SZNAJ v Minister for Immigration
[2009] FMCA 983
•20 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNAJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 983 |
| MIGRATION – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of Fiji claiming fear of persecution as a member of a minority at the hands of Fijian landowners – where applicant did not attend Tribunal hearing – where applicant claims fraud by migration agent – whether fraudulent omission – delay – whether the applicant delayed in seeking a remedy – credibility – no reviewable error. |
| Evidence Act 1995 (Cth) s.140 Federal Magistrates Act 1999 (Cth) s.16 Migration Act 1958 (Cth), ss.91X, 425, 425A, 426A, 441A, 476, 477 |
| SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; 96 ALD 510; [2007] HCA 35 SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176 WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190; 79 ALJR 94; [2004] HCA 50 Minister for Immigration and Multicultural Affairs v SZKKC (2007) 159 FCR 565; [2007] FCAFC 105 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 Briginshaw v Briginshaw (1938) 60 CLR 336 Holloway v McFeeters (1956) 94 CLR 470 SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; 176 ALR 219; 75 ALJR 52; [2000] HCA 57 Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 | ||
| Applicant: | SZNAJ | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3197 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 25 February, 14 April, 26 August 2009 |
| Date of Last Submission: | 26 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent.
The Application is listed for Costs Mention on Thursday 29 October 2009 at 10:15am before Federal Magistrate Scarlett in Court 7B, Level 7 John Maddison Tower, 88 Goulburn Street Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3197 of 2008
| SZNAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is a citizen of Fiji who is seeking judicial review of a decision of a decision of the Refugee Review Tribunal signed on 22nd October 2002 and handed down on 14th November 2002. The Tribunal affirmed the decision of a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs not to grant the applicant a protection visa.
By his amended application, filed on 6th February 2009, the applicant seeks writs of:
a)Certiorari;
b)Prohibition; and
c)Mandamus.
He claims that the Tribunal decision is not valid due to the fraud perpetrated by his migration agent on both the Tribunal and the applicant. Because of this fraud, he claims that he was denied an opportunity to attend the hearing under s 425 of the Migration Act to give evidence and present arguments.
Background
The applicant arrived in Australia in August 1997 and applied for a Protection (Class XA) visa on 1st August 2001. His application was refused by a delegate of the Minister on 24th August 2001.
The applicant applied to the Refugee Review Tribunal for review of that decision on 25th September 2002. On 31st July 2002 the Tribunal invited the applicant to attend a hearing on 26th August 2002. The applicant did not attend the hearing and the Tribunal decided the matter in his absence under the provisions of s 426A of the Migration Act. The Tribunal was not satisfied that applicant’s fears that he would be persecuted should he return to Fiji were well founded, due to the insufficiency of the material before it.[1]
[1] Court Book 73-74
The applicant commenced these proceedings by filing an application and an affidavit in support on 4th December 2008.
The application had difficulty in proceeding on two occasions, due to difficulties with obtaining a suitably qualified Fijian interpreter and, on one occasion, the illness of a witness for the first respondent.
Eventually the applicant was able to complete his evidence and the matter was able to be heard in full on 26th August 2009.
Evidence
The applicant deposed in his affidavit that he hardly knew any English when he arrived in Australia in 1997 and only applied for a protection visa on 1st August 2001. He approached a migration agent of Fijian birth named Jeremaia Ratuvou for assistance. He claimed that Mr Ratuvou quoted him a fee of $1500.00 and he paid an amount of $50.00, presumably as a deposit. A receipt for $50.00 is annexed to the applicant’s affidavit.
The applicant signed an application for a visa that Mr Ratuvou had prepared. After his application was refused, the applicant deposed that Mr Ratuvou told him he should apply to the Refugee Review Tribunal. The applicant signed the application for review prepared by Mr Ratuvou, who asked him for $800.00. The applicant stated that he paid him $400.00, leaving a balance of $400.00 still to be paid.
The applicant deposed that he was without work and without permanent accommodation, but he gave a friend’s address in Bridge Street Cabramatta as a mailing address. The applicant said that he explained all this to Mr Ratuvou, who reassured him that he would receive letters from the Tribunal and would contact him.
The applicant went on to state:
After some time I called and inquired from him and he said Tribunal sent him an acknowledgement letter. He asked for the balance money. I said that I am still not able to pay as I had no money at all. He said I want it paid soon. After several weeks I called him again and that must have been around June 2002 and he asked me “Where is the balance money?” I said I am still unable to pay that. He hung the phone. I tried to contact him after that but he didn’t speak to me.
In December 2002 Jeremaia called me. He said you still have not paid my balance money. But your case was dismissed by the Tribunal. I said why dismissed, I still did not go for a hearing. He said forget it. He also said don’t call me again and I won’t do anything for you any more.
I never received any documentation from the Tribunal after the application with the Tribunal. My friend from the Bridge Street address never gave me any mail. His telephone was not answered whenever I called and I could not speak to him. Jeremaia did not give me any documents either.[2]
[2] Applicant’s affidavit filed on 4 December 2008 paragraphs [8]-[10]
In cross examination by counsel for the Minister, the applicant was referred to a letter he wrote to the Minister for Immigration and Citizenship dated 28th April 2008, seeking the Minister’s intervention.[3] He said he had help from a friend in writing that letter. He said that he had apologised to the Minister for living illegally in this country for the last couple of years because he was aware that he had not been given a visa. He agreed that he knew that the Refugee Review Tribunal had refused his application for review and eventually conceded that he knew in December 2002.
[3] Court Book 84
The applicant said that he did not have a permanent address when he applied for a protection visa on 1st August 2001 so he used his friend’s address at 16 Bridge Street Cabramatta. He conceded that his friend had given to him letters from the Department of Immigration and Multicultural Affairs dated 2nd August 2001[4], 7th August 2001[5] and 24th August 2001[6] which advised him that his application for a protection visa had been refused.
[4] Court Book 27-28
[5] Court Book 29-30
[6] Court Book 41-42
The applicant said that he had gone to his cousin’s home in Brisbane in about October 2001 and stayed there for about 6 months. He said he returned about April 2002. He said that he never received any letters from the Tribunal.
The applicant said that before his friend at Cabramatta’s telephone was disconnected he used to ring him from time to time and remind him to send on any mail. The friend had left Bridge Street by April 2002.
The applicant said that Mr Ratuvou was still his migration agent and he expected that he would bring any letters to him. He conceded that he never told the Tribunal that he had changed his residential address and he said that he thought the “lawyer” (i.e. the migration agent) had a duty to do so.
The applicant agreed in cross-examination that he did not telephone the Tribunal to tell the Tribunal that his migration agent was not answering his telephone calls, saying that he had no reason to ring the Tribunal because he did not get any letters from the Tribunal.
He denied that Mr Ratuvou ever gave him a copy of the Tribunal decision. He said that he expected to go to the Tribunal to have a hearing and that was why he was surprised to hear in December 2002 that the Tribunal hearing was all over. He was asked about his letter to the Minister in 2008 where he said that Mr Ratuvou told him not to go. He said that his not going to the Tribunal was because he was expecting to go because he saw that as his avenue to get a visa. The applicant was referred to his letter to the Minister dated 29th May 2008 which said:
I have never been through a tribunal review personally, its not that I did not want to attend a Tribunal review, its just because the immigration agent told me that I do not have to attend any Tribunal hearing because he will do it for me.[7]
[7] See Court Book 86
The applicant said that the lady who helped him with the letter may have stated the facts that way but the truth of the matter was there. He said that that part of the letter was incorrect but denied that it was a lie. He explained that there was the understanding that Mr Ratuvou should have attended the hearing and taken him with him.
The applicant conceded that he knew that the letter was wrong when he signed it.
The applicant denied that Mr Ratuvou ever gave him a letter from the Tribunal and denied that he had ever told him that he did not want to attend the Tribunal. He was adamant that he had wished to attend the Tribunal because if he attended and won the case he would get his visa to stay in Australia.
The applicant did not call any witnesses.
The first respondent called Mr Ratuvou to give evidence. In his affidavit, he deposed that he formerly a registered migration agent. He confirmed that he applied for a protection visa for the applicant and, when that was unsuccessful, assisted him in applying to the Refugee Review Tribunal. He insisted that he gave all correspondence to the applicant, saying:
When I received documents from the Department or the Tribunal in connection with (the applicant’s)[8] applications, I gave those documents to him at my house and explained them to him. In particular, I recall giving him an invitation to hearing from the Tribunal, as well as a copy of the Tribunal’s decision shortly after I received them.[9]
[8] The name of the applicant is not published to comply with the requirements of s 91X of the Migration Act
[9] Affidavit of Jeremaia Ratuvou sworn 23 February 2009 at paragraph [4]
Mr Ratuvou deposed that when he showed the applicant the hearing invitation, he told the applicant that he had to attend but the applicant said “I don’t want to go”.[10]
[10] Affidavit of J. Ratuvou 23.2.2009 at [6]
Mr Ratuvou deposed that he recalled getting a message that the Tribunal had called to speak to him but he did not return the call because he was unable to contact the applicant. He specifically denied that he did not return the Tribunal’s call because the applicant owed him money.
Mr Ratuvou specifically denied that he was ever paid more than $50.00 for assisting with the application for the protection visa, or that he made any demands for outstanding amounts of money. He also specifically denied saying to the applicant:
a)“Don’t worry, I will be getting your letters from the Tribunal and I will contact you”;
b)“You still have not paid my balance money, but your case was dismissed by the Tribunal;
c)“Forget it. Don’t call me again and I won’t do anything for you any more”.[11]
[11] Affidavit of J. Ratuvou 23.2.2009 at [9]
Mr Ratuvou was cross examined by the applicant’s solicitor, Mr Silva. He asserted that he had received letters from the Department of Immigration and Multicultural Affairs acknowledging receipt of the application for a visa[12] and seeking his comments on certain adverse information[13]. He said that he had passed those letters on to the applicant. Similarly, he confirmed that he had received the Department’s letter of 24th August 2001 advising that the application for a protection visa had been refused along with the delegate’s Decision Record[14] and he had given those documents to the applicant.
[12] Court Book 27-28
[13] Court Book 29-30
[14] Court Book 41-46
Mr Ratuvou specifically stated that he had given a copy of the Tribunal’s hearing invitation[15] to the applicant. He said that when he received a call from the Tribunal he tried to contact the applicant, without success. He tried to contact him on many occasions.
[15] Court Book 56-57
He was adamant that he had told the applicant that he had to attend the hearing even though the applicant said that he did not want to attend.
The Applicant’s Submissions
Mr Silva, who appeared for the applicant, submitted that there were some aspects of Mr Ratuvou’s evidence that could not be true. As an example, it simply could not be true that the applicant had paid only $50.00 to Mr Ratuvou and Mr Ratuvou did not demand the outstanding money.
He submitted that there were some aspects of Mr Ratuvou’s evidence about the invitation to the Tribunal hearing that raised serious questions about his credibility. Mr Ratuvou could have called the Tribunal and said that he could not contact the applicant. He urged the Court to accept the version of events given by the applicant.
Mr Silva submitted that even if Mr Ratuvou’s conduct was not deliberately fraudulent it was reckless. As a migration agent, he had a duty both to the Tribunal and to the applicant. There were repeated calls and reminders from the Tribunal about the hearing, three times in one month. Mr Ratuvou’s failure to return the Tribunal’s phone calls shows either deliberate fraud or recklessness.
As to the question of fraud, Mr Silva referred to the decision of Finkelstein J in SZIVK v Minister for Immigration and Citizenship[16] at [32]-[34]. He submitted that:
i)It is not necessary for the applicant to demonstrate that the agent said anything false or to explain the reason for the agent’s behaviour, such as that the agent did it for self-protection;
ii)Fraud can take many forms and it depends on the circumstances; and
iii)False information even given recklessly is sufficient.
[16] [2008] FCA 334
Mr Silva submitted that the applicant’s complaint is not about what the agent did but what he failed to do – fraudulent omissions. It was, he submitted, more than mere negligence. There were three features to these fraudulent omissions:
i)Not responding to the hearing invitation;
ii)Not informing the applicant; and
iii)Not responding to the Tribunal’s telephone inquiries on two separate days.
The Tribunal appears to have assumed that the applicant was informed about the hearing, that he deliberately did not attend and that he did not contact the Tribunal to explain his circumstances.[17]
[17] Court Book 66
It was submitted that there was a factual basis for a finding of fraud, based on:
i)The former migration agent behaved in a manner that lead the Tribunal to believe that the applicant was informed by the agent and declined to attend the hearing, whereas the applicant did not know that there was a hearing;
ii)Mr Ratuvou behaved in a manner that led the applicant to believe that he was still acting for him and would inform the applicant if there was an invitation to attend a hearing;
iii)The agent misled the Tribunal and frustrated the operation of the Migration Act in that the Tribunal was not able to conduct a hearing as required by s 425 of the Act; and
iv)The agent knew the consequences of non-attendance by the applicant at the hearing, that it would be fatal to his application.
Mr Silva referred to the decision in Minister for Immigration and Citizenship v SZLIX[18], where the Full Court of the Federal Court (Tamberlin, Finn and Dowsett JJ) held:
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[19] at [51].[20]
[18] (2008) 245 ALR 501; [2008] FCAFC 17
[19] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; 96 ALD 510; [2007] HCA 35
[20] (2008) 245 ALR 501; [2008] FCAFC 17 at [33]
Further, the applicant’s solicitor referred to the decision of Branson J in SZLHP v Minister for Immigration and Citizenship[21], where her Honour referred to the High Court decision in SZFDE[22] at [10]:
Their Honours stated at [49] that the fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. At [51]-[52] the High Court summarised the position in the following way:
…In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review.[23]
[21] [2008] FCAFC 152
[22] supra
[23] [2008] FCAFC 152 at [10]
Mr Silva referred to the finding of the High Court in SZFDE v Minister for Immigration and Citizenship[24] at [41]:
[24] supra
In the Full Court French J properly observed (71):
“The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon.
He submitted that the fraudulent omissions were:
a)Not informing the applicant about the Tribunal hearing;
b)Not responding to the Tribunal’s queries; and
c)Not sending the Response to Hearing invitation back to the Tribunal.
As to how the agent’s conduct was fraudulent, Mr Silva submitted:
a)In these alternative formulations:
i)Deliberately withholding information where he had a duty to inform, knowing the resultant harm to the applicant;
ii)Deceiving the applicant by denying him knowledge of the hearing and allowing him to hold the false belief that there was no hearing on 26th August 2002; or
iii)Impliedly misrepresenting to the applicant that there was no hearing on that date;
b)Allowing the Tribunal to believe falsely that the applicant was informed by the agent but that he did not want to attend the hearing;
c)Allowing the Tribunal to believe falsely that the applicant was not interested in a hearing.
Further, as to how the fraud was acted upon, he submitted;
a)It was acted upon by the applicant in not attending the hearing and by the Tribunal in dismissing the application; and
b)It was acted upon by the Tribunal in not rescheduling another hearing and by proceeding to make a decision adverse to the applicant.
On the issue of delay in seeking a remedy, Mr Silva referred the Court to the decision of the Full Court of the Federal Court in SZKNX v Minister for Immigration and Citizenship[25] at [17]-[23] and submitted that it is clear from all the authorities referred to in that decision (WACB v Minister for Immigration and Multicultural and Indigenous Affairs[26]; Minister for Immigration and Citizenship v SZKKC[27]) that until the applicant is given a copy of the decision the time does not start to run for the purposes of s 477 of the Migration Act.
[25] [2008] FCAFC 176
[26] (2004) 210 ALR 190; 79 ALJR 94; [2004] HCA 50
[27] (2007) 159 FCR 565; [2007] FCAFC 105
It was submitted that there was no delay by the applicant in seeking relief in the matter under review, and that the decision in SZKNX should be distinguished on the facts. The reason why SZKNX should be distinguished, he submitted, was that, although in each case the applicant had applied to the Minister for the exercise of the Minister’s discretion under s 417 and referred to the Tribunal decision, in SZKNX a different migration agent had been involved and that led the Court to hold that the applicant himself gave the copy of the Tribunal decision to the new agent.
In the current matter, the letter to the Minister, dated 18/12/2002, was written by Mr Ratuvou himself and makes very little reference to the Tribunal decision. Rather, it dwells extensively on the migration agent’s own experiences when he visited Fiji earlier that same year and other matters of peripheral relevance to the applicant’s case.[28] Mr Silva submitted that the letter and the circumstances generally did not demonstrate that the applicant had access to a copy of the decision at that time.
[28] Court Book 79-82
He submitted that the applicant did not receive a copy of the Tribunal decision in the post and that the migration agent did not give him a copy. As he only received a copy of the decision on 21st November 2008, that is the date that he was notified. As he made his application to the Court on 4th December 2008 his application was within time and there was, therefore, no delay.
The First Respondent’s submissions
Counsel for the Minister, Mr Smith, submitted that:
a)There was no proof of any deliberate omission by the agent;
b)Any dishonesty on the agent’s part cannot have vitiated the Tribunal’s procedure because the Tribunal had also sent an invitation to the hearing to the applicant at the address given by him in his application as his home address; and
c)In the alternative, the application should be dismissed in the exercise of the Court’s discretion because the applicant provided no satisfactory explanation as to why it took him 6 years to apply for judicial review of the Tribunal’s decision.
Mr Smith submitted that it is not necessary, in the light of the grounds raised in this application, to consider the reasons for the Tribunal’s decision in any detail. One of the reasons was that the Tribunal was not given the opportunity to examine the applicant’s claims with him in greater detail and so found his claims not to be sufficiently detailed to be credible.[29]
[29] Court Book at 73-74
As to the law to be applied, Mr Smith referred the Court to the decision in SZFDE[30], where the High Court warned:
In the Full Court[31]French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has 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.[32]
[30] supra
[31] Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 399
[32] (2007) 232 CLR 189; 237 ALR 64; 96 ALD 510; [2007] HCA 35
The serious nature of an allegation of fraud requires the Court to have regard to the principles in Briginshaw v Briginshaw[33] and s. 140(2) of the Evidence Act 1995. The inference to be drawn from the established facts upon the evidence is that which is the most probable deduction (Holloway v McFeeters[34] at 477).
[33] (1938) 60 CLR 336
[34] (1956) 94 CLR 470
Fraud is not to be found simply on the basis of what should properly be characterised as bad or even negligent advice or conduct (see SZHBC v Minister for Immigration and Citizenship at [17]-[18]; SZHZT v Minister for Immigration and Citizenship[35] at [3], [11] and [12]; SZFNX v Minister for Immigration and Citizenship[36] at [31]-[33]; SZHVM v Minister for Immigration and Citizenship[37] at [43]).
[35] [2007] FCA 1661
[36] [2007] FCA 1980
[37] [2008] FCA 600
It was submitted that there was no basis in the evidence for any finding that any omissions by the agent amounted to anything more than negligence.
On the exercise of the Court’s discretion to grant relief, Mr Smith submitted that the power to grant relief in these proceedings is discretionary (Re Refugee Review Tribunal; Ex parte Aala[38]; s. 16 of the Federal Magistrates Act 1999). That discretion must be exercised with regard to the scope, context and object of the power.
[38] (2000) 204 CLR 82; 176 ALR 219; 75 ALJR 52; [2000] HCA 57
The Migration Act discloses a legislative intent that the process of determining claims for protection visas should proceed expeditiously (Minister for Immigration and Citizenship v SZIQB[39]). It was submitted that there was no explanation, other than the fact that the applicant had made requests to the Minister for the exercise of the Minister’s discretion under s. 417 of the Act, for the delay. Even discounting the time taken for the s. 417 applications (see Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[40] at [8]-[10]; Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[41]: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs[42]), there remain, he submitted, five years unaccounted for. In the absence of any explanation, such a significant period justifies the exercise of the Court’s discretion to refuse relief.
[39] [2008] FCAFC 20
[40] [2003] FCA 576
[41] [2003] FCA 1266
[42] [2004] FCA 451
Conclusions
An allegation of fraud is a serious matter and should not be made lightly. The Court must, when considering such an allegation , be conscious of the standard of proof set out in s. 140 of the Evidence Act:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In this case, the applicant claims that He arrived in Australia in 1997 but he only applied for a protection visa in 2001. He claims that he enlisted the services of Mr Ratuvou, who was then a migration agent, and paid him a deposit on the quoted fee. After he was notified that his application for a visa had been refused, the agent advised him to apply to the Refugee Review Tribunal for a review of that decision.
The applicant claims that he paid Mr Ratuvou half of the quoted fee. He gave a friend’s address as his residential address and the agent assured the applicant that he would contact him.
The applicant further claims that he kept asking the agent about his case but all the agent told him was that he should pay the balance of the money that he owed. Eventually, the agent telephoned him in December 2002 and told him that his case was dismissed.
It is the applicant’s case that he never received any documentation from the Tribunal after he applied. He also claimed that his friend whose address he sued never sent him any mail. He claimed that the agent did not give him any documents.
Against this, the agent claims that he did give documents from the Tribunal to the applicant, particularly the Tribunal’s hearing invitation and a copy of the Tribunal decision. He claimed that he told the applicant that he had to attend the Tribunal hearing but the applicant said that he did not want to go.
The agent agreed that he had received a message that the Tribunal had called to speak to him about the applicant’s case but he said that he never returned the Tribunal’s call because he was unable to contact the applicant.
The agent denied that he ever made demands for any money that the applicant owed to him or that he withheld from the applicant information about the Tribunal hearing.
After having heard the evidence of both the applicant and the former migration agent and observed their demeanour in the witness box, I am of the view that the evidence of each one was unsatisfactory. I was not satisfied that either one was giving an entirely credible account of the circumstances. Even if I were to accept the agent’s evidence entirely, it would still show that his performance of the role of migration agent was less than satisfactory.
The Court Book shows that the applicant applied for a protection visa on 1st August 2001[43]. In his application he gave an address of 16 Bridge Street, Cabramatta, NSW, as his residential address.[44] He disclosed that Mr Ratuvou, a registered migration agent, had helped him to complete the application form.[45]
[43] Court Book 1
[44] Court Book 2
[45] Court Book 19
The Department of Immigration and Multicultural Affairs wrote to the applicant at the Cabramatta address on 2nd August 2001, acknowledging receipt of his application for a visa.[46] The applicant concedes that he received that letter.[47]
[46] Court Book 27-28
[47] Applicant’s affidavit filed 6 February 2009, paragraph 7 and Annexure B
The Department wrote to the applicant at the Cabramatta address on 7th August 2001, seeking his comments on certain information.[48]
[48] Court Book 29-30
The applicant authorised Mr Ratuvou to act and receive communications on his behalf and that document was received by the Department on 10th August 2001.
On 20th August 2001 the Department received a statutory declaration signed by the applicant on 11th August 2001.[49]
[49] Court book 38-40
The Department wrote to the applicant at the Cabramatta address on 24th August 2001, advising him that his application for a visa had been refused.[50] The applicant concedes that he received that letter and took it to Mr Ratuvou.[51]
[50] Court Book 41-43
[51] Applicant’s affidavit filed 6 February 2009 at paragraph 7
The applicant applied to the Refugee Review Tribunal on 25th September 2001, giving the same address, 16 Bridge Street, Cabramatta, as his residential address and nominating Mr Ratuvou as his authorised recipient.[52]
[52] Court Book 50-51
The Tribunal wrote to the applicant, care of Mr Ratuvou on 26th September 2001, acknowledging receipt of the application, with a copy to the applicant.[53]
[53] Court Book 54-55
The Tribunal wrote to the applicant, care of Mr Ratuvou, with a copy to the applicant, on 31st July 2002, inviting him to attend a hearing on 26th August 2002.[54]
[54] Court Book 56-57
A Tribunal officer completed a checklist headed “no Reply to Hearing Invitation s 424 or 424A letter” on 23rd August 2002.[55] The checklist states (relevantly):
Contacted adviser for more recent address (& record placed on file) Adviser unavailable – to call back ASAP.[56]
[55] Court Book 58
[56] Ibid
The hearing invitation sent to the applicant at the Cabramatta address was returned unclaimed to the Tribunal on 27th August 2002.[57]
[57] Court Book 59-61
The Tribunal wrote to the applicant and Mr Ratuvou on 28th October 2002, advising that the decision would be handed down on 14th November 2002.[58]
[58] Court Book 62-63
The Tribunal handed down its decision on 14th November 2002 and forwarded a copy to Mr Ratuvou that same day.[59]
[59] Court Book 64
The Tribunal’s file note states that the same officer who attempted to call Mr Ratuvou on 23rd August 2002 telephoned again on 29th August, again without success:
29.8.02 Rang adviser re COA applicant. No response to phone call.[60]
[60] Court Book 76
On 18th and 19th December 2002, Mr Ratuvou forwarded the following documents to the then Minister for Immigration and Multicultural Affairs:
a)A covering letter dated 19/12/02 advising that Mr Ratuvou was acting for the applicant;[61]
b)A form 956 “Authorisation of person to act and receive communication dated 18/12/02 signed by the applicant and authorising Mr Ratuvou to act for him;[62]
c)A letter to the Minister requesting him to exercise his discretion under s. 417 of the Act in favour of the applicant.[63]
[61] Court Book 77
[62] Court Book 78
[63] Court Book 79-82
On 12th May 2003 the Ministerial Intervention Unit wrote to Mr Ratuvou, advising that the Minister had decided not to consider exercising his power under s. 417.[64]
[64] Court Book 83
On 28th April 2008, the applicant wrote to the current Minister, seeking permanent residence. The letter said (relevantly);
First of all, I would like to apologise for being living illegally in this country for the last couple of years.
I had applied under a Refugee on my first application through an immigration agency but I had not received any results regarding my application, therefore I would like your department to please review my case because I would like to live in Australia as a Permanent Residence under Refugee due to the circumstances in Fiji at the moment.
Once again I would like to seek forgiveness regarding my status.[65]
[65] Court Book 84
This is not a case about whether or not Mr Ratuvou was a competent migration agent. It is not a case about whether or not he was negligent or inefficient. What the Court has to decide is whether he committed a fraud on the applicant and on the Tribunal so that the operation of the legislative scheme established under ss. 425 and 426A was stultified.
The fraud alleged is that Mr Ratuvou did not tell the applicant about the invitation to the Tribunal hearing, that he did not respond to the Tribunal’s telephone inquiries, and that he did not return the Response to Hearing Form to the Tribunal. Those allegations are not admitted by Mr Ratuvou.
The motive for the fraud, if fraud there was, is that the applicant owed Mr Ratuvou money.
There appears to be no doubt that the applicant owed Mr Ratuvou money, but as to how much he owed the evidence is not sufficient to show.
The applicant claimed that because he was moving around from place to place at the time he gave a friend’s address at Cabramatta as his residential address but the friend did not forward any mail to him. It is quite clear from the documents in the Court Book that the applicant always used the address in Cabramatta as his residential address and he concedes that he received mail from the Department at that address.
The applicant used that address as his residential address when he applied to the Refugee Review Tribunal and nominated Mr Ratuvou as his authorised recipient.
He claimed that he went to Queensland from about October 2001 until about April 2002 and did not hear from Mr Ratuvou or the Tribunal during that time. He said in cross-examination that his friend was no longer living at the address in Bridge Street Cabramatta by April 2002. He also said that Mr Ratuvou was not returning his calls. Nevertheless, he said that he believed that if there was any letter from the Tribunal then Mr Ratuvou would still bring it to him because he believed that Mr Ratuvou was still acting for him. He did not advise the Tribunal of his change of address because he believed that it was Mr Ratuvou’s duty to that.
This is a very difficult claim to believe. If the applicant had any concerns about Mr Ratuvou, he was doing nothing about them.
Against this, Mr Ratuvou claims that he did inform the applicant about the hearing but the applicant said that he did not want to attend.
On the applicant’s account, he only found out in December 2002 that he had missed attending the hearing because Mr Ratuvou had not told him about it. Clearly, on his own evidence, the applicant knew in December 2002 that there had been a Tribunal decision affirming the delegate’s decision not to grant him a protection visa.
Nevertheless, he still authorised Mr Ratuvou to apply to the Minister for the exercise of his discretion on 18th December 2002. This is a most unlikely thing to have done if, as he claims, the agent had deliberately withheld from him the advice about the Tribunal hearing, which had had led to his being unsuccessful.
The applicant’s second letter under s 417, dated 28th April 2008, indicates on the one hand a consciousness that he had been living in Australia without benefit of a visa for “the last couple of years” (over five years, in fact), but on the other hand claimed that he had previously applied through an agent but “had not received any results” regarding his application. This was plainly not true. The applicant was asked about this in cross-examination and, whilst admitting that that part of the letter was incorrect, denied it was a lie and blamed the lady who helped him write the letter.
I do not accept the applicant as a truthful witness.
The evidence of Mr Ratuvou also left much to be desired. He admitted that he knew about a telephone call from the Tribunal but he never returned that call because he did not know where the applicant was. That is an unsatisfactory state of affairs. A responsible migration agent would have telephoned the Tribunal to advise that he could not contact his client.
I am not satisfied that a failure to return a telephone call from the Tribunal amounts to evidence of fraud.
I am not satisfied that a failure to return the Response to Hearing Invitation amounts to evidence of fraud. On Mr Ratuvou’s evidence, he did not know how to contact the applicant or the applicant had said that he did not want to attend the hearing. If the latter explanation is true, then Mr Ratuvou should have asked the applicant to sign the Response advising that he did not want to attend the hearing. Instead, he seems to have done nothing.
However, whilst Mr Ratuvou’s evidence was unsatisfactory and, at best, he seems to have behaved in a less than competent manner, this falls far short of evidence of fraud.
No matter how unsatisfactory Mr Ratuvou’s evidence may be, it will not assist the applicant unless I am satisfied that his evidence can be accepted. I do not accept his evidence and I believe that he has been untruthful.
The Tribunal affirmed the delegate’s decision because the evidence was insufficient to show that the applicant had a well founded fear of persecution for a Convention reason. That is so often the case where an applicant does not attend a Tribunal hearing.
The Tribunal advised the applicant of the hearing in writing, both by writing to the applicant’s authorised recipient and by writing to the applicant’s last residential address provided to the Tribunal by the applicant in connection with the review. The Tribunal clearly complied with the requirements of s 425A and 441A of the Act.
No jurisdictional error appears in the Tribunal decision.
It is hardly necessary, in the light of the above findings, to consider the question of declining to grant relief in the exercise of the court’s discretion because of the applicant’s unwarrantable and unexplained delay in applying for judicial review.
However, it is clear on the evidence, including the applicant’s own evidence, that he was aware by December 2002 that his application for review had been refused by the Refugee Review Tribunal. However, he did not apply to this Court for judicial review until 4th December 2008, a delay of nearly six years.
In my view, the applicant’s approach to the Minister seeking the exercise of the Minister’s discretion under s. 417 of the Migration on two occasions, in December 2002 and April 2008, does not constitute an acceptable explanation for any of his delay in commencing proceedings (see Vu v Minister for Immigration and Citizenship[66] per Jessup J at [29]).
[66] [2008] FCAFC 59
In any event, the applicant has not made out his allegation of fraud by the migration agent.
The application will be dismissed with costs.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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