SZOVX v Minister for Immigration
[2011] FMCA 314
•19 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOVX v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 314 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – application for extension of time – whether applicant’s migration agent committed fraud – whether fraud vitiated Tribunal’s review process – whether in the interests of administration of justice – where applicant sought Ministerial intervention – application to extend time not made out – substantive application dismissed as not competent. |
| Migration Act 1958 (Cth), ss.36, 48A, 417, 476, 477 Migration Legislation Amendment Act (No 1) 2009 (Act No. 10 of 2009) (Cth), Sch.2 |
| SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Judicial Review of Administrative Action, Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action – Fourth Edition, Lawbook Co., Thomson Reuters, Sydney, 2009 |
| Applicant: | SZOVX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2693 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 28 March 2011 |
| Date of Last Submission: | 28 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2011 |
REPRESENTATION
| Appearing for the Applicant: | Mr M Fozzard |
| Solicitors for the Applicant: | Vassili Fozzard Lawyers & Consultants Pty Limited |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application to extend time pursuant to s.477(2) is dismissed.
The application made on 13 December 2010 is dismissed as not competent.
The applicant to pay the first respondent’s costs as agreed or pursuant to r.21.02(2)(c) of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2693 of 2010
| SZOVX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The issue in this case is whether the Court should extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) such that the applicant can competently make her application to this Court.
Background
The applicant is a national of the People’s Republic of China (“China”), who arrived in Australia as a “business visitor” on 24 August 2001 (See Court Book – “CB” – CB 3). She applied for a protection visa on 24 September 2001 (CB 1 to CB 34 with annexures). She was assisted by a migration agent: Mr Simon Feng (CB 24).
Following the refusal of this application on 8 November 2001 (CB 50 to CB 58), the applicant applied for review to the Refugee Review Tribunal (“the Tribunal”) in December 2001 (CB 59 to CB 62). She appeared to have been assisted by another migration agent, Mr Xin Cai Chen (CB 60).
The following matters before the Tribunal are relevant:
1)On 4 November 2002 the Tribunal invited the applicant to a hearing on 19 December 2002 (CB 70 – CB 71). This invitation was sent to Mr Chen and to the applicant. It appears the letter to the applicant was returned as “unclaimed” (CB 85).
2)On 11 November 2002 the Tribunal received a “negative” response from the applicant’s “adviser” (in context, this appears to be Mr Chen (CB 86)). The Tribunal understood this to mean that the applicant did not wish to attend the hearing and that the Tribunal was to proceed “on the papers” (CB 80.8).
3)On 12 November 2002 the Tribunal “signed” its decision record affirming the delegate’s decision (CB 78 to CB 82).
4)This was sent to the applicant’s “authorised recipient” as previously notified (Mr Chen), and to the applicant, under cover of a letter dated 10 December 2002.
In addition to the Court Book, the following was read into evidence before the Court:
1)The applicant’s affidavit of 12 December 2010, with annexures (some objections upheld).
2)The applicant’s affidavit of 10 February 2011 (no objections).
3)The applicant’s affidavit of 4 March 2011 (no objections).
4)Two affidavits of Joseph Borg, solicitor, of 13 December 2010 ([14] of the “first” of the affidavits not pressed, otherwise no objections).
5)The affidavit of Simon Feng of 25 February 2011 (no objection).
6)The affidavit of Xin Cai Chen of 25 February 2011 (no objection).
7)Respondent’s Exhibit 1 (“RE1”).
The following, as emerging from the above, is also relevant:
1)A letter dated 4 January 2003, and bearing the applicant’s signature, was sent to the then Minister for Immigration, requesting he exercise his power pursuant to s.417 of the Act to grant the applicant a visa (Applicant’s affidavit of 13 December 2010 – Annexure “K”; Applicant’s affidavit of 10 February 2011 at “L”).
2)The applicant was advised on 26 June 2003 that the Minister would not intervene ([43] of the applicant’s affidavit of 10 February 2011; [24] of the applicant’s affidavit of 12 December 2010).
3)In 2009 the applicant sought the assistance of Ms M Byers of Migration Education Services Pty Ltd. Another letter was sent to the then Minister requesting intervention pursuant to s.417 of the Act (Applicant’s affidavit of 11 February at [47 ] to [51]).
4)The applicant was notified of the outcome by letter dated 31 May 2010 (Annexure “M” to the affidavit of 11 February).
5)The applicant consulted Mr Borg on 21 August 2010. He continues to represent the applicant before the Court (applicant’s affidavit of 11 February at [52]; Mr Borg’s affidavit of 13 December 2010).
6)The application to this Court was made on 13 December 2010.
The applicant seeks remedies pursuant to the exercise of this Court’s jurisdiction pursuant to s.476 of the Act.
Application to the Court
The application contains three grounds asserting jurisdictional error in relation to the Tribunal’s decision. This is said to be because of fraud on the part of her migration agent. While the grounds and the particulars focus on three different aspects, the critical issue arising from the grounds was whether the process before the Tribunal, and the Tribunal’s decision, was vitiated by the fraud of her migration agent, Mr Feng, in the way explained in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”).
Before the Court
Before the Court the applicant was ultimately represented by Mr M Fozzard. The respondent was represented by Mr A Markus.
The Competency of the Application to the Court
Section 477(1) of the Act provides that an application for the exercise of the Court’s jurisdiction pursuant to s.476 of the Act must be made to the Court within 35 days of the date of the Tribunal’s decision. The date of this Tribunal decision, given relevant provisions at the appropriate time, is the date of the handing down of the decision. This was 10 December 2002 (CB 73, and see CB 75 to CB 78).
The current version of s.477 became operational on 15 March 2009 (Sch.2, Migration Legislation Amendment Act (No 1) 2009 (Act No. 10 of 2009) (Cth)). By way of transitional arrangements, the date of Tribunal decisions made before that date are, for the current purposes of s.477(1), said to be treated as if made on 15 March 2009.
The date for the making of this application therefore was 35 days after 15 March 2009. That is, by 19 April 2009. As the application was made on 13 December 2010, it was well over 19 months out of time.
The time for the making of the application may be extended pursuant to s.477(2) if the Court considers it appropriate to do so. Section 477(2) provides that the extension may be granted where the applicant applies for any such extension in writing (s.477(2)(a)), and where the Court considers that it is in the interests of the administration of justice to do so (s.477(2)(b)).
The applicant has made such an application in writing and pleads that it is in the interest of the administration of justice to do so because the applicant “feared for her safety” and she received “incorrect and fraudulent migration advise” [sic: advice].
There are a number of factors relevant to the consideration of the exercise of the Court’s discretion in this regard. These relevantly include the extent of the delay and in particular whether any satisfactory explanation for the delay exists, any prejudice to the parties, the merits of the application to the Court including the prospects of success, and the interests of the Australian community (see generally SZNZU v Minister for Immigration [2010] FMCA 197, SZMFJ v Minister for Immigration [2009] FMCA 771, and SZNZI v Minister for Immigration [2010] FMCA 57).
The Tribunal’s decision was made on 10 December 2002. For the purposes of s.477(2) (as opposed to s.477(1)), the applicant’s conduct from the actual time of the Tribunal’s decision, and more particularly when the applicant became aware of it, is relevant as to whether it is in the interests of the administration of justice to extend the time (SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 (“SZGME”) at [48]).
The applicant’s own evidence before the Court is that the applicant knew of the Tribunal’s decision at least sometime in January 2003.
In terms therefore of the applicant’s conduct and intentions, that should be the starting point for considering the delay involved.
Mr Markus submitted that the Minister would not press as an unexplained delay the period from which the applicant first consulted her current solicitor, Mr Borg, to when she made the application to the Court. I accept the evidence of Mr Borg that he advised the applicant on or about 21 August 2010 to pursue judicial review. The applicant’s conduct since that time has been consistent with that advice (see Mr Borg’s affidavit of 13 December 2010 at [11]).
The period of delay therefore is from January 2003 to 21 August 2010. A period of well over seven and a half years.
The applicant’s explanation for this delay is that her migration agent, Mr Feng, did not serve her best interests in the advice that he gave her. She relied on this advice, and her delay in coming to this Court to seek review of the Tribunal’s decision was a direct result of the acceptance of that advice. It was not until she consulted Mr Borg that she realised that her trust in Mr Feng had been misplaced. Her conduct therefore can be explained in that light.
Consideration
In essence, the applicant relied on what she asserts to be the continuing fraudulent conduct of Mr Feng, and that this vitiated the process before the Tribunal such as to reveal jurisdictional error. This was said with SZFDE in mind.
The agent’s fraudulent conduct was said to be manifest in a number of ways.
First, the allegation is that, in submitting the application for a protection visa, the migration agent drafted the claims to protection without those claims being based on instruction from the applicant. Further, that what was claimed was not a “true account” of the applicant’s experiences, nor representative of her actual claims.
Second, that on or about 9 November 2002 (at a time well after Mr Feng’s registration as a migration agent had not been renewed) he told her not to go to a hearing with the Tribunal to which she had been invited. Her evidence is that Mr Feng told her not to go as her case was “hopeless” and she could be detained by the Minister’s department.
Third, that Mr Feng advised her (on or about 12 December 2002, again well after he was no longer a registered migration agent) to write to the Minister to seek his intervention (pursuant to s.417 of the Act). That the contents of the letter to the Minister were not explained to her by
Mr Feng. She believed at the time that the letter contained her “history” as she had initially given it to him ([39] of her affidavit of 10 February 2011).
Fourth, that Mr Feng had advised her in June 2003 (again well after the time he was not able to practice as a registered migration agent), following receipt of a “negative” response to her intervention request, to go into hiding (from the immigration authorities), and possibly take advantage of an “amnesty” in “five years time” ([44] of the affidavit of 10 February 2011).
Fifth, Mr Feng had been the subject of an Administrative Appeals Tribunal decision (Feng and Migration Agents Registration Authority [2002] AATA 709) in August 2002, which affirmed the decision of the Migration Agents Registration Authority made on 27 November 2001 declining to re-register Mr Feng as a migration agent. Therefore, the evidence of Mr Feng and Mr Chen, which contradicts the applicant’s evidence, is, in light of the AAT decision, to be seen as self-serving and not credible.
The applicant’s evidence is that she arrived in Australia on 23 August 2001 on a short stay business visa. She consulted Mr Feng to assist her to prepare an application for a protection visa. He lodged an application for her on 24 September 2001. This was refused on 8 November 2001. An application for review to the Tribunal made on 12 December 2001 was also unsuccessful on 12 November 2002. This is the decision which is the subject of the current proceedings.
Specifically, her evidence is that she was given documents to sign by Mr Feng, in particular the application for the protection visa, a declaration by her, and a letter to the Minister’s department (see annexures “A”, “B”, and “C” to her affidavit of 11 February 2011). That she could not read the documents and, beyond a general description of the protection visa application provided by Mr Feng, she only became aware of the nature and contents of these documents when they were explained to her by Mr Borg on 9 December 2010.
Mr Feng was refused renewal of his registration as a migration agent on 27 November 2001. This aspect of the applicant’s complaint therefore must be viewed in light of the situation as before and after that date.
The complaint is that, up to the point when Mr Feng continued to be registered, he “made” an application for a protection visa and submitted documentation to the Minister’s department on her behalf. While the applicant was generally aware of this (her evidence is she signed the documents) she was unaware of the contents in relation to the protection visa application. She now understands the contents, or claims, to protection were “not correct”.
Further, that Mr Feng advised her she should not go to an interview with the Minister’s delegate even though she wanted to go. Her evidence was that he told her it was “useless” for her to go because her case was “hopeless” (see [38] of her affidavit of 12 December 2010). She ultimately took his advice. He sent a communication to the Minister’s department to that effect on 1 November 2001 ([40] of her affidavit of 12 December 2010).
There are a number of reasons why this aspect of the applicant’s claims does not assist her in satisfactorily explaining the delay or revealing such merit in the grounds of the application as would satisfy the Court that it is in the interests of the administration of justice to extend time.
The first and complete answer is that, even if the applicant’s evidence were to be accepted, and even if the conduct of Mr Feng were to be found to be fraudulent (neither of which is the case – see further below), any “fraud” at that time (27 November 2001) could not have vitiated the Tribunal’s processes. No application had been made to it. It had not embarked on the conduct of any review. Her complaint, for example, that he “fraudulently” induced her not to go to the interview with the delegate falls within this category.
Any “error” in this regard is “cured” by the Tribunal’s decision (so long as it remains free from jurisdictional error) (Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294 at [14] to [21] per Wilcox J (not affected by appeals). See also Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495 at [92] to [96] per Gyles J, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; [2004] FCAFC 248; (2004) 211 ALR 261 and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314).
The other answers are common to the entire period of her claimed dealings with Mr Feng and should be viewed concurrently. To the extent that the claim is that Mr Feng submitted claims which were false, and these claims therefore were ultimately put before the Tribunal when the application for review was made, then that is also dealt with below.
The second answer is that the evidence of Mr Feng and Mr Chen before the Court is to be preferred to the applicant’s evidence. (See also further below.)
Mr Feng’s registration as a migration agent ceased on 27 November 2001. The applicant’s evidence was that Mr Feng continued to represent her and that on 7 December 2001 he requested that she sign a statement in English which she did not understand. This was to be given to the Tribunal. The statement, on the applicant’s evidence, repeated the claims originally drafted by Mr Feng and did not represent the applicant’s “true” claims. While the applicant acknowledged that Mr Chen “filled in” her application for review, his role in preparing documentation which she signed was never explained to her. The applicant’s evidence in this regard is contradicted by the evidence of Mr Feng, and importantly the evidence of Mr Chen.
Mr Chen’s evidence was not challenged on cross-examination. For whatever reason, the applicant chose not to require him for this purpose. This evidence reveals that Mr Chen has (about nine years later) no specific recollection of the applicant, nor the details of the work done for her. Nor did he have any record of her matter in his current records.
But Mr Chen was able to give evidence as to his usual practice. This was that he would not have done the things alleged by the applicant. That is, not explain matters to her, act without authority or instruction and the like. Further, it was his belief that the applicant was one of four former clients of Mr Feng for whom he acted after Mr Feng lost his registration. This evidence remains uncontested.
On the other hand, as to both periods (that is, both before and after Mr Feng's loss of registration), the applicant’s evidence, following cross-examination, could not be sustained or, in critical aspects, be accepted as establishing fraud on the part of Mr Feng. Nor was it satisfactory in explaining the delay in coming to Court.
The applicant’s evidence, somewhat in contradiction to other evidence that she gave that it was only after consulting Mr Borg that she really understood what Mr Feng had done, was that it was on or about 6 December 2002 that she became aware that Mr Feng had not given a “true” account of her claims in her protection visa application. Her evidence was that she only became aware of this when she asked a friend to translate the letter to the Department containing her protection claims.
By this time a significant amount of documentation had built up relevant to the applicant’s case in addition to this letter. For example the application form itself, letters from and to the Minister’s department, the application for review to the Tribunal, and a letter from the Tribunal inviting her to a hearing. The applicant’s evidence in cross-examination in this regard was problematic. No explanation was given as to why, out of all the documentation, the applicant asked a friend to translate this particular document. Further, she could not remember how or when she came into possession of this letter (given her other evidence that she had left everything to Mr Feng). At best, on her account, her evidence is to be understood, initially, as that this was the only document in her possession at that time.
It must be said that the applicant’s evidence, given by way of affidavit, was remarkable in exhibiting the applicant’s capacity to remember, to a high degree of detail, conversations held over eight or nine years ago. While various parts of her evidence were prefaced with “words to the effect”, her recall of such large parts of conversations of eight years ago, with such level of detail that it could be quoted (see, for example, [29] and [34] of her affidavit of 10 February 2011) may lead to a suspicion that some “construction” or re-shaping of these events took place at the time of the drafting of the affidavit with her current lawyer.
That suspicion rises to a concern when regard is had to parts of this evidence where the applicant purports to draw legal conclusions, not in the way expected of a layperson, let alone one who has English language difficulties and a lack of familiarity in a general sense with Australian law, but more consistent with that of a legal practitioner. For example, at [42] of the affidavit of 10 February 2011:
“I am not asking the Federal Magistrates Court to review a decision of the Minister for Immigration and Citizenship’s decision not to intervene in my matter for whatever reason. In reporting this I am notifying the court that Simon Feng committed fraud on the Minister by presenting him with a false and fraudulent account of my claims for a Protection Visa without my knowledge, permission or cooperation.”
This suspicion and concern is raised to a level of inference available to be drawn when a comparison of this evidence is made with the applicant’s oral evidence before the Court. One example is sufficient to illustrate this (However, see others below). Despite giving detailed evidence in her affidavit as to her attendance on Mr Feng on 10 December 2002 and related events (at [33] to [38] of her affidavit of 10 February 2011), in her oral evidence the applicant was confused, somewhat vague, and on occasion evasive, not only in relation to this point but generally.
For example, as set out above, the applicant gave evidence that a friend had translated a letter for her on 6 December 2002, which was allegedly the letter submitted by Mr Feng to the Minister’s department containing what she now claims to be an “incorrect” version of her account to fear persecutory harm. Before the Court the applicant claimed, in contrast to her extensive affidavit evidence which was characterised by remarkable detail, that she could not remember the date on which she received the letter and the circumstances in which she received it. The applicant then said that she received the letter from Mr Feng in November 2002. She said that she could “not remember very clearly”, but obtained that letter “because my application for review was rejected by RRT. I just want to know why I was rejected so asked my friend to go to translate the letter for me.”
If the applicant’s evidence is that she wanted to know why she was rejected by the Tribunal, what was left totally unexplained was why she did not obtain, or seek to obtain, even after having obtained this letter, the actual Tribunal decision record which would have been far more useful to her stated intention.
In any event, the applicant then gave contradictory evidence. That is, that she had “probably always” had the letter. That is, in context, she did not “obtain” the letter from Mr Feng sometime towards the end of 2002, but was in possession of it (that is, a copy of the letter) from sometime in 2001, closer to the time it had been drafted and sent to the Minister’s department.
The applicant’s inability to recall events in her oral testimony with the same degree of accuracy and detail as in her affidavit evidence was also revealed in answer to questions as to when she knew the Tribunal had refused her application. This event, on her evidence, was important in the sense that it caused her to have a friend translate the letter containing her statement of claims and then led to a confrontation with Mr Feng. During cross-examination the applicant was asked when she first became aware that the Tribunal had refused her application. Her inability to answer such a simple question was problematic, but was indicative of, and consistent with, the difficulty in recalling events over such a long period of time.
As referred to above, the applicant’s oral evidence was generally unclear and confused. This was also the case when this issue was explored with her. At one point her answer was that: “I recall I was refused by RRT on 12 November” (in context: 2002). If this was meant as an answer to the question as to when she first knew the Tribunal had refused her application, then in the circumstances it can only serve to reinforce the view that the applicant was confused, did not have the level of recall suggested by her affidavit evidence, or that what was set out in her affidavit was a “construct” of events in the distant past reconstructed from available documentation with
Mr Borg’s assistance.
The Tribunal’s decision is certainly dated as having been “made” on 12 November 2002. This appears on the face of the decision record (CB 78). However the relevant statutory scheme in place at that time required the Tribunal to notify the applicant of the time, date and place, for the handing down of the decision. The Tribunal sent such a letter by registered post to the applicant’s authorised recipient. That letter was dated 18 November 2002. It made no mention of the decision result (CB 73 to CB 74). The date of the handing down was said to be 10 December 2002. The relevant material in the Court Book also reveals that subsequently the Tribunal sent a copy of its decision record to the applicant, addressed to her authorised recipient for such purposes. The covering letter was dated 10 December 2002 (CB 75).
In short, the applicant could not have known of the outcome of the Tribunal’s decision in November 2002. The earliest must have been at least after 10 December 2002. The applicant’s evidence that she “recalled” that the Tribunal refused her on 12 November 2002 cannot be taken as a recollection of events as they occurred in 2002.
In her affidavit evidence the applicant made numerous references to the assistance and explanations provided to her by Mr Borg in 2010 (see for example [7], [8], [11], and [32] of her affidavit of 10 February 2011: “… when Mr Borg explained it to me…”).
The applicant’s evidence was that she understood very little if anything of what was going on at all material times until she saw Mr Borg in August 2010. There is a marked contrast between the highly detailed evidence in her affidavits about events in 2001 – 2002 and 2009 and in her oral evidence.
On the evidence before the Court the applicant met Mr Borg for the first time in August 2010 after being introduced to him by a friend ([52] of her affidavit of 10 February 2011). The inference to be drawn from the presentation and state of the evidence is that, with the benefit of Mr Borg’s assistance and the documents that Mr Borg had obtained and shown to the applicant, the applicant’s evidence for the most part was not based on her actual recollection of events in 2001 – 2002 and 2009, but on what the documents appeared to say.
By contrast to all of this, the evidence of Mr Feng and Mr Chen in particular was relatively clear. While there may have been a number of additional points to be pursued in the cross-examination of Mr Feng, they were not. Mr Chen was not required for cross-examination. His evidence remains unchallenged and, as set out below, plausible. It is for the applicant (in this case her legal representatives) to put her case before the Court.
It is trite to say that the Court can only proceed on the evidence presented and as tested under cross-examination.
Mr Feng’s evidence was that, given the time that had elapsed, he had no business records of the applicant’s case. That while he may have spoken to the applicant after he lost his registration in November 2001, as with other former clients it would have been to hand over relevant documents and to direct them to other migration agents.
His evidence also was that he could not remember having the various conversations after November 2001 as described by the applicant in her various affidavits, but he denied that he would have had said what was ascribed to him.
Clearly Mr Feng’s inability to recall, in 2011, conversations, or even the thrust of conversations, allegedly had in 2002 should not, on its own, and immediately, be taken as being self-serving. It is at least consistent and plausible given the time that has elapsed. Similarly, he was not shaken in cross-examination when he said that he would not have said what was ascribed to him.
Importantly, while Mr Chen, the other migration agent, was not required for cross-examination, no questions were posed to Mr Feng about any relationship with Mr Chen in the period following his cessation of registration as a migration agent. On balance, this leaves Mr Feng’s evidence that he did not act contrary to “the law” after the time of his cessation of registration. That is, he did not act as a migration agent, and therefore would not have had the type of conversations alleged by the applicant. Further, it also leaves unchallenged Mr Chen’s evidence that after Mr Feng’s loss of registration he acted for the applicant.
When seen in light of Mr Chen’s unchallenged evidence, and in light of the applicant’s unsatisfactory evidence, I cannot be satisfied that the detailed events as claimed by the applicant occurred in the way described, certainly not to such an extent as to provide the evidentiary basis to assert fraudulent conduct on the part of Mr Feng, or as a basis for explaining the lengthy delay.
For immediate purposes, on the evidence, I accept that Mr Chen acted for the applicant before the Tribunal. No claim of fraudulent conduct by him is made such as to vitiate the Tribunal’s process. I do not accept, on the state of the evidence, that the claimed conversations with Mr Feng after his loss of registration took place in the way asserted by the applicant. But even if Mr Feng had told the applicant not to go to the Tribunal hearing, or to write to the Minister, that on its own does not amount to fraudulent conduct.
The applicant’s evidence was that he told her to do these things because her case was “hopeless”. In circumstances where, even on the applicant’s evidence, she had been referred to another migration agent by Mr Feng (in her affidavits the applicant recounts dealings with Mr Chen – see [44] to [48] of her affidavit of 12 December 2010 and [23] to [28], [30], [33] and [53] of her affidavit of 10 February 2011), it is implausible and difficult to accept that he would have also continued to assert to the applicant that he continued to be her migration agent.
Even if he continued to have these conversations with her (and for the reasons set out above I do not accept the applicant’s evidence in this regard, certainly not to the detail asserted), and in circumstances where she had another migration agent, and in circumstances where Mr Feng was no longer “registered”, it was left totally unexplained what motivation he had to act in a fraudulent way in connection to the applicant. He had already been “de-registered”.
It may simply be that her case, on whatever version, was “hopeless”, and that Mr Feng was simply reflecting this.
But what weighs strongly against the applicant, and remains unexplained by her, is why on her evidence she continued to take his advice after she confronted him in early December 2002 in circumstances where, on her own evidence, she knew he had misrepresented her “story” to the Minister’s department. That is, that he had lied and acted fraudulently.
Critically, nowhere does the applicant explain why, if she had a “true” account and it was a credible account of a claim to fear persecutory harm, Mr Feng would put in a false account. His motivation for acting in this way in the applicant’s case remains unexplained, or at best not satisfactorily explained.
An attempt of sorts may have been made with the reference to the AAT decision involving Mr Feng. The applicant sought to attack Mr Feng’s credibility, his conduct, and perhaps to explain his motives, by referring to some propensity to act inappropriately as found by the AAT, and a vague, poorly explained association between the individual cases on which the AAT’s findings were based and the applicant’s relevant circumstances. However, the Court was not taken to any specific part of the AAT decision which established a clear link between Mr Feng’s conduct as found by the AAT and the applicant’s specific circumstances.
Ultimately, while the AAT made serious findings in relation to Mr Feng’s conduct as a migration agent, there was no finding that the Court was referred to that said he acted fraudulently.
In the end, and at its highest, the applicant’s case before this Court was to infer some “guilt by association”. This was not sufficient to impugn Mr Feng’s conduct in the current proceedings in the way hoped for by the applicant.
Further, the applicant made various references to the AAT decision in her affidavit evidence. Mr Feng was questioned in this regard in cross-examination. However, whatever may be said about what occurred before the AAT, what emerged before this Court was that it may be said that Mr Feng acted in a negligent and even incompetent manner in the lodging of visa applications and in his dealing with clients. There may have been more fruitful areas to be explored, but for whatever reason this was not done.
Nor does the applicant satisfactorily explain why, after having been introduced to Mr Chen, she did not take advantage of his good offices and expertise as a registered migration agent to address the wrong she claims Mr Feng had done to her. Nothing has been put before this Court to impugn Mr Chen’s integrity or expertise. Nor was there any evidence that she had any communication difficulties with Mr Chen.
The applicant explains the delay in coming to this Court in the years between the making of the Tribunal’s decision and her knowledge of it (December 2002 to January 2003) and when she saw Mr Borg (in 2010) in essentially two ways. In summary, these are first, as set out above, that she left matters to Mr Feng and followed his advice, which led to the delay. Second, that she sought Ministerial intervention on two occasions and at separate times awaited the Minister’s response.
These were periods commencing in 2003 (allegedly she saw Mr Feng in this regard) and 2009 (when she saw Ms Byers) when she sought to pursue the intervention of the Minister pursuant to s.417 of the Act, or seeking his intervention through s.48A of the Act.
The applicant’s evidence was that on 12 December 2002, after she had consulted three other migration agents ([36] to [39] of her affidavit of
10 February 2011) she spoke to Mr Feng, who ultimately drafted a letter which she signed and which was sent to the Minister on 4 January 2003 seeking his intervention. This request was concluded on 26 June 2003 when the applicant was advised that he would not intervene.In late 2009 she attended at the offices of Ms Byers, and another letter was drafted and sent to the Minister seeking his intervention. While not clear, it appears this request was declined in June 2010 ([47] to [51] of her affidavit of 11 February 2011).
The applicant’s position is that, for the periods covered by these two requests, her explanation for the delay was that she was awaiting the outcome of the Minister’s consideration.
One possible answer to this is that the applicant’s action in seeking Ministerial intervention displayed a contrary intention to seeking judicial review and, on balance and in the circumstances, cannot be taken to establish a satisfactory explanation for the periods covered by these requests (see Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 per Jessup J (Gyles and Besanko JJ agreeing) at [29]; Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9]; Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 Gray J at [9]; Re Ruddock; Ex Parte LX [2003] FCA 561 at [42] per Heerey J; Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266; Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [18]- [20] per Weinberg J (see also Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186); Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; (2004) 205 ALR 198; M211 of 2003 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 293; (2004) 212 ALR 520; SZJYR v Minister for Immigration and Citizenship [2010] FCA 135; SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457; SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683. But see contrary: Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195; NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84; SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301; SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478; Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316; SZEEF v Minister for Immigration [2006] FMCA 661; SZMKK v Minister for Immigration and Citizenship [2009] FCA 1340).
Recently, in Khandakar Sakib Ahmed v Minister for Immigration & Citizenship [2011] HCATrans 035 (“Khandakar”), Gummow J said (at line 157):
“… The plaintiff should not be denied an order for an extension of time by reason of pursuit on legal advice of other avenues of redress; see Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 at 88, 103, 125.”
The “other avenues of redress” included the seeking of Ministerial intervention. The test for the extension of time before his Honour was whether it was in the interests of the administration of justice to extend time in that case to allow for the filing of, in effect, a competent application. That is, the relevant circumstance in the current case pursuant to s.477(2).
The question therefore is whether the seeking of Ministerial intervention in the applicant’s circumstances was an acceptance that there was no legal error in the Tribunal decision, and therefore is part of the explanation as to why she did not seek judicial review and pursued another avenue.
A distinction, however, can be drawn between Khandakar and the current case in relation to the first occasion of seeking Ministerial intervention. The applicant did not act on any legal advice in seeking other avenues of redress. On the applicant’s evidence she sought Ministerial intervention on the first occasion acting on the advice of Mr Feng. There was no evidence that he was at that time a lawyer or that legal advice had otherwise been obtained in this regard.
But, as set out above, I have difficulty in accepting the applicant’s evidence in this regard. What is left unexplained in the applicant’s evidence is why, after having confronted Mr Feng on or about 10 December 2002 and asserted that he had made false claims on her behalf in her protection visa application, she would then go back to him two days later and pay him more money to write to the Minister to seek his intervention, and then sign the letter drafted by the same person whom she had accused two days earlier of what she now says is fraudulent conduct that had such an adverse impact upon her.
The applicant’s protestations of claimed helplessness must be seen in light of her other evidence that between “on or about” 10 December 2002 and 12 December 2002 she had consulted three other migration agents. A factor in itself that shows the applicant’s resourcefulness in finding avenues of assistance in circumstances where she otherwise claimed to be at the “mercy” of having to rely on Mr Feng. Her evidence that they told her there was nothing they could do does not explain why she would go back to Mr Feng. Further and incidentally, it allows the inference to be drawn that, whatever had occurred up to that point, she at least implicitly accepted Mr Feng’s claimed earlier conduct in making the false claims, if indeed on her evidence that is what he did.
Further, a copy of the “first” letter requesting Ministerial intervention is at annexure “L” to the applicant’s affidavit of 10 February 2011. The letter was signed by the applicant and contains her address. There is nothing on the face of the letter to show any involvement by Mr Feng.
The applicant’s evidence is also that: “… on 7 January 2003” the Minister’s department received this request: “… on my behalf from Simon Feng’s office signed by Jing Zhou MARA number 0214048” ([41] of her affidavit of 10 February 2011).
How the applicant knew this is left unexplained. Despite a large number of annexures to the affidavit, no documentary evidence of this assertion was provided.
But in any event, even on the applicant’s own evidence, the letter was sent by yet another migration agent (a Ms Zhou), not Mr Feng. Even if it was the case (and I do not accept that it was) that Mr Feng handed her matter over to another migration agent without her permission, and even if this was a breach of the Migration Agent’s Code of Conduct, it does not provide a satisfactory explanation for the delay. There was no evidence before the Court to say that this Ms Zhou acted in a legal capacity. Nor for that matter does it establish any fraud on the part of Mr Feng. Nor, importantly, is it a fraud such as could be said to vitiate the process before the Tribunal. The Tribunal by this time was “functus officio”.
As to the action of Ms Byers, the applicant’s evidence is that she spoke to Ms Byers who then advised her “that the best form of action is to write to the Minister for his intervention…” ([48] of the affidavit of 10 February 2011). Advice which the applicant said she accepted.
On the letterhead of the letter then sent to the Minister, Ms Byers is described as a “solicitor” as well as a “migration agent”. Amongst other qualifications, she is a Master of Laws (see “RE1”). It is not clear from the circumstances described by the applicant whether
Ms Byers was acting in her capacity as a lawyer dispensing legal advice or a migration agent giving migration advice. On the applicant’s own evidence she dealt for the most part with someone else in Ms Byers office, and not Ms Byers herself.
It is not necessary in this case to further pursue these two periods of time between the applicant’s knowledge of the Tribunal’s decision and the application to the Court. Even if it were to be accepted that these periods were satisfactorily explained, the remaining period from June 2003 to December 2009, a period of over six years, is not satisfactorily explained.
The applicant’s explanation for this is that in June 2003 she again spoke to Mr Feng, who told her that she should go into “hiding” for five years and make a new application for a protection visa at that time, or that there might even be some “amnesty” by that time. She said he told her she did not have any option other than to stay in Australia “illegally” ([44] of her affidavit of 10 February 2011).
Whether or not Mr Feng actually said this to the applicant, what remains, on her own evidence, is that she: “… decided to try that method to solve my problem”. Her assertion that she: “… did not talk to anybody about my situation for legal information as I did not trust people…” ([45] of her affidavit of 10 February 2011) is difficult to accept given that it was also her evidence, or arising from her evidence, that she continued to trust the advice of the one person (Mr Feng) who, on her evidence and within her knowledge at that time, had made false claims on her behalf without her knowledge, had inexplicably referred her matter to another agent without her authority (Ms Zhou) and on her evidence had arranged for another agent (Mr Chen) to “fill in” her application for review ([26] of her affidavit of 10 February 2011).
These assertions require an acceptance of a level of naїvety that, in the circumstances, is implausible. But even without this, what remains is that the applicant herself decided to stay in Australia illegally. Whether she was induced to do so by Mr Feng or not, the applicant’s evidence that she chose the option of remaining in Australia illegally, and that she knew that that would be her immigration status and that she would be in breach of Australia’s immigration laws, is conduct that is inconsistent with the relief that she now seeks. Whatever else may be said, this was deliberate and long-lasting conduct by the applicant disentitling her to the relief claimed
In this regard, the Minister relied on Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 at [30]:
“We consider it appropriate to start from the position that an applicant for judicial review of an administrative decision made more than seven years earlier is required to offer a satisfactory explanation of why the application was not made earlier. The evidence and submissions of the first respondent bearing on this issue do not constitute a satisfactory explanation. Rather they have satisfied us that he deliberately undertook a course of conduct that would render it difficult, if not impossible, for the Tribunal, his migration agent and the Department of Immigration to find him. We are also satisfied that he made no real effort to ascertain the fate of his application to the Tribunal. These conclusions render it unnecessary for us to consider the apparent strength of the first respondent’s claim to be entitled to a protection visa.”
Further, in SZGME at [51] to [52]:
“[51] Though the delay in bringing the application concerning the decision here is not ‘unwarrantable’, in that it was about 50 days late, it was made in the context of eight years passing from the time of the Tribunal’s decision. The applicant chose to take no step to address his position, having himself invoked the executive authority to undertake a consideration of the merits of his claim. That conduct, the invoking of the consideration by the Tribunal of the merits of his claim and waiting eight years to deal with his own circumstances, is inconsistent with the relief he now seeks – the setting aside of the decision of a delegate that he cannot make another application for consideration of his claims on their merits. We accept that this earlier course of conduct of invoking merits consideration and then doing nothing for eight years did not involve any dishonesty. The applicant chose, partly out of fear, not to approach the Department to clarify his position. Eight years later, however, he wishes to invoke again the machinery of the executive to consider, again, his claims on their merits.
[52] In our view, this prior conduct is inconsistent with the relief he now seeks. It also reflects a long delay in taking the step that gave rise to the need for the primary relief sought.”
The applicant provided no answer to this.
Nor can it be said that it is in the interests of the administration of justice for an applicant before the Court to benefit from a breach of the law, made even more serious in the circumstances by its very length.
In her substantive application to the Court the applicant seeks orders that the Tribunal decision be “set aside” (order 1) and that the Court remit the matter back to the Tribunal “with instructions the applicant meets the criteria set out in s.36(2)(a) for a protection visa” (order 2).
The latter (order 2) is misconceived. This Court has no role in engaging in merits review. The question of whether the applicant meets the criterion set out in s.36(2) of the Act, in effect the definition of “refugee” set out in Article 1A(2) of the Refugees Convention, is a matter for the Tribunal and not the Court.
What the applicant probably seeks is an order in the nature of a writ of certiorari removing the matter to this Court, a declaration or finding that the Tribunal’s decision is infected with legal error (based on the allegation of fraud and its consequent vitiation of the Tribunal’s process) and in effect to quash the decision, and an order in the nature of a writ of mandamus compelling the Tribunal to re-consider the applicant’s application to it according to law.
Whatever the actual detail of what the applicant seeks, the relief which she really seeks falls within the exercise of the Court’s discretion.
Relief is a discretionary criterion for the denial of certiorari and prohibition (see Judicial Review of Administrative Action[1] at 826 to 831, Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 421 to 422). Unreasonable delay may be sufficient to justify discretionary refusal of mandamus (Judicial Review of Administrative Action at 846 to 854).
[1] Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action – Fourth Edition, Lawbook Co., Thomson Reuters, Sydney, 2009.
It is the case that the common law principle of delay as a discretionary basis for refusing relief was reaffirmed in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) at [53] per Gaudron and Gummow JJ. See also at [148] to [149] per Kirby J and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”) at [80], [84].
Even if the applicant could make out any of the grounds pleaded, in effect the allegation of fraud on the part of Mr Feng (which she has not), then this Court could still refuse the relief sought in the exercise of its discretion (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 at [27] to [28], SAAP, Aala at [82] to [83]).
As McHugh J said in Re Commonwealth of Australia; Ex parte Marks (2005) 177 ALR 491 (at 495 to 496):
“Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay…”.
On the applicant’s own evidence the delay was occasioned by her acceptance of Mr Feng’s advice. Plainly he is not the respondent, or a public body or official. As set out elsewhere, ultimately even if Mr Feng had provided this advice (which on the evidence is not made out), the delay between the “cessation” of the period of seeking Ministerial intervention on the first occasion, and the approach to Ms Byers on the second (a period of six years), was occasioned by the applicant herself.
The prejudice to the Minister if the Court were to extend time, in the circumstances, constitutes a factor of strong weight. The matters alleged by the applicant in her substantive application to the Court, the three grounds, really come down to the one thing: that the relevant conduct of Mr Feng was such as to be seen as constituting fraud. That fraud vitiates the Tribunal’s decision.
But as was clearly revealed before the Court, to establish fraud the applicant relies on events that occurred over eight or nine years ago. The Minister would be seriously disadvantaged in being put to respond with evidence of those events at this time.
First, relevant documentary records of both Mr Feng and Mr Chen, the migration agents, are no longer in existence. There is nothing sinister or improper about this. As Mr Feng explained in his evidence, he only retains business records for seven years.
Second, human memory is subject to the vagaries of time. Mr Chen’s evidence that he had no actual recollection of events over eight years ago is plausible in the circumstances. This is similar to Mr Feng’s position.
Even the applicant’s evidence of the relevant events over eight years ago as given before the Court reveals that she simply could not remember the level of detail otherwise asserted in her affidavit evidence.
Importantly, in a matter apparently overlooked by the applicant now, those parts of her evidence and claims relating to Mr Feng’s conduct after the making of the Tribunal’s decision (10 December 2002), while it may have gone to the issue of explaining the delay, cannot assist her on the issue of his claimed fraud vitiating the Tribunal’s decision once the Tribunal had become “functus officio”.
For the reasons set out above, I have formed the view that the applicant’s evidence, said in great part to reveal fraudulent conduct by Mr Feng, is not reliable. Attempts to link the AAT findings in relation to Mr Feng to what he may have done in this case, at their very highest, establish that there were cases where Mr Feng acted negligently, or even incompetently. This is not fraud.
For the period before the making of the Tribunal’s decision, even if fraud could be made out (and on the evidence it is not) the factors ranged against the applicant set out above are ultimately overwhelming in the context of what is in the interests of the administration of justice.
Unsatisfactory explanation of an extraordinarily lengthy delay, the election by the applicant to breach Australian law, the prejudice to the Minister, and the state of the evidence which shows that there is no reasonable prospects of making out the assertion of fraud all lead to the conclusion that it is not in the interests of the administration of justice to extend time.
Conclusion
The application to extend time pursuant to s.477(2) of the Act is not made out. The substantive application therefore is to be dismissed as not competent.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 19 May 2011
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