SZMKV v Minister for Immigration

[2008] FMCA 1378

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1378

MIGRATION – Review of decision of RRT – allegation of fraud on Tribunal because of actions of migration agent – evidence heard – whether inferences should be made – affect of statutory declarations.

Migration Act 1958, s.417

SZFDE v Ministerfor Immigration [2007] HCA 35
SZLHP v Minister for Immigration [2008] FCAFC 152
SZLIX v Minister for Immigration [2008] FCAFC 17
Kumari, Ex parte – Re Minister for Immigration & Ors S174/2000

Applicant: SZMKV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1584 of 2008

Judgment of: Raphael FM

Hearing date: 25 September 2008

Date of Last Submission: 25 September 2008

Delivered at: Sydney

Delivered on: 25 September 2008

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1584 of 2008

SZMKV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 24 July 1999. On 10 August 1999 an application for a protection visa was lodged on his behalf with the Department of Immigration & Multicultural Affairs. On 19 September 1999 a delegate of the Minister refused to grant a protection visa and on 13 October 1999 an application for review of that decision was lodged with the Tribunal on his behalf by an organisation purporting to be a migration agency. The Tribunal wrote to the applicant at the address contained in the application form on 25 January 2000 inviting him to a hearing on 28 February 2000. The applicant did not attend. On 21 March 2000 the Tribunal handed down its decision to affirm the delegate's decision not to grant a protection visa. The applicant did not apply for review of that decision from the Federal Court within the time limited for him to do so. Instead he approached another migration agent who made an application to the Minister under s.417 of the Migration Act 1958 (the “Act”).

2. On 27 June 2000 the Minister decided not to consider exercising his power in the case and the applicant was advised through his second migration agent of that fact on 6 July 2000 by letter.   The applicant then joined a class action known as the Kumari & Ors Class Action S174/2000. He ceased to be involved in that action on 23 March 2001. Nothing more was heard about the applicant until 2007 when it appears that he was arrested at his place of employment and placed into immigration detention in Villawood. Whilst in Villawood the applicant sought details of his migration experience through the Freedom of Information Act. He received copies of his application for a protection visa and the other papers relating to the application to the Tribunal which form the basis of the Court Book. Having received these papers the applicant applied on 19 June 2008 to this court seeking review of the Tribunal's decision. He stated in his grounds of application that:

   “The jurisdiction of the second respondent remains constructively unexercised due to  the third party fraud in the processing of my Protection Visa application.  The decision under review was therefore influenced by the fraud and contains a jurisdictional error.”

3. The application then continues with the applicant's story that is also contained in his affidavit.  In short, he says that he approached the first migration agent and gave him details of his persecution background in China.  He says that the agent then made the application for him but he did not sign it.  He did not know what was in it.  He was not advised about the progress of the application, of the application for review of the delegate's decision, of the invitation to attend a hearing or of the Tribunal's decision.  The affidavit continues to the effect that the applicant was told of the decision of the RRT later in May 2000 and that the first migration agent could do nothing more for him.  He then went to a second migration agent.  That migration agent told him that the only thing he could do was to make an application to the Minister and did so on his behalf.  The applicant says that he authorised this to be done, paid money for it, but did not see the letter, or rather, he told me in his evidence he saw the letter which was written in English and signed it but he did not ask for a translation.  The applicant confirmed that he had been told that the Minister had declined to exercise his statutory powers and that thereafter he joined the class action but he complains that the second migration agent put in a fabricated story to the Minister including a fabricated reason as to why he did not attend the Tribunal hearing. 

4. The ability of an applicant to argue that the actions of a migration agent can in certain circumstances constitute fraud on the Tribunal has been affirmed by the High Court of Australia in SZFDE v Ministerfor Immigration [2007] HCA 35 but what is now known, having fallen from the lips of the Full Bench of the Federal Court and other Justices of that court sitting on appeal from this court, is that the actions of the migration agent must be a true fraud. As the Full Bench, Branson, Lindgren and Graham JJ said in SZLHP v Minister for Immigration [2008] FCAFC 152 at [18]:

   “The appellant's circumstances are thus different from the circumstances considered by the High Court in SZFDE in at least one critical respect.  The appellants in SZFDE were not complicit in any attempt to deceive the Tribunal. Rather they were persuaded not to accept the invitation of the Tribunal to attend a hearing by the false advice of Mr Hussein that the Tribunal was not accepting any visa applications at that time.  This advice, the High Court inferred, was given fraudulently by Mr Hussain to conceal his own unlawful conduct …”

5. In order to ascertain whether the actions of the migration agent constituted a true fraud consistent with that considered by the High Court in SZFDE it was necessary to hear evidence from the applicant.  He confirmed to the court that his affidavit was true and correct and was then subjected to cross-examination by Mr Reilly.  At the end of Mr Reilly's cross-examination I asked the applicant a few questions and the applicant was then given an opportunity to clarify any of his answers.  The applicant confirmed to Mr Reilly that all of the personal information about himself contained in his PVA was correct.  He confirmed to Mr Reilly that his father's name and date of birth as contained in the statement written by the migration agent were also correct and he told Mr Reilly that the story of persecution was false.  The applicant said that in fact he was a Falun Gong practitioner who had sought asylum in Australia because of the persecution of that sect which commenced in July 1999.  

6. It seems to me unlikely, if not improbable, that a migration agent who, one month after a very public crackdown on a sect of people in China, is told by an applicant for a protection visa that he is a member of such sect, would ignore that statement in favour of falsely submitting to the Department a weak story about minor corruption by public officials that might have, at the worst, resulted in the applicant's loss of his employment.  I was therefore sceptical about the evidence being given by the applicant as to his involvement with the first migration agent, Mr Shi.

7. The applicant sought to bolster his complaints against Mr Shi by his statements that the documents that had been submitted to the Department and later to the Tribunal were, with the exception of one in which he had authorised Mr Shi to act for him, not signed by him.  I am prepared to accept that this is the case but the applicant did confirm in his evidence that he had authorised Mr Shi to act for him and I do not find anything fraudulent in the fact that Mr Shi had signed the document in Mandarin with the applicant's name.  It is not a practice I would recommend or condone but I do not think it amounts to a fraud upon the Tribunal because I am less than satisfied that the story contained in the written statement was a fabrication.

8. The applicant told how he had left the address which he had given to the agent and which was contained in all the documentation in September 1999.  He told the court that he had not advised his change of address to the Department and he had not advised it to Mr Shi who he said he had trouble communicating with, because Mr Shi had his telephone number but he did not have Mr Shi’s.  I am prepared to give the benefit of the doubt to the applicant on this point and accept that he did not know about the Tribunal hearing but this would not necessarily mean that the case fell into the fraud category.  As the Full Bench Campbell, Finn and Dowsett JJ said in SZLIX v Minister for Immigration [2008] FCAFC 17 at [33]:

   “… 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 discharge of its Pt.7 Div 4 functions.  SZFDE is testament to this.  But SZFDE requires that the agent in question is fraudulent in a way that affects 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 bear negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] 60 CLR 336 at 363 and 368 in cases where fraud have alleged, we do not consider that it was open to his Honour to infer fraud.”

   I have no intention of inferring fraud in this case.  There is a simple explanation for why the applicant was not informed of the date of the hearing and that is that he had not told his migration agent of his new address. 

9. The applicant's position is not assisted by what then occurred. He tells that he goes to another migration agent. That migration agent obtains his papers. It is not clear whether the papers are obtained from the applicant or from another source but I will assume for the purposes of these reasons that they were obtained from another source. The applicant tells the Court that he told this second migration agent, Mr Feng, that he was a Falun Gong practitioner. Mr Feng had in front of him the statement submitted to the delegate and to the Tribunal which made no reference to Falun Gong at all but only to the minor corruption incident that I have previously referred to. I asked the applicant whether he could explain to me why he believed that armed with the knowledge that he was a Falun Gong practitioner and that a completely false and contrary submission had been made to the Department and the Tribunal the second migration agent effectively repeated that submission in his letter to the Minister. The applicant was unable to provide me with any satisfactory explanation. In my view it is inherently improbable that the applicant told Mr Feng, the second migration agent, that he was a Falun Gong practitioner. In all likelihood he repeated the story that I believe he in fact gave to Mr Shi and that formed the basis of the letter to the Minister under s.417. I make no comment upon the applicant's complaint that Mr Feng's explanation of why he did not turn up to the Tribunal was false other than to say that this cannot in any event constitute a fraud on the Tribunal or affect this application because it was said in relation to a s.417 application that has not been judicially reviewed.

10. The applicant produced two statutory declarations to the court.  The first was from a Ms Thompson.  She is a member of “Balmain for Refugees”.  She met the applicant whilst visiting Villawood on behalf of that group.  She deposes to searches of databases to discover if Mr Shi or his company Southerngate was a registered migration agent but could not find a matching registration.  I am not satisfied that this evidence establishes the first migration agent was not registered in 1999, the relevant date, and it does not change my view about the applicant’s statements which I do not accept as true.

    The second document was deposed to by Mr Feng, the second migration agent.  It says at paragraph 4:

    “In translating the relevant documents for him, I had telephone conversations with him and I can confirm that Mr Zhang Ru Qing expressed to me again and again that it was a fact that if he now returned to China, he would be severely persecuted by the Chinese Communist Party Government because of his involvement in the Falun Gong activities.”

    The applicant seeks to infer that this confirms he told Mr Feng he was a Falun Gong practitioner in 1999/2000.  I do not agree the document can allow such an infererence.  I believe it refers only to the most recent conversation Mr Feng had with the applicant.  Mr Feng was not present in court to clarify the statement, he could have been subpoenaed by the applicant.  The document does not assist the applicant.

11. For the reasons given above I am not satisfied that the applicant was the victim of a fraud by a migration agent such as to bring him within the scope of SZFDE.  In those circumstances there cannot be any jurisdictional error on the part of the Tribunal as alleged in the application to this court.  No other jurisdictional error is alleged, therefore the application shall be dismissed.  I order the applicant to pay the first respondent’s costs assessed in the sum of $5,000.00

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: