SZOGX v Minister for Immigration
[2010] FMCA 508
•8 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOGX v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 508 |
| MIGRATION – Review of RRT decision – where applicant claimed he did not receive hearing invitation until after Tribunal’s decision – where applicant alleged third party fraud on account of mail being redirected without his consent – whether jurisdictional error. |
| Migration Act 1958 (Cth), s.426A |
| SZFDE v Minister for Immigration [2007] HCA 35 Briginshaw & Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Qantas Airways Limited v Gama [2008] FCAFC 69 |
| Applicant: | SZOGX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 651 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 8 July 2010 |
| Date of Last Submission: | 8 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2010 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 651 of 2010
| SZOGX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia on 19 August 2009 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 28 September 2009. On 18 December 2009 a delegate of the Minister refused to grant a protection visa. On 15 January 2010 the applicant applied for review of the delegate’s decision from the Refugee Review Tribunal.
On 15 January 2010 the Tribunal sent to the applicant, by registered post at the address given by him as his address for service, a letter informing him that it had received his review application and asking him to tell the Tribunal immediately if he changed his contact details such as:
“ ... your home address, your mailing address, your telephone number, your fax number or your email address.”
The applicant did not advise the Tribunal of any change of address.
On 28 January 2010 the Tribunal wrote to the applicant, again by registered post, inviting him to a hearing on 25 February 2010. There was no response to that hearing invitation and the applicant did not appear at the date and time set down for the hearing.
On 25 February 2010 the Tribunal made its decision affirming the decision of the delegate not to grant a protection visa. The Tribunal had invoked the provisions of s.426A of the Migration Act 1958 (Cth) (the “Act”) to proceed in the absence of the applicant given that he had not applied for a postponement of the hearing, had not acknowledged a hearing invitation and had not appeared. The Tribunal concluded that in the absence of any evidence from the applicant his claims to be a person to whom Australia owed protection obligations could not be substantiated to the extent that the Tribunal was satisfied that he was such a person. It is irrelevant for the purposes of these reasons to go into the applicant’s claims.
The evidence reveals that on 9 March 2010 the applicant attended at the Tribunal. There is a file note which states:
“Call from reception. Mr Applicant is at reception. He advises that he did not receive the hearing letter. He has the letter with him at the counter but is saying that he did not receive it in time. Reception is saying someone would need to speak with him with an interpreter. As the case is finalised I referred to registered migration agent or immigration legal advice.” [CB 72]
On 18 June 2010 the applicant filed an amended application under the Act through a firm of solicitors who provided advice to him under the Panel Scheme. The grounds of the application were:
“1. The second respondent committed jurisdictional error by failing to comply with mandatory provisions of the Act, being Division 4 of Part 7 of the Act and in particular ss425 and 426A.
Particulars:
(a) the applicant alleges that:
·Throughout the time he had an appeal before the Second Respondent he resided at 2/42 Dartbrook Road, Auburn, New South Wales.
·In about January 2010 the applicant’s mail was redirected to PO Box 421, Pendle Hill, New South Wales, 2145 by Imran Khan. Imran Khan redirected the applicant’s mail without his knowledge or consent.
·At no time did the Applicant complete or sign a form issued by Australia Post requesting that or authorising his mail to be redirected.
·At some time after 25 February 2010 and before 9 March 2010 Imran Khan delivered to the Applicant by hand correspondence from the Second Respondent, being both an Invitation to Appear Before the Tribunal dated 28 January 2010 and Notification of Decision dated 25 February 2010.
·The Applicant did not receive the Second Respondent’s Invitation to Appear Before the Tribunal until after the Tribunal had made its decision which is the subject of this appeal.
(b) The Second Respondent acted on the assumption that the Applicant had received its Invitation to Appear Before the Tribunal prior to 25 February 2010. On account of the fraud or misconduct of a third party the Second Respondent inadvertently failed to discharge its statutory duty. By consequence the Second Respondent’s decision is no decision at all in law. The Applicant relies on the authority of SZFDE v Minister for Immigration and Citizenship and Refugee Review Tribunal [2007] HCA 35 2 August 2007.”
The grounds quoted above adequately encompass the issues that were before the court today. The applicant gave evidence. He also produced Exhibit 1 which was an envelope that contained the acknowledgement of application dated 15 January 2010 [CB 55]. The letter is marked registered post but it does have on it a stamp which clearly shows that it is part of redirected mail and that the applicant’s true name (the forename perhaps spelt wrongly) appears, as does the PO box which is referred to in the application.
I am satisfied from the evidence that the applicant’s story that the mail was the subject of a redirection is correct. However, I am not satisfied of other matters with which I would need to be satisfied if I was to apply the dicta of the High Court in SZFDE v Minister for Immigration [2007] HCA 35 (“SZFDE”). That case is authority for the proposition that a fraud upon an applicant can constitute jurisdictional error in the absence of any wrongdoing by the Tribunal. But, it is very important to note that the High Court approved of observations made by French J, as he then was, in dissent in the Full Court decision. It noted that French J had observed at [58]:
“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. The finding of fact that the magistrate made however was not challenged in these proceedings.”
The court also noted that the ultimate issue was:
“The effect upon the Tribunal's decision-making process, for which the Parliament provided in Pt 7 of the Act, of the fraud of Mr Hussain.”
It appears that in SZFDE whilst there was some concern about the original finding of fraud by the Federal Magistrates Court, it was accepted that the constituents of a fraud could be found in the evidence and upon properly made inferences. In the instant case I am unable to do this. There is no evidence whatsoever before me that Mr Khan (if it was he and not the applicant himself) made the redirection order to the post office which caused the alleged delay in receipt of the document for any reason that could be described as “fraudulent.”
Certainly the applicant has not given any indication as to what was fraudulent about it or how it was fraudulent. Indeed, he said to me in response to a direct question on whether Mr Khan made the redirection order deliberately to avoid documents such as this getting to the applicant “that he could not say that.” At [53] in SZFDE the High Court says:
“The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court 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[66]. The outcome in the present appeal stands apart from and above such considerations.”
Any finding of fraud on the part of Mr Khan would need to be made with regard to the standard adumbrated in Briginshaw & Briginshaw [1938] HCA 34; (1938) 60 CLR 336 as explained by Branson J (with whom French and Jacobson JJ agreed) in Qantas Airways Limited v Gama [2008] FCAFC 69.
Accepting, for the purposes only of this part of the decision that the applicant did not receive the documentation, and that it was Mr Khan and not the applicant who ordered the redirection, and that the applicant was so ignorant of the redirection that he did not go along to the post office to collect his mail, it can still not be said that this was anything more than another mishap, albeit through no fault of the applicant, but certainly not one that was so redolent of fraud that it should vitiate the Tribunal’s decision.
I think it is important that I should also make it clear that I cannot really be satisfied, on the balance of probabilities, that the applicant did not receive the documents. I say this because it is quite clear that he received the letter of 15 January. He gave some evidence and was cross-examined about this but the evidence that he gave and the answers to cross-examination were so confused that they did not convince me again, on the balance of probabilities, that this letter had come to him later than 25 February or that it was only after 25 February (that being the date of the Tribunal hearing) that he was aware of the post office box. If the applicant was aware, as he may well have been, of the post office box then it was no one’s fault but his that he did not regularly check it and obtain the Tribunal’s hearing invitation.
Likewise, I have only the applicant’s evidence that it was Mr Khan and not him who called for the redirection of the mail to the post office box. He was questioned both by myself and by Ms Rayment, who appears for the Minister, as to what occurred after he allegedly first found out about the post office box and whether he had obtained any documentation from the post office indicating that he had no part in the setting up of this redirection. He said that he went to the post office immediately and cancelled the redirection so far as he was concerned but he did not give any satisfactory response to questions about why he had not obtained from the post office some documentation that might have gone to corroborating his evidence that it was not he who had arranged for the post office box to be created. Likewise, there was no evidence from Mr Khan who the applicant says was a friend of his and who lived with him for some time.
Because I am unable to be satisfied that the applicant was not aware of the existence of the post office box and, more importantly, because I am not satisfied that any fraud was involved, the applicant cannot bring himself within the provisions of that very restricted judgment in SZFDE. I am satisfied that the Tribunal complied with the statutory requirements for the making of the invitation and the sending of it. These requirements are set out in detail in the helpful written submissions of the respondent and are well known to persons hearing these cases both at first instance and on appeal. I do not believe that it is necessary to set them out once again in these reasons.
Having read the decision of the Tribunal I am also satisfied that it cannot be impugned for wrongful utilisation of the procedures provided under s.426A of the Act. In all those circumstances there are no grounds upon which the applicant can say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $3,700.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 14 July 2010
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