SZMSX v Minister for Immigration
[2009] FMCA 324
•16 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMSX v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 324 |
| MIGRATION – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa to citizen of China – where applicant was not invited to a hearing – allegation of fraud by migration agent – delay – whether relief should be refused in the exercise of the Court’s discretion – whether exceptional circumstances. |
| Migration Act 1958 (Cth) ss.281, 312A, 312B, 424, 424C, 425, 426A, 441A, 474, 476 |
| Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 SZJMA v Minister for Immigration [2007] FMCA 410 Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 distinguished. SZMGX v Minister for Immigration [2008] FMCA 1529 distinguished. SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 distinguished Jalagam v Minister for Immigration [2008] FMCA 1417 distinguished. SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 distinguished. Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 distinguished. Jalagam v Minister for Immigration and Citizenship [2009] FCA 197 SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 SZKAI v Minister for Immigration and Citizenship [2008] FMCA 1049 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 Jones v Dunkel (1958-1959) 101 CLR 298 |
| Applicant: | SZMSX |
First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2370 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 November 2008 |
| Date of Last Submission: | 25 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondent: | Mr Godwin |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
That there is to be an order in the nature of certiorari quashing the decision of the Second Respondent the Refugee Review Tribunal made on 14 October 2003 and handed down on 6 November 2003.
That there is to be an order in the nature of mandamus requiring the Second Respondent to determine the Applicant’s application for a Protection (Class XA) visa according to law.
That the First Respondent is to pay the Applicant’s costs fixed in the sum of $8,880.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2370 of 2008
| SZMSX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of the People’s Republic of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 14th October 2003 and handed down on 6th November that year. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The application was not made to this Court until 11th September 2008. The Applicant is proceeding on a Further Amended Application filed in Court on the day of the hearing. In that document, the Applicant seeks writs of certiorari and mandamus.
The Applicant relies on this ground of review:
A jurisdictional error occurred when the Tribunal dealt with the applicant’s application pursuant to s.424C of the Migration Act 1958 in circumstances where a fraud was perpetrated on the Tribunal by a third party and resulted in a denial of procedural fairness.
Background
The Applicant arrived in Australia on 21st December 2002, as part of a Chinese tour group. He applied for refugee status by lodging an application for a Protection (Class XA) visa on 15th January 2003.
A typed statement attached to his application claimed a well-founded fear of persecution as a Falun Gong practitioner who had been arrested and detained in a forced labour camp.
A delegate of the Minister refused his application for a protection visa on 10th February 2003.
Application for Review by the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 17th March 2003. His application gave a home address in the inner Sydney suburb of Ultimo and a mailing address, PO Box 412, Haymarket NSW 1240.
Attached to his application was a typed statement setting a claim to be a Falun Gong practitioner who had been arrested and detained in the Zibo forced labour camp. The statement described the Applicant going on a hunger strike for 60 days until he was hospitalised and later released.
The Tribunal wrote to the Applicant at the post office box address on 18th March 2003, acknowledging receipt of his application. It wrote again to the Applicant on 16th September 2003, requesting the following additional information by 9th October 2003:
A legible photocopy of every page of the passport you used to enter Australia.[1]
[1] Court Book 49
No reply was received to that letter and the Tribunal next wrote to the Applicant on 16th October 2003, informing him that it would hand down a decision in his case on 6th November, which it duly did. It did not invite him to attend a hearing.
The Refugee Review Tribunal Decision
The Tribunal affirmed the delegate’s decision not to grant a protection visa. In its Decision Record, the Tribunal considered the following:
· Claims received by DIMIA on 15 January 2003
· DIMIA decision record of 10 February 2003
· Claims received by RRT on 17 march 2003
· RRT letter of 16 September 2003
· Country Information
General
Falun Gong exercises
Treatment of Falun Gong practitioners
Bribery
Passports and exit
The Tribunal noted that “the postal address he gave is the address of a migration service centre in Haymarket, Sydney (RRT folios 4 and 15).[2]
[2] Court Book 58 at [7]
The Tribunal’s Findings and Reasons
The Tribunal noted in its Findings and Reasons that it had written to the Applicant seeking “details of one key item on which he had repeatedly failed to provide information – his passport”. The Tribunal went on to say:
The Tribunal is aware that the mailing address he provided is the address of a migration service centre (see paragraph 7 on page 6), although he himself has not claimed at any stage that he was using a migration adviser or agent.[3]
[3] Court Book 61
The Tribunal set out the reason for not inviting the Applicant to a hearing:
Although the Tribunal is not compelled to proceed to a decision without offering the applicant a hearing in all cases where an applicant is invited under s.424 to give additional information and does not give the information before the time for giving it has passed, the Tribunal considers that such a course of action is appropriate in this case.[4]
[4] Court Book 62
The Tribunal stated that the Applicant’s claims about having been persecuted were not credible, and gave these reasons:
First, because, despite so many opportunities to put his case, the applicant’s claims remain infuriatingly vague or incomplete or contradictory in key areas and he has done nothing to answer the many deficiencies identified in his case.[5]
Second, the fact that the applicant has given only one address for the 11 years prior to his departure from China and only one job for the five years prior to his departure (see para 1) indicates that he was readily findable by the authorities and was not in fact in fear of them.[6]
Third, the fact that he was able to obtain a passport in his own name after his supposed detention and use it to obtain an Australian visa and to leave China legally and that it is valid for return to China leads me to conclude, against the background of the country information and against my knowledge of the stringent procedures applied in the issue of Australian visas, that it is a genuine passport, that there was nothing irregular or difficult about the way in which he obtained it, that there was nothing irregular about his status at the time he obtained and used the passport, that he is not wanted by the Chinese authorities and that he was not in fear of detection and detention by the Chinese authorities.[7]
Fourth, the fact that he did not apply for a protection visa until he had been in Australia for almost four weeks is a further indication that he did not and does not fear persecution.[8]
[5] Court Book 63
[6] Court Book 64
[7] Ibid
[8] Court Book 65
The Tribunal was not satisfied that the Applicant was a Falun Gong practitioner and was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention. Accordingly, it affirmed the decision not to grant a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and affidavit in support on 11th September 2008. He later obtained legal representation.
An amended application was filed on 3rd November 2008 and a further amended application was filed in Court on the day of the hearing.
At the hearing, the Applicant relied on four affidavits:
a)an affidavit by the Applicant filed on 3rd November 2008;
b)an affidavit by the Applicant filed on 13th November 2008;
c)an affidavit by the Applicant filed on 19th November 2008; and
d)an affidavit by Sarah Loch-Wilkinson, solicitor, filed on 19th November 2008.
Ms Loch-Wilkinson was not required for cross examination. Her affidavit dealt with her telephone inquiry from the Migration Agents Registration Authority as to whether a Ms Ying Ying Bao had ever been registered as a migration agent. The information she received was that Ms Bao was registered during 2003 and was removed from the register in July 2004. Her MARA registration number was 0211423.
Ms Loch-Wilkinson deposed that she searched the Migration Agents Registration Authority Website and her search did not show the name “Ying Ying Bao” appearing on the website.
The Applicant deposed to three affidavits.
He claims in his affidavit filed on 3rd November 2003 that he signed
his application for refugee status with his friend Pan Jiang and a migration agent, Ms Bao, at the Sydney Migration Education Centre on 15th January 2003. He said he could not read any English and nobody read the form back to him; he just signed it. The home address given in the application for a protection was not an address at which he ever lived.
The Applicant also deposed:
i)He did not have his passport because it was still with the tour group with which he had travelled to Australia.
ii)About two months later he went back to the migration agent to sign another form to apply to the Refugee Review Tribunal. He did not read that form.
iii)He did not receive the letter from the Tribunal asking about his passport.
iv)He did not receive the letter from the Tribunal that the decision would be handed down on 6th November 2003, nor did he receive the letter of 6th November enclosing the decision.
v)In late 2003 he went to see Ms Bao to ask about his case but was told that she had left and taken the files with her. He did not report this to the Department of immigration because he was scared he would be sent back to China.
vi)He was detained on 5th April 2008 and spent 190 days in immigration detention.
vii)He obtained a copy of the Tribunal decision on 18th August 2008.
In his affidavit filed on 13th November 2008 the Applicant deposed that:
i)He was introduced to the migration agent Ying Ying Bao by his friend Pan Jiang at an office in Sussex Street, Sydney with a sign on the door in Chinese indicating it was a migration agency.
ii)He told Ms Bao that he was involved in the demonstration in Tiananmen Square and was detained for three days and later fired from his job. He was also a Falun Gong practitioner.
iii)Ms Bao told him that the Department did not allow representation by a migration agent in refugee cases and if he was asked about her he should say she was just a friend.
iv)The events described in the written statement attached to his visa application did not happen and he did not make those claims to Ms Bao.
v)When his application for a visa was refused by the Department he saw Ms Bao, who gave him a form to sign to go to the Refugee Review Tribunal.
vi)Ms Bao did not tell him there was a written decision from the Department or that he might have to go to a hearing.
vii)He went back to see Ms Bao in May and July 2003 and was told on each occasion by one Songtao Lu, who also worked in the migration office, that Ms Bao was overseas. When he went back again in late 2003 he was told that Ms Bao had left the business and taken the files with her.
In his affidavit of 19th November 2008 the Applicant deposed that:
i)He trusted Ms Bao to have completed the documents correctly so he did not ask her to read them back to her.
ii)He last saw Jiang Pan[9] in 2003 and that this person had returned to China to do business. He deposed that he had no idea where this person is.
[9] referred to in the earlier affidavits as Pan Jiang
In cross-examination by Mr Godwin of counsel, who appeared for the Minister, the Applicant said that he had left the tour group about three days after they arrived in Australia. He had met the man Pan Jiang in China and he rang him after he arrived in Sydney. He asked Pan Jiang about protection visas and Pan Jiang said he would contact a migration agent for him. It was Pan Jiang who arranged for him to see the agent Ying Ying Bao. Songtau Lu was present when he went to see Ms Bao.
The Applicant said that Ms Bao asked him if he wanted to make a refugee application. He told her he was an activist and was moved away and lost a promotion. He was detained for 3 days for practising Falun Gong.
The Applicant said that Ms Bao had already filled in the form and he signed it. Ms Bao suggested that he should use her address because he may be moving around.
The Applicant said that Songtao Lu took him to the Immigration Department, where he signed the application for a visa. He denied that it was Songtao Lu who told him that he could not be represented by an agent or who took instructions from him.
The Applicant was shown various documents in the Court Book. He denied that he ever lived at the Ultimo address.
Question 50 of the application asked “Do you have your travel document with you now?” and the answer “Yes” was ticked. However, the Applicant said that his passport had been taken away by the tour group.
The Applicant agreed that he had signed the application for a protection visa.[10]
[10] Court Book 23
The Applicant said in cross examination that he had gone to see
Ms Bao again in February 2003 because he needed to sign the application to the Refugee Review Tribunal. Pan Jiang arranged for him to go to Ms Bao’s office. She told him that his application for a visa had been rejected and said that the success rate for Chinese applicants was very low. He did not ask why his application had been refused, nor did he ask her to read the rejection letter to him.
The Applicant said that Ms Bao told him that the next step was to go to the Tribunal, which would involve arbitration, or a hearing.
The Applicant gave evidence that he went back in May 2003 to inquire about the progress of his application. Mr Lu said to him:
Your case is being handled by Ms Bao. I am not clear on it.
Mr Lu told the Applicant that Ms Bao had gone back to China and that he was unable to contact her.
The Applicant agreed that he did not try to find help somewhere else and that he did not ask where the Tribunal was so that he could find out about his case.
Some time in the second half of 2003 Mr Lu told the Applicant that
Ms Bao no longer worked at the office. He said that the files had been taken away by Ms Bao. The Applicant left his telephone number with Mr Lu and asked him to ring him when Ms Bao came back.
It was not until 5th April that the Applicant spoke to anyone about his case, and that was to an immigration officer.
In re-examination, the Applicant said that he trusted both Pan Jiang and Ms Bao. He paid her two amounts of $700.00 and $300.00.
There were no other witnesses.
Submissions
Counsel for the Applicant, Mr Reynolds, submitted that the Applicant had commenced the proceedings in this Court within the statutory time limits from when he actually received notification of the Tribunal decision on 18th August 2008 (see Minister for Immigration and Citizenship v SZKKC[11]).
[11] [2007] FCAFC 105
He submitted that, as the Applicant’s claims had not been presented to the Department or the Tribunal, Ms Bao had a motive for not making him aware of the reasons for the Department’s decision or the Tribunal’s requests for information. It was in her interest to ensure that the Applicant remained unaware of the claims lodged and not attend a hearing. Those actions, he submitted, constituted a fraud on the Applicant and on the Tribunal. Ms Bao received a fee from the Applicant on the basis that she would assist him with the Tribunal process and would make him aware of any correspondence from the Tribunal. She did not do this and abandoned the Applicant. Mr Reynolds submitted that it would seem that Ms Bao had no intention of representing the Applicant’s interest at any time.
Mr Reynolds submitted that Ms Bao’s failure to make the Applicant aware of the s.424 request and the consequential loss of the right to a hearing by virtue of s.424C amounted to an effective subversion of the operation of s.424 and the observance by the Tribunal of its obligations to accord procedural fairness to applicants for review (see SZFDE v Minister for Immigration and Citizenship[12]). He submitted that a subversion of the operation of an essential requirement of Part 7 of the Migration Act is a jurisdictional error.
[12] (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35
As to the question of delay, Mr Reynolds conceded that the issue of writs under s.476 of the Act is discretionary (Re Refugee Review Tribunal; ex parte Aala[13] at 108-109) and that delay is a relevant matter in the exercise of discretion. However, the Court should only refuse relief in exceptional circumstances (SZIZO v Minister for Immigration and Citizenship[14] at [97]).
[13] (2000) 204 CLR 82
[14] [2008] FCAFC 122
He submitted that whilst there had been a lengthy delay since the decision was made, it was not exceptional. The Court should take into account the following:
a)The Applicant was not actually notified until 18th August 2008.
b)He applied to the Court within the statutory time limit.
c)The Court would have regard to the seriousness of the matter, as a fraud that led to the subversion of s.425 was seen in SZFDE as extremely serious.
If the Court accepted that a fraud occurred which resulted in the Applicant being denied an opportunity to present his case, this would be a matter of similar seriousness to that in SZFDE and the Applicant should be entitled to relief.
Mr Reynolds submitted that the Applicant’s evidence was an honest account, containing as it did admissions against interest, and referred the Court to the decision of Nicholls FM in SZJMA v Minister for Immigration[15] at [15]-[20]. His Honour said at [16]:
…Nor do I accept what is implicit, at least in the respondent’s submission, that the confused, vague and even contradictory nature of the evidence should lead the Court only to a position of doubting the applicant’s credibility.
[15] [2007] FMCA 410
He submitted that there were three relevant frauds to be considered:
i)Breaches of ss.312A and 312B of the Migration Act;
ii)Forwarding false claims to the Immigration Department and the Refugee Review Tribunal; and
iii)The failure to send on the s.424 notice to the Applicant.
Further, the Court should look to the totality of the conduct alleged, which was similar to that in SZFDE (see at [21]-[22], [32], [36]).
Here, the Tribunal was aware that the Post Box number was one of a migration service centre and it was aware that a migration agent was behind the application. Thus, it is submitted, the Tribunal was on notice that something untoward was occurring.
Mr Reynolds went on to submit that the decisions in Minister for Immigration and Citizenship v SZLIX[16], SZMGX v Minister for Immigration[17], SZLHP v Minister for Immigration and Citizenship[18], Jalagam v Minister for Immigration[19], and SZHVM v Minister for Immigration[20], should be distinguished on their facts.
[16] (2008) 245 ALR 501; [2008] FCAFC 17
[17] [2008] FMCA 1529
[18] [2008] FCAFC 152
[19] [2008] FMCA 1417 An appeal against this decision was dismissed on 6 March 2009 (Jalagam v Minister for Immigration and Citizenship [2009] FCA 197).
[20] [2008] FCA 600
He also referred the Court to the decisions in Minister for Immigration and Citizenship v SZIQB[21] at [24], SZIVK v Minister for Immigration and Citizenship[22] at [25]-[27], [32]-[34], and SZIZO v Minister for Immigration and Citizenship[23] at [97], where the Full Court of the Federal Court (Moore, Marshall and Lander JJ) held:
It should only be in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal has failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted.
[21] [2008] FCAFC 20
[22] [2008] FCA 334
[23] [2008] FCAFC 122
Counsel for the Minister, Mr Godwin, noted that:
i)The Applicant signed the visa application without asking for its contents to be read to him.
ii)The Applicant went to see the migration agent in the company of a friend (Pan Jiang) who played a role in the dealings with the agent, but the Applicant has not filed any evidence from that friend.
iii)The letter from the Department refusing the application for a visa was only sent to the Post Office Box, which is claimed to be that of the agent. Thus, the evidence shows that the agent promptly notified the Applicant of the refusal decision.
iv)The Applicant signed the application for review by the Refugee Review Tribunal without asking for its contents to be read to him.
v)The Applicant conceded that he made a conscious decision not to follow up his case with the Department.
vi)There is no evidence to establish that the agent was not a registered migration agent.
Mr Godwin referred the Court to the deemed receipt provisions of the Migration Act in respect of the s.424 notice, referring to the decision of Smith FM in Jalagam v Minister for Immigration where his Honour stated at [60]:
First, it seems difficult to translate the principle applied in SZFDE by the High Court to a subversion of the fair hearing procedures of a Tribunal in a matter coming within its jurisdiction, into a principle which overcomes a mandatory statutory time limit conditioning that jurisdiction. It would be necessary to find in the Migration Act an implication that the mandatory time limit, and the deemed receipt provisions to which it attaches, are subject to an implied qualification in relation to fraud affecting the lodgement of an application for review. There is no authority suggesting this, and a wealth of authority, albeit preceding SZFDE, that these provisions take effect even where a visa applicant himself is unaware of the giving of the delegate’s decision or other notification, and even where there is fault in communicating it by an agent employed by the visa applicant (e.g. see NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184, Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at 556, SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485, VNAA & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]-[15]). However, this issue was not fully explored in submissions before me, and I do not need to decide that legal question.
Mr Godwin referred particularly to the decision of the Full Court of the Federal Court in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs[24] where their Honours held at [16] that Part 7 of the Act must be read as a whole:
Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s.420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.
[24] (2004) 136 FCR 407
Mr Godwin submitted that the Tribunal sent the s.424 request by prepaid post to the last address for service provided by the applicant as permitted by s.441A(4) of the Act, so the Applicant is deemed to have received it.
It was further submitted that, to establish fraud, the conduct of the third party must be more than simple failure to inform or bare negligence or inadvertence (SZLIX at [33]; SZFNX v Minister for Immigration and Citizenship[25] at [33]; SZKAI v Minister for Immigration and Citizenship[26] at [32]).
[25] [2007] FCA 1980
[26] [2008] FMCA 1049
It was submitted that the evidence of the motivation of the agent was absent and that passing the s.424 letter on would not have exposed her to any personal risk. The evidence suggests many possibilities, including failure to inform or bare negligence.
Mr Godwin also submitted that relief should be refused even if error were to be established, because the Applicant’s conduct is inconsistent with an entitlement to the relief claimed. He did not try to establish the fate of his application for review for a period in excess of 4 years and the delay has not been adequately explained (see Re Commonwealth of Australia; Ex parte Marks[27] at 495-496; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[28]).
[27] (2000) 177 ALR 491
[28] [2004] FCAFC 283
Conclusions
If this application is to succeed, the Applicant must establish three things:
i)That his evidence of the circumstances is credible;
ii)That the conduct which he alleges occurred amounts to a fraud; and
iii)That relief should not be denied in the exercise of the Court’s discretion due to unconscionable and unexplained delay.
Dealing with the Applicant’s evidence, he has claimed that he met a person named Pan Jiang in China before he came to Australia. He joined a tour group and left that group after he arrived in Australia. He contacted Pan Jiang, who by this time was in Australia, and this person took him to a person named Ying Ying Bao, who claimed to be a migration agent.
The Applicant claims that Ms Bao completed an application for a protection visa for him, which he signed without having the contents read to him. When the application was refused, Ms Bao completed an application for review to the Refugee Review Tribunal for him. He signed this application without having the contents read to him.
The Tribunal sent a letter to the Applicant at the mailing address given on the application for review, seeking further information about his passport under the provisions of s.424 of the Migration Act. The Applicant was not made aware of this letter and no reply was ever sent to the Tribunal. As a result, the Tribunal made a decision on the review without taking any action to obtain the additional information under the provisions of s.424C. The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Applicant gave evidence that he made several inquiries about the progress of his case, only to be told that Ms Bao was away. Eventually he was told that she had left the business and taken the files with her. He did not make any inquiries from the Department or the Tribunal.
After he was taken into Immigration Detention, the Applicant obtained a copy of the Tribunal decision. He found out that a lot of the information that had been given to the Department was false, including what was said to be his residential address. The statement given to the Department setting out his purported claims did not reflect the account that he had given Ms Bao at all.
Whilst the Applicant’s evidence was at times confused and unsatisfactory, nevertheless his account is a plausible one. Counsel for the Minister submitted that the Applicant did not provide any evidence from the man Pan Jiang who he claimed introduced him to the migration agent, but he has explained that in his evidence by saying that he believed that Pan Jiang had returned to China and he has lost contact with him. It was held in Jones v Dunkel[29] that the unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case. In this case, however, the Applicant has given an explanation for his failure to call any evidence from Pan Jiang and no such point arises.
[29] (1958-1959) 101 CLR 298
It is the Applicant’s case that the migration agent who did not act in his interests was one Ying Ying Bao who operated out of an office in the Haymarket area of Sydney. It is a key piece of evidence that there is, or was, such a person. The affidavit evidence of Sarah Loch-Wilkinson, which was unchallenged, established that a person of that name was in fact on the MARA register of migration agents in 2003 and was removed from the register in July 2004. This evidence is important because it supports the Applicant’s case.
The Applicant himself gave evidence by affidavit and was cross-examined by Mr Godwin of counsel. He was unshaken in his evidence. Whilst a witness’s demeanour in the witness box is not entirely determinative of his or her credibility, I observed nothing to indicate that the Applicant was not telling the truth. His evidence had the ring of truth to it and it is partly corroborated by the affidavit evidence of
Ms Loch-Wilkinson.
I am satisfied that the Applicant’s account of the circumstances is plausible and his evidence should be accepted.
Fraud
The fact that the Applicant’s account of the circumstances has been accepted does not of itself establish that there was any fraud by the migration agent.
It is now well established (SZFDE v Minister for Immigration and Citizenship at [41] and Minister for Immigration & Multicultural Affairs v SZFDE[30] at [74])that, in making a finding of fraud, the Court should specify:
·What was said that was fraudulent
·How it was fraudulent
·How it was acted upon
[30] (2006) 154 FCR 365; [2006] FCAFC 142
The High Court, in SZFDE, has also considered the question of motive:
[45]Neither the reasons of the Federal Magistrate nor the dissenting reason of French J in the Full Court considered in any detail the question of the motives of Mr Hussain in acting as he did with respect to the rejection of the invitation to attend the Tribunal hearing. The inference is well open on the evidence that Mr Hussain acted as he did for self-protection, lest in the course of a Tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions imposed by Pt 3 Div 2 of the Act, particularly by s.281.[31]
[31] (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35 at [45]
I note in passing that s.281 of the Migration Act places restrictions on persons who are not registered migration agents charging fees for giving immigration assistance and imposes a penalty of imprisonment for up to 10 years for a breach of that section.
I note also that in SZHVM v Minister for Immigration and Citizenship[32] at [47] Middleton J said:
SZFDE does not stand for the proposition that a failure by an applicant to attend the Tribunal hearing due to the fault or conduct of a third person bears the result that the Tribunal decision to proceed under s.426A is always vitiated by error.
[32] {2008} FCA 600
A similar comment can also be made, in my view, in a situation like the present case under review, where the Tribunal made a decision the review without taking any further action to obtain the additional information sought under s.424 of the Act.
Where an applicant is invited by the Tribunal under the provisions of s.424 of the Act to provide additional information and does not do so within the time limit provided, s.424C(1) says that the Tribunal may make a decision on the review without taking any further action to obtain the additional information. The effect of this is set out in s.425(2)(c) and s.425(3) which provide that s.425(1) of the Act does not apply if s.424C(1) applies and, in that case, the Applicant is then not entitled to appear before the Tribunal.
It is the Applicant’s evidence that he claimed a fear of persecution in China and sought a migration agent to help him obtain a protection visa. There is evidence to show that Ying Ying Bao held herself out to be a migration agent and was in fact a registered migration agent at the time.
It would appear that there was no reason why Ms Bao could not have lawfully assisted the Applicant to apply for a protection visa and, if necessary, apply to the Refugee Review Tribunal for a review of the decision not to grant him a visa. However, the availability of a lawful option does not preclude a person from choosing to act unlawfully.
In this case, there is evidence that Ms Bao did not prepare a statement to go with the Applicant’s application for a protection visa but prepared a different statement that was not his account at all. It was this information that was considered by the delegate and then by the Tribunal. The Applicant did not check what was in the statement by asking for it to be translated into English for him. He trusted Ms Bao, and paid her, to put his statement before the delegate and, later, the Tribunal. In this way the Applicant was misled and so were the delegate and the Tribunal.
It is the Applicant’s evidence that Ms Bao told him not to let on that he was represented by a migration agent, saying:
I will take care of your application, but the Department does not allow representation by a migration agent in refugee cases. If the Department asks you about me you should tell them I am just a friend.[33]
[33] applicant’s affidavit of 13 November 2008 at paragraph 4
This statement was untrue and Ms Bao, as a registered migration agent, should have known that it was untrue. The Applicant accepted this statement and paid Ms Bao to complete his application. It is clear that his application for a visa was submitted without the Department being notified that he was being assisted by an agent. Similarly, the application for review was submitted to the Refugee Review Tribunal without the Tribunal being notified by the agent.
The submission of the application for a visa and the application for review to the Tribunal without the agent notifying either the Department or the Tribunal that she was assisting the Applicant constituted an offence under ss.312A and 312B respectively. There is no reason given as to why the agent chose to act in this way except that it can be understood in the light of the false story being given to the Department about the Applicant’s fear of persecution.
Again, it is the Applicant’s evidence that the agent never made him aware of the request letter under the provisions of s.424 relating to his Chinese passport. A registered migration agent would have known, or ought to have known that a failure to reply to the s.424 letter within the time required would lead to the applicant losing his entitlement under s.425 to attend a hearing.
In my view, it is clear that the agent had a motive for acting, or omitting to act, in way that lost the Applicant his entitlement to attend a Tribunal hearing. If the Applicant attended the hearing, it was likely that the Tribunal would find out that:
a)the information about the Applicant’s refugee claim was false;
b)the Applicant was being assisted by a migration agent who had not informed the Department or the Tribunal in breach of ss.312A and 312B.
The inference can be drawn that the agent took money from the Applicant to prepare the appropriate documentation without any intention that he would ever attend a hearing of the Tribunal, where there was a risk that the truth would be found out.
In summary, the following conduct was fraudulent:
a)giving false information to the Department and the Tribunal;
b)not disclosing that the applicant was being assisted by a migration agent, in breach of ss.312A and312B;
c)giving the Applicant an untrue “cover story” to say that he was being assisted by “a friend” to disguise the agent’s involvement; and
d)not informing the applicant of the Tribunal’s s.424 request or providing information in answer to that request, leading to the Applicant’s loss of his entitlement to appear before the Tribunal.
The actions were fraudulent because they meant that the Applicant’s true refugee claim was never put before the Tribunal which effectively stultified or subverted the legislative scheme of review of decisions relating to protection visas.
The Applicant acted upon this advice by signing the documents prepared for him and paying the agent for her services. He effectively entrusted the agent with the conduct of his application for a visa and seeking a review of the delegate’s decision. Unwisely, he did not ask to have the documents that he signed translated for him.
I am satisfied that the Applicant has shown fraudulent conduct by a migration agent, or an apparent migration agent, which was a fraud not only on the Applicant, but on the Tribunal as well. The jurisdiction of the Tribunal was therefore not exercised and the Court must therefore consider the issue of writs of certiorari and mandamus.
What the Court needs now to consider is whether the Court, in its discretion, should decline to grant relief due to the Applicant’s delay in seeking relief. The Full Court of the Federal Court has made it clear in SZIZO v Minister for Immigration and Citizenship[34] at [97] that it should only be in exceptional circumstances that a Court should refuse to issue the constitutional writs once it has determined that the Refugee Review Tribunal has failed to comply with its imperative statutory obligation to an applicant seeking review of a decision of a delegate not to grant a protection visa. It is not significant that the Applicant’s plight has arisen from the actions of a third party rather than an error by the Tribunal.
[34] [2008] FCAFC 122
It is well established that unconscionable and unexplained delay in seeking relief can constitute a reason for the Court to refuse relief in its discretion. Here, the evidence is that the Applicant kept asking to see the migration agent and was constantly being put off when he inquired. Eventually, he was told that she had gone and taken the files with her. True it is that he did not then speedily go to the Tribunal or the Department to inquire about his position.
However, the Applicant appears to the Court to be a relatively unsophisticated man with little, if any, command of English and apparently no knowledge of even where the Tribunal was. His migration agent had apparently decamped, Songtao Lu at the migration education centre clearly did not want to know him and his friend, Pan Jiang, who had introduced him to these people, had apparently left to go back to China and he had lost contact with him.
I am not satisfied that the exceptional circumstances referred to by their Honours in SZIZO justifying the discretionary refusal of relief have been made out and I propose to make orders in the nature of certiorari and mandamus.
The Applicant is legally represented and I see no reason to depart from the practice that costs follow the event.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 15 April 2009
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