SZSJA v Minister for Immigration
[2013] FCCA 741
•8 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSJA v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 741 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – assertion of fraud by third party on the Tribunal – applicant failed to attend the Tribunal hearing in circumstances where he alleged he was not told of the hearing date and did not put his signature on the response to hearing invitation form – no fraud – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 426, 441A, 441C, 441G, 476 |
| SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA 35 SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 Minister for Immigration v SZLIX [2008] FCAFC 17 SZHLP v Minister for Immigration and Citizenship (2008) 172 FCR 170 Briginshaw v Briginshaw (1938) 60 CLR 336 SZLIX v Minister for Immigration and Citizenship (2008) 245 CLR 501 SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 Grace Pushpa Wati v Minister for Immigration & Ethnic Affairs & Anor [1996] FCA 1043 |
| Applicant: | SZSJA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2898 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 3 May 2013 |
| Date of Last Submission: | 3 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2013 |
REPRESENTATION
| Appearing for the Applicant: | Mr R Kessels |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application made on 7 December 2012, amended 6 March 2013 and further amended on 19 April 2013, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2898 of 2012
| SZSJA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 7 December 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 6 March 2013 and further amended on 19 April 2013, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 14 November 2012, to affirm the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”) (Court Book – CB – CB 13). He arrived in Australia on 21 August 2011 on a tourist visa that expired on 14 July 2012. His wife and daughter are also in Australia, however they were not included in the application for a protection visa, nor the application to the Court.
The applicant applied for a protection visa on 15 March 2012.
The applicant claimed that he was persecuted due to his religious practice of Falun Gong (CB 28). His application was refused by the delegate on 19 July 2012 (CB 57). The delegate found that the applicant had not “substantiated a well-founded fear of persecution” (CB 71.8). Further, the delegate did not accept the applicant’s claims of worship or belief (CB 72).
The Tribunal
The applicant applied to the Tribunal on 15 August 2012 for review of this decision (CB 78). On 17 October 2012 he was invited to appear at a hearing before the Tribunal on 9 November 2012 (CB 91). By this letter of invitation, sent to his authorised recipient for the purpose of receiving correspondence (CB 90), the Tribunal put the applicant on notice that it would not be able to make a favourable decision on the material before it (CB 91).
The applicant did not appear before the Tribunal. However, an affirmative response (“Response to Hearing Invitation form” – “RHI form”) had been received by the Tribunal on 18 October 2012 (CB 98).
Pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review using the documentary evidence available to it. It notified the applicant on 15 November 2012 of its decision, made on 14 November 2012, to affirm the delegate’s decision to refuse the grant of a protection visa (CB 103 to CB 106).
Application to the Court
The sole ground of the application, as amended on 19 April 2013, is as follows:
“1. Second Respondent failed to exercise its jurisdiction as a result of third party fraud of the Applicant’s registered Migration Agent.”
In subsequent written submissions the applicant explained this ground by stating that he did not attend the hearing before the Tribunal “as a result of fraudulent acts of his agent” ([9] of the applicant’s written submissions).
Evidence Before the Court
The applicant filed an affidavit, made on 6 March 2013, to further explain his non-attendance at the hearing before the Tribunal (see further below).
Relevantly, in that affidavit the applicant claimed that he was not provided with the correspondence between the Tribunal and his migration agent as to the invitation to attend the hearing, nor the subsequent affirmation of attendance ([7] and [9] of the applicant’s affidavit). Further, he claimed that he had not signed the RHI form. Rather, that “someone” had signed for him ([13] of the applicant’s affidavit).
He claimed that he had frequently contacted the migration agent and that he had not given him any information about the date of the hearing ([8] of the applicant’s affidavit). Finally, he claimed that when the agent did tell him of the date, it was to say that he had missed the hearing because of an administrative error in the office ([10] – [11] of the applicant’s affidavit).
The Written Submissions
The applicant submits that the facts of this case should be considered against the following legal background.
Section 425 of the Act requires the Tribunal to invite an applicant to appear at a hearing before it:
“425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
The High Court held that conduct by a third party that inhibits the operation of procedural fairness of natural justice will be considered as fraud “on” the Tribunal (SZFDE & Ors v Minister for Immigration and Citizenship & Anor [2007] HCA 35 (“SZFDE”)). The result in SZFDE was that that “the jurisdiction of the Tribunal remained ‘unexercised’ due to the fraud “on” the Tribunal (SZFDE at [7]).
Further, the applicant submitted that, in SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 (“SZIVK”), a case factually similar to the current case, Finkelstein J followed SZFDE. Further, that judgment revealed the ways in which fraud may be manifested ([31] – [35] of SZIVK):
“[31] The High Court, in allowing the appeal, discussed the meaning of fraud in different fields of law and concluded (SZFDE 237 ALR at 68-70) that to amount to fraud, in the field of public law, the impropriety may not have to be as serious as in other civil suits. The Court said (at 73) that where fraud by a migration agent subverts a s 425 invitation from the tribunal to attend a hearing, it ‘is a matter of the first magnitude’ because of the central importance of the natural justice hearing rule in the legislative scheme laid out in Div 4 of Pt 7 of the Migration Act.
[32] The allegedly fraudulent conduct of the migration agent in the present case is different from that in SZFDE. Here, the appellant does not say that the agent told him anything fraudulently false. Nor, as in SZFDE, is there any reason to explain why the agent may have acted fraudulently, for example out of self-protection to avoid the discovery that he was acting without a licence.
[33] Nevertheless, there are many ways in which fraud may be manifested. As Lord Macnaghten said in Reddaway v Banham [1896] AC 199, 221, in a frequently cited speech, ‘fraud is infinite in variety’. In my opinion there can be little doubt that, if the appellant’s claims be accepted, the migration agent was fraudulent in the relevant sense in his dealings with the appellant. The principal allegations are that his agent: falsely indicated in the response to hearing form that the appellant would attend the hearing when the agent knew that could not occur; and signed documents on the appellant’s behalf without his knowledge, consent or authority and then forged his signature.
[34] As to false information, it will be fraudulent if it is made by a person who does not believe in its truth or is recklessly indifferent to its truth: Commercial Banking Company of Sydney Ltd v R H Brown & Co [1972] HCA 24; (1972) 126 CLR 337, 343. If the appellant’s evidence is accepted, the only findings that are open are that the agent was deliberately fraudulent or, at the least, recklessly indifferent as to what he told the tribunal. The agent’s conduct is particularly grievous because it is likely he knew that the appellant’s non-attendance would be fatal to his application.
[35] As to the forged signatures, it is not unusual for courts to treat a forgery as a fraud. In this case the appellant says the agent’s dishonesty denied the appellant the opportunity to appear at the hearing. It also conveyed to the tribunal the impression that the appellant was unwilling to attend, a fact upon which the tribunal placed great significance.”
The applicant submitted that the actions of his migration agent went beyond the threshold identified in Minister for Immigration v SZLIX [2008] FCAFC 17 at [33] “[t]he 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”.
The Minister accepted the applicant’s primary submissions on the law. However, the Minister submitted that the qualification for the threshold question should be in “stronger terms” ([12] of the Minister’s written submissions). The Minister submitted the test should be:
“a failure to inform or mere negligence or inadvertence on the part of a migration agent will not amount to fraud in the relevant sense and will not vitiate the decision of the Tribunal”
Further, the Minister submits that the Court needed to consider two additional principles. First, that there will be no fraud if the applicant was somehow complicit in it (SZHLP v Minister for Immigration and Citizenship (2008) 172 FCR 170).
A finding of fraud requires a high level of satisfaction such that an allegation of fraud can be made out (Briginshaw v Briginshaw (1938) 60 CLR 336, see also SZLIX v Minister for Immigration and Citizenship (2008) 245 CLR 501). That is, while the motive of those of whom the fraud is alleged need not be explained by the applicant, the Court nonetheless may consider any such lack of information. It may make the Court less inclined to find fraud (SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67).
Before the Court
At the hearing before the Court, Mr R Kessels appeared for the applicant. Mr P Knowles of counsel appeared for the first respondent.
The applicant was cross-examined on his affidavit of 6 March 2013 (which was before the Court) (see further below). The following exhibits were tendered by the respondent:
1.Respondent’s Exhibit 1 (“RE1”): page 4 of the applicant’s application to the Court.
2.Respondent’s Exhibit 2 (“RE2”): the bundle of relevant documents shown to the applicant (the “Court Book” – “CB”).
During the hearing the applicant tendered a bundle of documents obtained on return from a subpoena served on Ms Jie Yu. This bundle was a copy of the applicant’s file held at Ms Yu’s migration agency (Applicant’s Exhibit 1 - “AE1”).
The “Missing” Witnesses
The application for review to the Tribunal reveals that Ms Yu, a registered migration agent (CB 80), was appointed by the applicant to represent him before the Tribunal. Ms Yu had previously represented the applicant in his protection visa application (CB 31). (The application stated the relevant migration organisation as being “Eternity International P/L” – CB 31.6, see also the applicant’s affidavit at [5]).
The applicant’s affidavit, at [4] – [5], also stated:
“4. I was also assisted by a man called Charlie Li
5. As far as I am aware, Mr Li was the person in charge of my application and the firm at Eternity International Pty Ltd, while Ms Yu was a junior employee assisting Mr Li with my application. I dealt with both Mr Li and Ms Yu throughout the process.”
The Minister had issued two subpoenas, one to Ms Yu and one to Mr Charlie Li to attend and give evidence.
When the matter was called Mr Li did not attend. It appears that Mr Li had sent a communication to the Court’s registry to the effect that he would not attend because “he was requested to attend another hearing…”.
The Minister acknowledged the seriousness of “ignoring a Court order to attend”, however did not press for any adjournment to enable, or compel, Mr Li to attend. The Minister indicated his willingness to proceed with the hearing.
Ms Yu did answer the subpoena and was in attendance outside the Court at the commencement of the hearing (approximately 10.15am). Some time was taken to cross-examine the applicant. When Ms Yu was called to give evidence, at approximately 11.50am, she did not appear. No explanation was given for her departure from the Court precinct. The Minister was offered the opportunity of an adjournment to another day to arrange for Ms Yu to appear. He declined that offer. The applicant was silent on this matter.
Consideration
The sole ground of the application, as further amended, asserts jurisdictional error on the part of the Tribunal’s decision because it is vitiated by the fraud of a third party. This could be the applicant’s registered migration agent or, on the applicant’s evidence, Mr Li or someone acting for him. Although, on the evidence, Ms Yu appears to have played a subordinate role to Mr Li, whose exact status at the migration agency was never satisfactorily explained (given that there is no evidence that he is a registered migration agent).
That fraud was said to arise from circumstances where the Tribunal, on 17 October 2012 and pursuant to s.425 of the Act, invited the applicant to a hearing (CB 91). That invitation was, in accordance with s.441G, sent to Ms Yu who had also been appointed as the applicant’s “authorised recipient” for the purpose of the receiving correspondence in the review (CB 90). The invitation was sent by facsimile transmission (s.441A(5)(a) and s.441C(5)(a) of the Act) (CB 89 to CB 97).
A completed RHI form was received by the Tribunal on 18 October 2012 (CB 98). It was indicated on that form that the applicant would attend the hearing scheduled for 9 November 2012 (CB 98).
On that date, the applicant did not appear before the Tribunal, at the time and place notified in the letter of invitation (CB 99).
Before the Court the applicant asserts that his migration agent had provided information to the Tribunal that he would attend the hearing in circumstances where the migration agent knew this was incorrect information. His claim is that the migration agent did not tell him of, or confirm with him, the hearing date. Rather, the RHI form was signed by “someone” on his behalf, and without his knowledge or authority. He claims that his agent did not advise him of having responded to the Tribunal in this regard.
There is no real dispute between the parties as to the applicable legal principles. The Minister’s written submissions helpfully explain this ([11] – [15] of the Minister’s written submissions):
“[11] There is little controversy over the applicable legal principles. The Applicant’s written submissions advance the following propositions:
(a) Section 425 of the Act requires the Tribunal to issue an invitation to a visa applicant: [11];
(b) In the event that a visa applicant does not attend the hearing, s. 426A of the Act allows the Tribunal to make a decision on the evidence before it: [12];
(c) The fraudulent conduct of a third party such as a migration agent may have the effect of stultifying the natural justice procedures with which the Tribunal is required comply. As a result, although the Tribunal may be blameless, the third party’s fraud may result in jurisdictional error: [14]; and
(d) A failure by an agent to inform a visa applicant of a particular matter or mere negligence on the part of the agent will not necessarily constitute a fraud on the Tribunal: [18].
[12] With one qualification, the Respondent accepts as correct all of the principles stated above. The qualification is that the final principle should be stated in stronger terms – a failure to inform or mere negligence or inadvertence on the part of a migration agent will not amount to fraud in the relevant sense and will not vitiate the decision of the Tribunal: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53] per curiam; SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [33] per Besanko J.
[13] Two additional matters should also be noted.
[14] First, the Tribunal’s processes will not be stultified where an applicant is somehow complicit in the fraud: SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170 at [21] per Branson J, [34] per Lindgren J and [93] per Graham J.
[15] Secondly, before making a finding of fraud, the Court must have regard to the high level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336: see SZLIX v Minister for Immigration and Citizenship (2008) 245 ALR 501 at [33] per curiam. An applicant does not need to identify any motive or reason for the Applicant’s fraud. However, the absence of any motive or explanation would, it is submitted, make the Court less inclined to accept that fraud has in fact occurred. Thus, in SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 at [22] the Full Court said:
‘The evidence as it presently stands does not establish fraud in the sense of a deliberate attempt by the agent for improper motives to deceive the appellant and to prevent her from attending the Tribunal hearing … There is no proper basis at present for an inference to be drawn that the failure on the part of the agent to pass on the Tribunal invitation to the appellant or otherwise to inform her of the Tribunal hearing was conduct intended to deceive her or to protect the agent’s interests.’”
The applicant relies on his evidence (see further below) to assert that there were deliberate acts on the part of his migration agent (predominantly Mr Li, but also possibly Ms Yu), including signing the form which indicated that the applicant would attend the hearing, and returning the form to the Tribunal. The applicant says that these acts were “fraudulent”.
In his submissions, the applicant relied on a number of authorities for the following propositions.
First, the applicant alleged that the signature on the key relevant document (the RHI form submitted to the Tribunal) was not his signature. His evidence was that he predominantly dealt with Mr Li (but, on occasion, he dealt with Ms Yu) whom he believed to be the principal of the migration agency. [As set out above, Ms Yu is the registered migration agent. There is no evidence to determine whether or not Mr Li is a registered migration agent.]
While the applicant asserts that the signature on the form was not his, he could not be certain whether the signature on the form was placed there by Mr Li or Ms Yu (or, indeed, someone else). The applicant’s submission was that to make out his case, he did not need to identify a specific person to have acted fraudulently. Rather, it was sufficient that a fraudulent act was committed by some person (in context, some third person to the applicant and the Tribunal) (SZFDE at [27] and the reference there to Grace Pushpa Wati v Minister for Immigration & Ethnic Affairs & Anor [1996] FCA 1043 per Lindgren J – “a decision would be able to be reviewed where it was induced or affect by the fraud of some person…”).
Second, any subverting of the hearing rule before the Tribunal resulted in a “fraud of the first magnitude” (SZFDE at [32]). In the current case, the action of the person who placed their signature on the form to the Tribunal acted to “subvert” the operation of s.425 of the Act in relation to the Act.
Third, while there are many ways that fraud can be manifested, the factual situation before the Court in SZIVK is close to the current situation. Further, fraud was found in SZIVK (see [31] – [35] and especially at [33] per Finkelstein J – see above at [16]).
A finding of fraud against any person is a serious matter. In the current case, such a finding could, and likely would, affect the professional standing and reputation of a registered migration agent.
Further, it is the case that a finding of fraud does require a finding that the person acted knowingly or was recklessly indifferent to its truth. That is, in context, knew that the signature of the RHI form was false, or was indifferent to that.
The absence of both Ms Yu and Mr Li, and their evidence, before the Court is unfortunate for a number of reasons given the state of uncertainty that this creates.
While the applicant’s case could have possibly been otherwise made out, it requires the Court to draw inferences of what “a person” could have done without hearing from either of the relevant persons (Ms Yu and Mr Li). Such notions as “knowing intent”, or “reckless indifference”, (to be derived from inferences as to what must have occurred), make the applicant’s task even harder. Noting of course that to make out his position the applicant does not have to “prove” the motivation of the person who signed the RHI form.
Further, the state of the migration agent’s file does nothing to assist in any finding of fraud.
For example, the applicant argued that the time between the receipt of the facsimile of the hearing invitation by the migration agent (7.11pm, 17 October 2012 – CB 89) and the transmission of the signed RHI form to the Tribunal (18 October 2012 – 9.34am – CB 98) would allow an inference to be drawn that the migration agent did not receive instructions from the applicant, nor was the form signed by the applicant. Rather, a person (not the applicant) signed the form and it was then returned to the Tribunal.
The applicant sought to draw on the absence of any relevant file note as further evidence in support of the proposition that the applicant was not contacted by the migration agent before the response was sent.
However, as the Minister submitted, the file reveals the absence of any file notes whatsoever. The applicant’s file, maintained by the migration agent, only contains some copies of documents submitted to, and received from, the Minister’s department and the Tribunal. Even in that regard the file is not complete. For example, there is no copy of the relevant RHI form.
The applicant drew the Court’s attention to the fact that a code of conduct exists in relation to registered migration agents. However, any such code does not, as the Minister submits, assist the applicant in establishing fraud. Even if the migration agent was required to keep file notes of conversations with clients, and failed to do so, or otherwise breached the code of conduct, this of itself is not revelatory of fraud.
The real starting point for consideration in these circumstances is the applicant’s evidence to the Court, given both by way of affidavit and orally.
The first question in this regard is whether or not the applicant signed the RHI form (CB 98). It must be said that, in this regard, there are a number of difficulties with the applicant’s evidence.
For example, the Minister referred to the applicant’s evidence as to a number of documents submitted in relation to his protection visa application and to the Tribunal (for example, the “Change of Contact Details” form – CB 88). His evidence was that he was unsure whether the signature on that form was his signature. Further, that he did not recall seeing the form. Before the Court, the applicant gave evidence, with certainty, that the signature on this form was his.
Further, the Minister submitted that the applicant’s evidence as to which of the many signatures on the various documents in the Court Book was his signature should be given little weight because the applicant agreed that, in any event, his signature varied from time to time. I agree with the Minister on this point.
The import of the respondent’s submission is that any reliance on the relevant signature on the RHI form being different to that on other forms would not assist the applicant given his evidence that his signature varied. However, that does not detract from the applicant’s evidence that the signature on the RHI form was not his signature. The applicant was not shaken on that evidence.
A third matter relied on by the Minister was the applicant’s demeanour in the witness box. The Minister submitted that the applicant was trying “very carefully” to make sure he had answered the “right question in response to the right document”. The Minister sought to reflect adversely on the applicant’s relevant answers as to whether a number of signatures on the relevant documents were his or not, by what he said was the applicant’s focus on “shuffling” through the documents to make sure of the nature of the document, rather than just answering the question as to whether each of the signatures was his. Similarly, the applicant’s answers in relation to some of the presented signatures were that he could “not remember”.
Some care must be taken with “demeanour” in assessing credibility. It is the case that, as submitted by the Minister, the Court also observed the applicant “shuffling” through various documents. However, in the circumstances, caution must be exercised in immediately accepting that the applicant was demonstrating some attempt to ensure that he did not agree that he had signed the relevant document. The applicant may have simply been seeking to ensure that he did not mislead the Court. Being “careful” does not, on its own, reveal some attempt by the applicant to lie in his evidence.
In my view, and on balance, I accept the applicant’s evidence that the signature on the RHI form was not his signature. I note that, for current purposes, it does not matter who put the signature on the document. There was no real dispute that, if it was accepted that it was not the applicant’s signature, the signature would have been put there by Ms Yu, Mr Li, or some other person in employment at the agency.
However, I also take the view that what is important is, on the evidence presented, the nature of the relationship between the applicant and Mr Li and Ms Yu.
The applicant saw Mr Li as being “[i]n charge of my application and the firm at Eternity International Pty Ltd”. Ms Yu was seen, by the applicant, as a “junior employee”. Before the Court, it was clear that the applicant saw Mr Li as the person who would prosecute his affairs in relation to his application for the protection visa, and the application for review. In short, the applicant saw himself as being reliant on Mr Li in this regard. He acted on this basis.
This reliance extended to the applicant being content, for example, for Mr Li to prepare, and file, his application to this Court. That is, in the circumstance, where he alleges wrongdoing on the part of Mr Li in the earlier conduct of his affairs,
Here also the inconsistency in the applicant’s evidence before the Court is important. In his affidavit, the applicant’s evidence was that Mr Li prepared his application to this Court and provided the post office box details of Eternity International as the relevant postal address to the Court proceedings. However, the applicant also states that he was “an unrepresented applicant” before the Court (in context, at the time of the making of his application to the Court and before his current legal representatives became involved). He also states that he did “not know who filed the Federal Magistrates Application…for me” ([12] of his affidavit).
Even on its own, it is difficult to accept the applicant’s evidence that he did not know who filed the application for him. However, when regard is had to the applicant’s own affidavit evidence in the immediately preceding paragraphs ([11] – [12]) it is clear that Mr Li, or someone on his behalf, caused the application to be filed with the Court.
The applicant’s evidence on this matter of his application to the Court is also revelatory of his relationship with Mr Li.
The applicant was shown the “original” page 4 to his application to the Court (“RE1”). This page contains a signature over the descriptor of “the applicant”. At first the applicant said it was his signature. When it was put to him that the document on which it appeared was his application to the Court he then said: “No. Actually I didn’t sign this”. Subsequently, he said that he did sign the document.
This latter gives some strength to the Minister’s submissions that the applicant, in effect, was being “careful” in his evidence to the Court about what he said he signed and what he said he did not sign.
But, the import of this is the evidence that the applicant also gave, ultimately, that although he signed it he did not know what the document was, even though his other evidence was that Mr Li had prepared the document on his behalf (see [12] of his affidavit).
An important part of the applicant’s evidence in this regard was that it was “common” for him to sign documents that his migration agent gave to him without knowing what the documents were. His evidence was that he “trusted” his migration agent to “prepare” documents for him. His evidence was also that documents were submitted in circumstances where he did not know what the documents were, nor the timing of any such lodgement.
Before the Court, the applicant’s evidence was equivocal as to whether he actually gave his migration agent express permission to conduct his affairs in this way. Nonetheless it was clear from his evidence that he knew that this was happening. [His evidence was that he did not know when the relevant documents were submitted to the Tribunal and to the Court.] In the circumstances, it is open to say that the applicant, by his own conduct, implicitly agreed with this method of operation and was complicit in the conduct of the migration agent in acting on his behalf in this fashion.
The applicant also gave evidence that he knew that there would be, at some time, a hearing before the Tribunal. He gave evidence that he frequently approached his migration agent to ask about his case, including when the Tribunal hearing would be held ([8] of the applicant’s affidavit).
In the circumstances, the applicant’s explanation as to how he found out that he had missed the Tribunal was not clear. In essence, he said that he found out because there were two “missed call” notices on his mobile phone. They were from an “unidentified number”. He had assumed the calls were from the Tribunal. The basis for this assumption remained unexplained.
There is nothing in the material before the Court to show that the Tribunal, or an officer of the Tribunal, attempted to ring the applicant to inquire as to why he missed his hearing before it. In any event, it must be expected that any such call would, in the first instance, have been directed to the applicant’s migration agents who were his representatives in the review.
Ultimately, the applicant himself largely provided the answer to the question which he has asked the Court to consider. That is, whether “a person” has committed fraud such as to vitiate the process before the Tribunal. The applicant’s evidence was that he spoke to Mr Li (in context, at a time after the scheduled hearing with the Tribunal). He says he was told by Mr Li that an “assistant” in the migration agent’s office had forgotten to tell the applicant about the hearing. In context, implicit in this is that someone other than the applicant signed the RHI form.
The applicant’s evidence was also that Mr Li apologised for this (that is, forgetting to tell him of the hearing date) and told the applicant he would “make it up to him” and either “go to the RRT or go to the Federal Court ([11] of his affidavit, and confirmed in oral evidence before the Court). There was no evidence from the applicant that he formed any view that Mr Li had lied to him about this. Nor was there any suggestion in the applicant’s submissions to the Court to this effect.
What is left, therefore, is that the applicant saw no real difficulty with Mr Li, or someone on his behalf, signing the RHI form. Given the other evidence from the applicant as to the conduct of his affairs by Mr Li, in which he willing participated, both before and after the time of the RHI form matter, the appearance of a “forged” signature was consistent with this pattern of behaviour in their respective roles in their relationship. That is, the applicant left the conduct of his migration affairs to Mr Li, and, to a lesser extent, to Ms Yu.
The applicant’s subsequent conduct in accepting Mr Li’s offer, and participating in the application to Court prepared by Mr Li, strongly supports the view that he accepted Mr Li’s explanation, and continued to rely on him.
Taken at its highest, the failure to tell the applicant of the hearing date may demonstrate negligence on the part of Mr Li or Ms Yu or both, in the management of their business, and negligence on the part of the unnamed employee. However, it does not reveal fraud on the part of any third party such as to vitiate the process before the Tribunal. That is, in the way explained in SZFDE.
In addition, even if the applicant had no specific knowledge that a signature purporting to be his signature was placed on the RHI form, at the time it was placed there, he was by his previous conduct, and confirmed by his subsequent conduct, complicit in the placing of the signature on the RHI form. His evidence is such that he was not only initially indifferent to the placing of the signature of the RHI form, but that this was consistent with how his agent conducted his application on his behalf.
In summary, therefore, the applicant and his agents conducted the applicant’s relevant affairs in such a way that the applicant left matters of substance and detail to them. The evidence shows that, at least implicitly, he agreed to the submission of relevant documents on his behalf even in circumstances where he had no knowledge of their content or import.
Even if the signature on the RHI form was put there by a third party, it was done in circumstances where the applicant was complicit in such conduct in the carriage of his matter. On his own evidence the applicant was denied the opportunity of a hearing, a hearing that he otherwise wished to attend, because of the negligent conduct of the migration agent’s employee. No fraud is revealed in these circumstances.
Conclusion
The sole ground of the application to the Court, as further amended, is not made out. It is appropriate that the application to the Court be dismissed. I will make an order accordingly.
Postscript
While I have been unable to find fraudulent conduct, as such, on the part of the migration agent, it may be appropriate in the circumstances that the Minister, at least, if not the applicant, notwithstanding his former relationship (as described above), refer the conduct of Ms Yu, as the registered migration agent, to the Office of the Migration Agents Registration Authority for investigation. Mr Li’s conduct, as alleged by the applicant, also requires some investigation (noting also that it is the applicant’s evidence ultimately, that, despite not being a lawyer, Mr Li prepared and filed the application to this Court).
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 8 July 2013
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