claimed that she explained the nature of the document to the applicant and that he signed it in front of her.  When asked whether the applicant gave any explanation as to why he did not want to go to the hearing, Ms Hong claimed that he told her that he could not go because he went to work. 

20. Ms Hong also said that she did not cross the box marked “NO” and did not know who did so, but that she told Mr Eyeson-Annan that the applicant did not want to go to the hearing.  Ms Hong said that she inserted the name of the applicant on the response to hearing invitation form.  She conceded in cross-examination that she could not remember whether she put the applicant’s name on the form before or after he signed it.  When Mr Eyeson-Annan’s evidence was put to Ms Hong and she was shown the response to hearing invitation form in Mr Eyeson-Annan’s file for the applicant (which is a copy of a form containing what is conceded to be a photocopy of the applicant’s signature but what may be original details in other respects) she claimed that the applicant signed it, that she gave it to Mr Eyeson-Annan, that he asked her why she had not put the applicant’s name on the top and that she then did so.  

21. In essence, while the applicant claimed that he did not know he had signed a response to hearing invitation form declining to attend the hearing before the Tribunal, Mr Eyeson-Annan and Ms Hong disagreed. 

Submissions

1. The solicitor for the applicant submitted that the evidence of the applicant that he was not informed that he was signing a form declining to attend a hearing before the Tribunal should be preferred to that of Mr Eyeson-Annan and Ms Hong.  Reference was made to the fact that initially Mr Eyeson-Annan and Ms Hong had given evidence that the form was not signed in blank and that it was only after they were confronted with the original hearing form faxed to the Tribunal that they changed their evidence to try to give a more plausible explanation.  It was submitted that it was apparent that the only way the form could have been completed was that it was first signed, then copied (whether by photocopy or facsimile transmission) and then completed in ink.  Counsel for the first respondent conceded that the applicant’s signature on the form in Mr Eyeson-Annan’s file was a copy but not that the other handwriting was entirely original (as distinct, for example, from writing over the top of photocopied writing).  

2. The applicant also pointed out that the final accounts offered by each of Mr Eyeson-Annan and Ms Hong had in common a concession that the cross placed in the box declining the hearing was placed on the form after the form was signed and was not placed there by the applicant and that Ms Hong’s eventual evidence was that the applicant’s name was inserted on the invitation to hearing response form after he signed it.

3. Moreover, Ms Hong’s evidence was that the application for review form was signed by the applicant when only his name was on the form.  The fact that the forms were signed “in blank” was said to support the applicant’s claim that he did not know that he was signing a review application form and that the claims that were put in later by Mr Eyeson-Annan were not based on his instructions (other than the original instructions that Mr Eyeson-Annan had gleaned from the file).

4. Reference was also made to Mr Eyeson-Annan’s evidence that he had a practice of using students as his staff and friends of the community who were not qualified interpreters as interpreters and to the fact that Mr Eyeson-Annan did not discuss the hearing response form with the applicant and, even after it was signed in blank, did not contact him to seek instructions.  It was submitted that the Court could be satisfied that Mr Eyeson-Annan or a staff member crossed the box marked “NO”.  The applicant submitted that the role of Ms Hong was material to the allegation of third party fraud as she was not an accredited interpreter or translator but was used by Mr Eyeson-Annan for all dealings with the applicant. 

5. In light of the serious allegations made in relation to Mr Eyeson-Annan and Ms Hong, the parties agreed that it was appropriate to give them an opportunity to make submissions should they wish to do so.  Each of Mr Eyeson-Annan and Ms Hong made post-hearing written submissions.  

6. Mr Eyeson-Annan agreed with the submissions of counsel for the first respondent discussed below, while reiterating that he had communicated with the applicant through Ms Hong about the protection visa application and review application and that he was informed by Ms Hong that the applicant did not want to attend a hearing.  He submitted that he was neither fraudulent nor recklessly indifferent during any stage of the applicant’s application or thereafter, including in finalisation of the Ministerial request and in ensuring that the applicant was the holder of a visa that was lawful.  He also submitted that there was no reason for him to act fraudulently or recklessly in relation to the applicant’s case.  Mr Eyeson-Annan pointed out that even if the applicant said he did not see any handwriting on the invitation to hearing response form, that did not mean that he did not know that it was a invitation to hearing response form.

7. The solicitor for the applicant suggested that it was telling that Mr Eyeson-Annan had not addressed his evidence at the hearing in relation to whether the invitation to hearing response form was signed in blank and pointed out that Mr Eyeson-Annan did not claim he had contacted the applicant after he received the invitation to hearing response form signed in blank, either directly or through Ms Hong.  It was contended that instead of accepting the word of an unqualified interpreter that the applicant did not wish to attend the hearing, Mr Eyeson-Annan should have contacted the applicant to find out if he was aware of what he had signed and to get instructions on how the form was to be completed.  It was said to be significant that Mr Eyeson-Annan was a barrister of many years standing who would know that such a simple and important measure needed to be taken. 

8. The applicant submitted that in having the form completed in part by Ms Hong, and in part under his authority in the absence of the applicant and without him being notified that this was being done and sending it to the Tribunal without further checking with the applicant to obtain instructions to lodge it, “Mr Eyeson-Annan was recklessly indifferent to the truth of whether the Applicant knew that he had been invited to attend a hearing and whether the Applicant wanted to decline to attend the hearing”, and that this “reckless indifference constituted third party fraud on the Tribunal”. 

9. In submissions Ms Hong reiterated her claim that she had informed the applicant that the form was a response to hearing invitation form and an invitation to attend the hearing, that he had said he would not attend because he was working and that he was aware that the form would be sent to the Tribunal after he signed it.  She claimed that her conduct did not constitute fraud because the applicant knew that he had been invited to a hearing and that he was declining the invitation.

10. The solicitor for the applicant again submitted that it was relevant that Ms Hong did not address the fact that the hearing form was signed in blank, or deal with her inconsistent evidence at the hearing as to whether or not it was signed in blank, despite the opportunity to do so, and observed that she did not state that the applicant told her to complete the form after it was signed in blank or tell Mr Eyeson-Annan to complete the form after it was signed in blank.  Nor did she claim that she contacted the applicant after the form was signed in blank to see if he wanted the form completed or lodged such that the hearing invitation would be declined.

1. It was submitted that the applicant’s evidence, including that he did not know what he was signing and did not decline to attend the hearing, should be preferred over Ms Hong’s evidence, given her changing evidence at the hearing in relation to the signing and completion of the form as she realised her initial version of events could not have occurred and given that she had failed to address those deficiencies in her submission and failed to contact the applicant after the form was signed.  The applicant contended that the Court should find that Ms Hong was therefore recklessly indifferent to the truth by communicating to Mr Eyeson-Annan that the applicant declined to attend the hearing and that such reckless indifference constituted third party fraud on the Tribunal.

2. In essence, counsel for the first respondent contended that the applicant’s claims not to have known what he was signing and to have been unaware of the progress of his applications were implausible, that Mr Eyeson-Annan and Ms Hong appeared to have attempted to properly represent his claims and that there was no basis for an inference to be drawn as to a motivation on their part to fail to inform the applicant of his right to attend a Tribunal hearing.  The first respondent contended that their evidence should be preferred to that of the applicant (who could not recall the purport of discussions with Ms Hong) and that, as it had not been established that the applicant did not decline the hearing invitation, this ground was not made out.  It was submitted that the issue of who inserted the cross in the box marked “NO” on the response to hearing invitation form was a peripheral issue as it reflected the applicant’s expressed intention and there was no deception, fraudulent or otherwise.

Resolution

1. In SZFDE the High Court accepted that a third party’s fraudulent dealings may have the effect of stultifying the operation of the legislative scheme in Division 4 of Part 7 of the Migration Act to afford natural justice to a protection visa applicant. In that case a third party had falsely represented himself to be a solicitor and registered migration agent (see SZFDE at [4] and [7]).  He advised protection visa applicants not to appear at a Tribunal hearing of their review application because the Tribunal was “not accepting any visa applications at all at the moment”.  The appellants in SZFDE had acted on this advice and the Tribunal affirmed the decision not to grant them visas.  The High Court concluded that the inference was open that the agent’s motivation was self protection (lest his apparently unlawful conduct in contravention of s.281 of the Act be revealed at a hearing) (SZFDE at [45]).

2. Finkelstein J pointed out in SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 at [33] that there are many ways in which fraud may be manifested. His Honour continued (at [33] – [35]):

   In my opinion there can be little doubt that, if the appellant’s claims be accepted, the migration agent was fraudulent in the relevant sense in his dealings with the appellant.  The principal allegations are that his agent: falsely indicated in the response to hearing form that the appellant would attend the hearing when the agent knew that could not occur; and signed documents on the appellant’s behalf without his knowledge, consent or authority and then forged his signature.

   As to false information, it will be fraudulent if it is made by a person who does not believe in its truth or is recklessly indifferent to its truth: Commercial Banking Company of Sydney Ltd v R H Brown & Co [1972] HCA 24; (1972) 126 CLR 337, 343. If the appellant’s evidence is accepted, the only findings that are open are that the agent was deliberately fraudulent or, at the least, recklessly indifferent as to what he told the tribunal. The agent’s conduct is particularly grievous because it is likely he knew that the appellant’s non-attendance would be fatal to his application.

   As to the forged signatures, it is not unusual for courts to treat a forgery as a fraud.  In this case the appellant says the agent’s dishonesty denied the appellant the opportunity to appear at the hearing.  It also conveyed to the tribunal the impression that the appellant was unwilling to attend, a fact upon which the tribunal placed great significance. 

3. However as the Full Court of the Federal Court stated in Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501 at [32] – [33] :

   We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence.  Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent’s acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest.  Nor do we consider that any particular such act or omission which directly effects the tribunal’s discharge of its imperative statutory functions in a manner which is adverse to a person seeking review can in turn be characterised as a “fraud on the tribunal”.

   The parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents.  It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent.  Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Pt 7 functions. SZFDE is testament to this.  But SZFDE requires that the agent in question is fraudulent in a way that effects the tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal.

4. The High Court stated in SZFDE at [53] that:

   … that there are sound reasons of policy why a person whose conduct before an administrative tribunal had been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. 

5. Thus, as discussed in SZHVM v Minister for Immigration and Citizenship and Another (2008) 170 FCR 211 at [53]:

   … even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal’s statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal.

6. The applicant in this case alleged that both Ms Hong and Mr Eyeson-Annan acted in a manner that was recklessly indifferent to the truth of whether the applicant declined to attend the hearing in the sense considered in SZIVK at [34]. It was contended that as a result of the conduct of Mr Eyeson-Annan and/or Ms Hong, the Tribunal proceeded to make a decision on the papers when the applicant would otherwise have attended a hearing had he known that there was an application for review before the Tribunal and had he known that he had been invited to attend the hearing and that as a result of such fraud there was a stultification of the Tribunal process and the Tribunal failed to exercise its jurisdiction.

7. I have borne in mind the level of satisfaction required in relation to a claim based on third party fraud (see Briginshaw v Briginshaw and Another (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171, SZLIX at [33] and s.140(2) of the Evidence Act 1995 (Cth)).

8. As indicated above, it is not in dispute that the applicant paid Mr Eyeson-Annan $6,000 to act as his agent for the purpose of obtaining a visa.  He was assisted by Ms Hong, a community friend from a church in Greenacre that he attended, having been introduced to Ms Hong by a friend who was also a member of the church.  Ms Hong volunteered her assistance to the applicant and was not otherwise paid or provided with any other form of consideration for those services by the applicant.  She had become acquainted with Mr Eyeson-Annan by reason of the fact that Mr Eyeson-Annan was a patient of her husband.  She was not remunerated for her services, apart from being taken to dinner twice by Mr Eyeson-Annan. 

9. I am satisfied that the applicant signed his application for a protection visa and his application for review before Ms Hong.  Both the application for a protection visa and the application for review were lodged with the Department and Tribunal respectively by Mr Eyeson-Annan.  They accurately reflected the applicant’s refugee claims, save for a degree of exaggeration of his claims in his application for a protection visa.  Both the applicant and Mr Eyeson-Annan as his agent were sent a copy of the Tribunal’s invitation to hearing letter at the addresses nominated in the applicant’s application for review.

10. Critically, it is not in dispute that the applicant signed the response to hearing invitation before Ms Hong or that Mr Eyeson-Annan was not present at that time.

11. It is necessary to consider whether I am satisfied that the applicant did not decline to attend the Tribunal hearing.  The applicant alleged that he was not advised at any point during his application for a visa or application for review (including at the time he signed the response to hearing invitation) as to the progress of his application or the purport of what he signed. 

12. However, while he claimed that he did not ask Ms Hong about what he was signing, that there was no conversation regarding the purpose of the hearing response form and no explanation, he conceded that he could not recall the conversation that he had with Ms Hong when he signed this form.  Indeed in cross-examination he conceded that he could not remember what he signed.  While he claimed that he did not ask any questions of Mr Eyeson-Annan or Ms Hong in relation to his application for a protection visa, his application for review or the response to hearing invitation, he could not recall the reason for the various meetings he had with Ms Hong at her residence.  In particular he could not recall what was discussed at the meetings in June and September 2003, when he signed the application for review and the response to hearing invitation form. 

13. I am not satisfied that the applicant did not know that he had been invited to attend a Tribunal hearing or that he did not decline the invitation.  As counsel for the first respondent submitted, the applicant’s claims not to have known what he was signing and to have been unaware of the progress of his protection visa application and the review application are implausible for a number of reasons.  Counsel for the first respondent submitted that it was inherently implausible that an asylum-seeker who claimed to hold a fear of serious harm constituting persecution would show no interest in and make no inquiry with respect to the progress of his claim for asylum.  Whatever the motivation or genuineness of the applicant in making a protection visa application (not a matter that requires determination in these proceedings), of more significance is the fact that the applicant has not provided any explanation for why he would sign documents presented to him by Ms Hong, a community volunteer assisting him in relation to his visa application, without any queries or discussion about their nature (apart from indicating a concern about whether he was able to work in Australia).  Also of concern in relation to the credit of the applicant is the fact that while he claims to have a clear recollection as to what he was not told by Mr Eyeson-Annan and/or Ms Hong, he has little or no recollection as to the purport of any of the discussions that he had with Mr Eyeson-Annan and/or Ms Hong. 

14. Moreover, the applicant’s claim that he was not advised as to what he was signing conflicted with the accounts of both Mr Eyeson-Annan and Ms Hong, both of whom were broadly consistent in relation to what occurred in relation to the critical aspects of the applicant’s response to the hearing invitation, notwithstanding some initial (and understandable given the time that had passed) confusion as to the sequence of events.  I am not satisfied that Ms Hong’s inability after some five years to recall the sequence of events or the possibility that the response to hearing invitation form was signed in black means that her evidence in relation to the separate issue of what she told the applicant and what he told her about attendance at the Tribunal hearing should not be accepted.  It is not in dispute that she told Mr Eyeson-Annan that the applicant did not wish to attend the hearing.  

15. Ms Hong’s testimony as to her recollection of the sequence of events surrounding the completion of the response to hearing invitation form, was challenged by the solicitor for the applicant as a fabrication,  before she was taken to the details of the document that had been before her in September 2003, some five years prior to her cross-examination.

16. Understandably, Ms Hong stated that she did not understand the sequence of the events revealed by the subpoenaed original response to hearing invitation form until this was explained.  She acknowledged that her recollection of the sequence of events some five years earlier was not perfect and subsequently agreed with the sequence of events asserted by the cross-examiner.  Her subsequent testimony as to the completion of the response to hearing invitation was consistent with the subpoenaed document, including the facsimile marks and the testimony of Mr Eyeson-Annan.  I accept it as an accurate account.  Ms Hong had no obvious or suggested motive for deception or indeed, reckless indifference to the truth of whether the applicant wished to attend the hearing.  She is a community volunteer who assisted persons claiming to be asylum seekers.  The cross-examination of Ms Hong revealed that her recollection of the precise sequence of events as to completion of the response to hearing invitation some five years earlier was not at the forefront of her mind when she was initially questioned as to a document she had not seen for five years.  However once prompted she recalled the relevant events in more clear terms than either the applicant or Mr Eyeson-Annan.  I accept that Mr Eyeson-Annan requested her to insert the applicant’s name on the top of the form the applicant had signed. 

17. Mr Eyeson-Annan’s testimony as to his recollection as to the circumstances of completion of the response to hearing invitation form in 2003 was also challenged as a fabrication.  However it is not in dispute that Ms Hong told him that the applicant did not wish to attend the Tribunal hearing.  He was not present at the meeting where the response to hearing invitation form was signed. 

18. The evidence of Ms Hong and Mr Eyeson-Annan supports the conclusion that the applicant was advised as to the purport of the hearing invitation, just as he had been advised about the purport of the forms he had previously signed and the application process generally.  Ms Hong’s evidence is that the applicant informed her that he did not wish to attend a Tribunal hearing because he was working.  He signed the response for hearing form before her.  She sent the signed response form to Mr Eyeson-Annan, albeit details on the form had not been completed.  She told Mr Eyeson-Annan that the applicant did not wish to attend the Tribunal hearing. 

19. The applicant in essence could not recall the discussion and said he did not ask what he was signing or why, but suggested that had he known about the Tribunal hearing he would have gone.  Ms Hong’s evidence was not only that the applicant told her that he did not wish to attend the Tribunal hearing but also that he provided an explanation that he had to work. 

20. As the applicant could not recall the purport of discussions with Ms Hong, Ms Hong’s testimony as to what the applicant told her remains uncontroverted.  Indeed, it was not put to Ms Hong that her testimony in that respect was fabricated.  I accept her testimony, not being satisfied that there is a basis for an inference to the contrary (see MWJ v The Queen (2005) 80 ALJR 329 at [38] – [39]). Where there is a difference between the evidence of the applicant and Ms Hong, I prefer that of Ms Hong.

21. None of the witnesses could readily recall who inserted the cross beside the “NO” box on the response to hearing invitation form.  The applicant conceded that it could have been inserted by Mr Eyeson-Annan, Ms Hong or by himself.  Both Mr Eyeson-Annan and Ms Hong conceded that it was possible not only that the form was signed without the details having been completed and that Ms Hong subsequently filled in the applicant’s name, but also that the remainder of the details may have been completed by Mr Eyeson-Annan’s staff. 

22. Mr Eyeson-Annan and Ms Hong appear to have made a conscientious attempt to properly represent the applicant’s claims (as confirmed in his oral evidence) in his application for a protection visa and application for review (save for certain exaggerations). Importantly, no motivation is apparent for why either of them would then seek to deceive or fail to inform the applicant of his right to attend the Tribunal hearing. Moreover, Mr Eyeson-Annan subsequently submitted an application to the Minister pursuant to s.417 of the Act on the applicant’s behalf. No basis has been established on the evidence before the Court for an inference to be drawn as to any motive for conscious and dishonest deception of the applicant on the part of Mr Eyeson-Annan or Ms Hong. Such a motive should not be inferred without good evidence.

23. The conduct of Ms Hong and Mr Eyeson-Annan in relation to the applicant is not consistent with any motive of dishonesty (see Briginshaw at 363, Neat at 449 – 450 and s.140(2) of the Evidence Act). Ms Hong volunteered her assistance to the applicant and other members of her church who sought asylum in Australia. Mr Eyeson-Annan in substance correctly documented the applicant’s claims and personal details and filled in the application for a protection visa and application for review with correct details for the applicant (albeit after the applicant signed the application) and also made a subsequent application to the Minister pursuant to s.417 of the Act, on behalf of the applicant. In contrast to the situation in SZIVK there is no suggestion that the applicant’s signature was forged.  Nor are these circumstances from which any motivation to occasion fraud on either the applicant or the Tribunal can be inferred (cf SZFDE).  This is not a case in which it is apparent that some fraud, default or other shortcoming on the part of either Mr Eyeson-Annan or Ms Hong would have been exposed had the applicant attended a Tribunal hearing. 

24. As indicated above, insofar as there is a conflict between the evidence of the applicant and Ms Hong in relation to whether the applicant declined the hearing invitation, I prefer the evidence of Ms Hong.  I accept the testimony of Ms Hong that the applicant told her that he did not wish to attend the Tribunal hearing.  Mr Eyeson-Annan’s evidence corroborates that of Ms Hong.  There is no basis for an inference to the contrary.  As I accept Ms Hong’s testimony as to the applicant’s refusal of the invitation, the issue as to who inserted the relevant cross in the response box is a peripheral issue that does not have to be determined.  Whoever inserted the cross, it reflected the applicant’s expressed intentions and it has not been established that there was any deception, fraudulent or otherwise. 

1. As it has not been established that the applicant did not decline the Tribunal hearing invitation, ground one cannot succeed, either in relation to the allegations about Ms Hong or Mr Eyeson-Annan. 

2. For the sake of completeness I note that even if I had accepted that the applicant did not decline the hearing invitation, it has not been established that the conduct of either Ms Hong or Mr Eyeson-Annan amounted to fraud in the sense considered in SZFDE.

3. In that respect it is important to note that the applicant did not claim that he had told Ms Hong that he wanted to attend the Tribunal hearing.  His evidence was that he could not recollect discussing the Tribunal hearing.  His claim was not that his expressed intention to attend the hearing was misrepresented by Ms Hong or that she gave him false information (for example that it was not necessary to attend a Tribunal hearing), but rather that he was not told about the hearing and so did not have the opportunity to attend.  His contention was that Ms Hong was recklessly indifferent to the truth of whether he declined to attend the hearing by communicating to Mr Eyeson-Annan that he did not wish to attend the hearing when he “did not decline” the hearing invitation. 

4. While Finkelstein J accepted in SZIVK that “false information” would be “fraudulent if it is made by a person who does not believe in its truth or [who] is recklessly indifferent to its truth” (at [34]) I am not satisfied that fraud in this sense could be inferred on the part of Ms Hong.  There is no suggestion that the applicant said he wanted to attend the hearing, so Ms Hong could not be said to have suppressed what was true or represented what was false (see Tapp v Lee (1803) 3 Bos & P 367 at 371). The applicant’s case at best was that Ms Hong did not know whether he wanted to attend the hearing. Mere negligence or a failure to inform is not necessarily sufficient to give rise to fraud on the Tribunal (SZLIX at [33]). It has not been established that Ms Hong gave false information to Mr Eyeson-Annan recklessly and indifferent as to whether it was true or false in such a manner as to constitute fraud on the applicant and the Tribunal. In the circumstances of this case no inference as to any motivation for fraud in relation to the applicant or the Tribunal can be drawn in relation to Ms Hong.

5. Given that it is not in dispute that Ms Hong told Mr Eyeson-Annan that the applicant did not wish to attend the Tribunal hearing, Mr Eyeson-Annan’s omission to make further inquiries of the applicant and his reliance on Ms Hong does not constitute third party fraud in the sense considered in SZFDE.  Such conduct can not be characterised as fraudulent or a fraudulent omission vis-à-vis the applicant (SZFDE at [51]). Even if it might not be best practice for a migration agent to rely on a third party in this way (whether an unaccredited interpreter or student staff member) this would not suffice. Indeed a migration agent who placed his own interests above those of a client would not necessarily engage in a fraud, even if his or her conduct breached the requirements of the Migration Act and Regulations (which is not suggested in this case) (see SZHVM at [54]). It has not been established that there was fraudulent conduct by Mr Eyeson-Annan vis-à-vis the applicant having the effect of stultifying the processes of the Tribunal or that he had any motivation of self-preservation or otherwise for fraud on the Tribunal.

6. This ground is not made out.  As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  17 September 2009