SZRUR v Minister for Immigration
[2013] FCCA 915
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRUR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 915 |
| Catchwords: MIGRATION – Review of decision of RRT – where applicant gave address of an agent as his address for receipt of correspondence – where agent was not appointed to act on applicant’s behalf and did not sign forms as such – where no evidence of fraud upon applicant – some comments on role of lawyers acting under Minister’s scheme. |
| Legislation: Migration Act 1958 (Cth), ss.426A, 486I |
| SZFDE v Minister for Immigration & Anor [2007] HCA 35 Minister for Immigration & Anor v SZLIX [2008] FCAFC 17 |
| Applicant: | SZRUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2062 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 16 July 2013 |
| Date of Last Submission: | 16 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2062 of 2012
| SZRUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 22 October 2011 and applied to the Department of Immigration for a protection (Class XA) visa on 16 November 2011. A delegate of the Minister interviewed the applicant. On 11 April 2012 the delegate refused to grant him a protection visa. The applicant applied for review of that decision from the Refugee Review Tribunal.
The form upon which the applicant completed that application is found at [CB 68 -73]. It gives the applicant’s address as an address that he gave when he made his original application and it gives a telephone number of a mobile phone which was also contained in his application on Form C [CB 2]. The form gives a email address at which the applicant can be reached. However, in response to Part B “representative details”, the applicant or the person on his behalf who completed the form has ticked “No” to the question “Do you want to appoint a representative to act on your behalf and be your authorised recipient?”
In response to question 13 “Where do you want us to send correspondence about your application?” an address is given at 301/401 Sussex Street, Haymarket and an email address at Hotmail. The form is purportedly signed by the applicant. When the Tribunal received the application it sent the usual acknowledgement letter to the applicant at Sussex Street. On 25 June it wrote to the applicant by registered post, again at Sussex Street, advising him that it had considered the material before it but that it was unable to make a favourable decision upon that information alone and appointed 21 August at 9.30 am for a hearing.
On 4 July 2012 a response to hearing invitation was received by the Tribunal indicating that the applicant would attend. The contact telephone number given was the same telephone number that was given in the initial application for the visa. But the applicant did not attend the hearing and the Tribunal determined, in those circumstances, to deal with the matter pursuant to s.426A of the Migration Act 1958 (Cth)[1] which is in the following form:
[1] “Act”
“Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”
The Tribunal noted that the applicant’s claim was based on the Convention ground of imputed political opinion arising out of claimed persecution by people with the accent of his home province who, he says, abducted him and held him for more than 45 hours when he travelled to Beijing to lodge a petition against what he considered to be an improper compulsory acquisition of his land.
In its findings and reasons the Tribunal noted that there were no corroborative documents supporting the applicant’s claims but there was no material that contradicted them.
“[36]Therefore, in this case Mr Applicant’s claims are the only basis by which the Tribunal can be satisfied as to whether Australia owes any protection obligations. The first step in the process of reasoning will involve an assessment of the credibility of Mr Applicant.
[37]As noted above, the Tribunal considers that Mr Applicant has been given an opportunity to present his case.
[38] The Tribunal is unable based on the material before it to make any findings as to whether Mr Applicant has a well founded fear of persecution. The Tribunal does not have the benefit of assessing Mr Applicant’s credibility when it comes to his claimed past treatment. The Tribunal is also unable to find whether Mr Applicant will suffer any form of harm if he were to return to China.” [CB 98]
It was for these reasons that the Tribunal found itself unable to be satisfied that the applicant was a person to whom Australia owed protection obligations.
On 21 September 2012 the applicant filed an application for review by this court. In the grounds of application he stated that he did not have a chance to present his evidence and he did not have an interview with the RRT. The applicant was granted legal assistance under the Minister’s scheme. That assistance was provided by a solicitor, Mr Mark Campbell. On 18 February 2013 an amended application was filed. It is noted that it was prepared by Mr Campbell and it gives an address for service as that of the applicant. The final orders sought by the applicant are more appropriate for an independent merits review than a review by the Refugee Review Tribunal. The document, although signed by Mr Campbell as the applicant’s lawyer, has not had the lawyer’s certification about reasonable prospects of success. The court is reluctant to criticise Mr Campbell who has agreed to be part of the Minister’s scheme which is an essential service for persons such as the applicant, but it does feel that when lawyers get to the stage of preparing amended applications and effectively acting on behalf of a litigant, they should observe the rules of the court and, in particular, the rule relating to the signing of a lawyer’s certificate under s.486I of the Act.
There is only one ground of application in the amended document filed by Mr Campbell on behalf of the applicant. It is:
“1. The Applicant was denied natural justice
Particulars
a. the matter was heard by Refugee Review Tribunal in the applicant’s absence and a decision was made on 21 August 2012
b. The applicant engaged a Migration Agent whose address is 301/401 Sussex Street, Haymarket.
c. On 25 June 2012 the Tribunal sent a letter to 301/401 Sussex Street, Haymarket 2000 being the address of the Applicant’s agent but the Applicant was not informed by the agent that the hearing was set down for 21 August 2012 and, therefore the Applicant had no knowledge that the matter was to be heard on that date.”
These complaints are the gravamen of the applicant’s application before me today. Mr Campbell has not appeared. The applicant tells me that he expected to hear from his migration agent about the hearing date but he did not. He tells me that the signature on the form in responding to the invitation to appear was not his. Today, for the first time, the migration agent was identified. He appears to be a Mr Ricky Jiang of 301/401 Sussex Street but neither his email address nor his mobile phone number are the same as those that appear in the application forms or in the response to hearing invitation form.
The High Court in SZFDE v Minister for Immigration & Anor [2007] HCA 35 considered the possibility that the actions of a migration agent, in relation to a hearing before the Tribunal, could in limited circumstances constitute not only a fraud upon the applicant but a fraud upon the Tribunal which would stultify the operation of the scheme under which Tribunal proceedings are regulated, in particular, s.425(1) of the Act. But the limit of this dicta was explained by the Full Bench of the Federal Court Tamberlin, Finn and Dowsett JJ in Minister for Immigration & Anor v SZLIX [2008] FCAFC 17 at [33]:
“[33]The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. 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, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud..”
In the instant case I just do not have the evidence which would satisfy me on any standard that a fraud had been perpetrated upon the applicant and, through him, the Tribunal. I do not know the circumstances in which Mr Jiang was allegedly retained. The documentation before me seems to indicate that Mr Jiang did not wish to be considered the applicant’s migration agent, that he was to be only a post-box and that the applicant was well aware of this having signed the form. Whilst it is possible that the applicant did not really understand the nature of the work to be conducted by the agent or why the agent should not nominate himself as such this is only something that the court can speculate upon and does not assist it to come to a conclusion that the applicant was defrauded.
The applicant has provided no evidence to the court on what occurred. The only evidence that he gave was to read out from the bar table a statement by a person, who claimed that she would not be able to give evidence in court, that she heard the applicant telephone the migration agent and complain that he had not been told about the hearing in September 2012, over a month after the decision. One might wonder why, if the applicant received a copy of the decision sent to him at 301/401 Sussex Street, the agent had not given him advice concerning the hearing invitation. Again this is something not explained.
The court has in the past expressed its concern about the activities of certain migration agents, or persons pretending to be such particularly those in the Chinese community. It is not helpful for people to use or be able to use migration agents as post-boxes. If someone attends a migration agent then the form should be completed as if the agent is acting as their representative if the agent is to have any part in the process. There should not be this halfway house which leads to the type of problem that is faced by the court and the applicant today.
Nothing that the court has heard today enables it to come to a conclusion that the actions of Mr Jiang constituted a fraud on the applicant and thus a fraud on the Tribunal. In those circumstances the application must be dismissed because the Tribunal acted appropriately by applying s.426A in the circumstances of the applicant’s non-appearance. The decision that the Tribunal reached was probably the only one it could reach based upon the lack of evidence. The application is dismissed. The applicant shall pay the respondent’s costs which I assess in the sum of $4,000.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 23 July 2013
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