SZMMF v Minister for Immigration
[2008] FMCA 1403
•30 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1403 |
| MIGRATION – RRT decision – applicant failed to attend hearing – fraud by agent not established – ten year delay in seeking judicial review – discretion to refuse relief – application dismissed. |
| Migration Act 1958 (Cth), s.476 |
| Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 SZHVM v Minister for Immigration & Citizenship [2008] FCA 600 SZLHP v Minister for Immigration & Citizenship [2008] FCAFC 152 |
| Applicant: | SZMMF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1708 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 30 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1708 of 2008
| SZMMF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in March 1996, and on 9 April 1996 he lodged an application for a protection visa. His application did not reveal any person assisting him, and attached no statement of factual assertions explaining why he claimed to fear to return to the People’s Republic of China. A letter from the Department of Immigration was sent on 23 April 1996 to the applicant’s residential address, requesting that he provide a statement of his claims, but this was never responded to.
A delegate of the Minister did not make a decision on the visa application until the following year, on 5 March 1997. The delegate then made the obvious decision that the applicant had made no Convention claims, and refused the application. The delegate’s decision was sent to the same residential address given by the applicant.
Within a short time, the applicant lodged an appeal to the Refugee Review Tribunal. This was made by a migration agent, Priscilla Yu. Attached to it was a document purporting to be signed by the applicant, in which he claimed to have a different identity to that shown in the original visa application and the passport upon which he had entered Australia. The statement claimed that the applicant had been conducting a restaurant in an area in China where thousands of soldiers were conducting military manoeuvres, and that their serious misconduct led to his restaurant being destroyed and closed down after the local people held protest activities in July 1995. His statement claimed that:
In the evening, when we were planning our activities for next day at my restaurant, the policemen and soldiers broke into the restaurant. All of us had been arrested. On the following day, the local government closed my restaurant with the excuse of ‘stirring up anti‑government activities’. As one of the major leaders, I was sent to a labor farm in the mountain area.
The statement claimed that the applicant had escaped from the labour farm in December 1995, but was aware that he was on the “wanted list of the authorities”. He changed his name, and: “I escaped from China with my new name”. No details of these events were provided to the Tribunal, nor any corroborative documentation.
The application was acknowledged by the Tribunal in a letter sent to the postal address given by the applicant and to his agent. Another letter was sent to both addresses on 12 February 1998, offering the applicant the opportunity to attend a hearing on 12 March 1998. However, the response forms were never completed and returned, and there was no attendance at the hearing, nor contact with the Tribunal by the applicant or his agent.
By letter dated 30 April 1998, the Tribunal handed down a decision dated the same date, affirming the delegate’s decision. The Tribunal said that it had not been possible to satisfy doubts about the applicant’s claims arising from conflicting information and inconsistencies with independent country information about troop movements. The Tribunal said: “in the absence of the Applicant attending a hearing and giving direct evidence, I am unable to resolve these inconsistencies”. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
According to the records of the Department of Immigration which are before the Court, the next official contact with the applicant occurred in June 2000, when the applicant was arrested after trying to renew a driver’s licence. In the course of his subsequent immigration detention, he employed migration agents with legal qualifications, who negotiated with the Department officials to obtain bridging visas on the basis of the applicant’s promises to depart Australia and return to China.
Eventually, a bridging visa was granted on 18 July 2000, and this was renewed several times to allow the applicant the opportunity to obtain the requisite passport and travel arrangements. A condition of the bridging visa was that the applicant procure a bond in the sum of $20,000, which was given by another person.
However, the applicant did not depart. His bridging visas finally expired on 20 December 2000. According to a file note made on 24 January 2001, when it was decided to forfeit the bond, the applicant “has no outstanding applications before the Department. He remains concealed within the community. He is consequently an unlawful non‑citizen”.
In the course of these contacts with the Department, it is clear that the applicant and his advisers were aware of, at least, the delegate’s 1997 decision refusing the protection visa application made in 1996. It is reasonable to infer that the applicant also told them that he had given instructions for an appeal to be brought to the RRT, or that his appeal was otherwise discoverable by them.
The next official contact with the applicant occurred in June 2008 when, in circumstances which are not shown in the papers before me, the applicant was again taken into immigration detention. He there requested, and was sent a copy of the Refugee Review Tribunal’s decision.
On 27 June 2008 he commenced the present application, seeking judicial review of the Tribunal’s decision which had been made on 30 April 1998.
The application contains the following ground and particulars:
The jurisdiction of Second Respondent remains constructively unexercised due to 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.
Particulars:
i.The migration agent I hired failed to submit substantial claims regarding my persecution background when he lodged the original Protection Visa application on my behalf. I provided the agent my personal information and my persecution experience back in China when I authorized him as my representative and paid him. However, my original application did not include any detail of my persecution. Moreover, it was lodged with the name “H” with which I fled China rather than my real name – “C”. The application was consequently refused by the Minister’s delegate.
ii.The migration agent submitted my refugee claims when he lodged review application with the Second Respondent. However, the submission contains serious errors which directly led to the Second Respondent confirming the delegate’s decision.
iii.I have never been advised by the migration agent the progress of my application, nor the decision of the delegate. Most essentially, I have never been informed of the review with the second respondent and the Tribunal hearing invitation. Given the inconsistency within my claims caused by the agent and my absence, the Tribunal consequently concluded, “in the absence of the applicant attending a hearing and giving direct evidence, I am unable to resolve these inconsistencies”.
The application is supported by an affidavit, which recounts the following:
1.I am the applicant of this application and all the information I provide in this affidavit is true.
2.I am a citizen of the People’s Republic of China. I have been persecuted by Chinese authority due to my involvement with anti‑government demonstration.
3.I fled China and arrived in Australia on 26 March 1996.
4.Early April 1996, a friend Mr L introduced me to a migration agent who called himself Harry. We met in his office in City and I provided the agent my personal information and my experience in China. The agent promised to take care of my refugee application after I paid him $480. I was then asked to sign on some blank forms in English.
5.I advised the agent I was leaving Sydney soon and would be working in western New South Wales. The agent asked me to leave my phone number and said that I will be informed should anything happen.
6.I did not receive any news during the time. I came back to Sydney early 1997. I called the agent soon after I found a place and settled down in Dee Why. I asked about the outcome of my application and was told that nothing had happened. I gave the agent my new address and request him to let me know the progress of my application.
7.After that, I called the agent many times inquiring my application. However the answer I received was always the same: nothing has happened yet and I should wait patiently.
8.I was arrested by Immigration officer in July 1998 and put in immigration detention centre. I realized at that time that the migration agent has cheated on me. I called him and demanded an explanation but was told that he had done everything and there was nothing more he could do for me.
9.I engaged another migration agent and eventually was released from the detention on a Bridging Visa. Because of the irresponsibility of the migration agent, I did not attend the RRT hearing and missed chance of judicial review. I humbly request the Court to take into account the situation and allow this application.
The Minister’s counsel elected not to cross‑examine the applicant, and took no formal objection to the absence of proper certification of translation of the affidavit to the applicant. The applicant affirmed the truth of the affidavit bearing his signature, informally from the Bar table.
Clearly, there are uncertainties in the factual assertions of the applicant about the circumstances of his protection visa application and his appeal, and the involvement of agents in those proceedings between 1996 and 1998. A comparison of his assertions with the chronology of events which I have narrated above must raise some doubt as to whether the applicant was, in truth, totally unaware of the progress of his appeal to the Refugee Review Tribunal and its outcome.
However, counsel for the Minister submitted that assuming the events which the applicant invites the Court to accept, they fall far short of establishing a jurisdictional defect in the procedures of the Tribunal leading to its decision, of the sort which has been explained by the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 (see also the recent discussion of those principles in SZLHP v Minister for Immigration & Citizenship [2008] FCAFC 152, Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17, and SZHVM v Minister for Immigration & Citizenship [2008] FCA 600).
It is enough in the present case for me to find that the events alleged by the applicant show no more than that the migration agent he employed to present his appeal failed to inform the applicant of correspondence from the Tribunal which invited the applicant to a hearing, thereby bringing about the inevitable refusal of his application for review. Any dereliction by an agent at earlier times could have been rectified by the applicant had he attended the hearing, and cannot therefore be found to have been causative in the Tribunal’s adverse decision.
The evidence leaves open several possible explanations for the failure to notify the applicant of the hearing date. On one view of the applicant’s account, he does not establish that, in fact, he made himself available to the agent to receive in a timely fashion communications from the agent as to the appointment of a Tribunal hearing. On that view, there may have been no material fault on the part of the agent.
On another view of the applicant’s factual claims, there was negligence and breach of contract by the agent in failing to perform part of the agent’s responsibilities, requiring him to notify the applicant of his opportunity to attend a hearing. However, this of itself does not establish anything amounting to a fraud on the procedures of the Tribunal, as discussed in the above authorities.
I am unable in the present case to find any evidence in the applicant’s evidence, or in the documents from the Department of Immigration and Tribunal, establishing fraudulent conduct by an agent. Certainly, not fraudulent conduct which “had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the [applicant]” (see SZFDE at [49] and [51]).
I am, therefore, not satisfied that the ground of jurisdictional error presented by the applicant is made out.
Moreover, I also would base my decision to dismiss the present application, upon established principles of discretion in relation to the grant of relief under s.476 of the Migration Act 1958 (Cth) and the Constitutional jurisdiction which it emulates. As has been recently pointed out by the Full Court in Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 at [30]:
We consider it appropriate to start from the position that an applicant for judicial review of an administrative decision made more than seven years earlier is required to offer a satisfactory explanation of why the application was not made earlier.
In the present case, the Tribunal’s decision was made 10 years earlier, and eight years after the applicant had every opportunity to discover the outcome of his application to the Tribunal, and probably did discover it, with the assistance of expert advisers. As in SZIQB, the evidence as to the applicant’s subsequent conduct is that “he deliberately undertook a course of conduct that would render it difficult, if not impossible, for the Tribunal, his migration agent and the Department of Immigration to find him”.
In the present case, the long delay is not only unwarranted and lacking in explanation, but reveals conduct which should cause the Court to decline to give relief in the exercise of its discretion.
For the above reasons, I therefore would refuse to make the orders sought in this application, and I dismiss the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 10 October 2008
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