SZUYP v Minister for Immigration and Anor (No.3)

[2018] FCCA 2523

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYP v MINISTER FOR IMMIGRATION & ANOR (No.3) [2018] FCCA 2523

Catchwords:
MIGRATION – Application seeking review of the decision of the former Refugee Review Tribunal – order previously made extending time – whether fraud on the part of former migration agent – fraud not made out – whether former migration agent failed to comply with the migration agents code of conduct – no jurisdictional error revealed – application dismissed.

Legislation:

Evidence Act 1995 (Cth), s.91

Migration Act 1958 (Cth), ss.36, 314, 417, 425, 476, 477

Migration Agent Regulations 1998 (Cth), sch.2, cl.2.8, 2.19

Cases cited:

SZUYP v Minister for Immigration & Anor [2016] FCCA 3115

SZUYP v Minister for Immigration & Anor [2017] FCCA 860
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398
SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226

Applicant: SZUYP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2372 of 2014

Judgment of: Judge Nicholls

Hearing dates: 27 February 2017 and 30 January 2018

Date of Last Submission: 30 January 2018

Delivered at: Sydney

Delivered on: 10 September 2018

REPRESENTATION

Counsel for the Applicant: Mr D Godwin by direct access

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The first respondent to file and serve evidence by way of affidavit on the matter of costs on or before 24 September 2018.

3. The first respondent to file and serve written submissions in support of the application for costs on or before 24 September 2018.

4. The applicant to file and serve written submissions in reply on or before 8 October 2018.

5. The hearing of the first respondent’s application for costs is set down on a date to be administratively advised to the parties.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2372 of 2014

SZUYP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 25 August 2014 seeking review of the decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 16 May 2013, which affirmed the decision of the delegate of the Minister (“the delegate”) to refuse a protection visa to the applicant.

2. The applicant in these proceedings initially made an application pursuant to s.477(2) of the Act for an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act. The hearing for the extension of time occurred on 20 May 2016, 24 May 2016, 1 November 2016 and 9 December 2016. I granted the application for an extension of time on 9 December 2016.

3. During the course of the hearing of the application for an extension of time, the applicant sought to tender a document from the Office of the Migration Agents Registration Authority (“OMARA”) into evidence. The Minister objected to the document on the basis that it was inadmissible due to s.91 of the Evidence Act 1995 (Cth). The tender was ultimately refused and judgment was delivered on 2 December 2016 (see SZUYP v Minister for Immigration & Anor [2016] FCCA 3115 (“SZUYP (2016)”)).

4. The final hearing of the substantive application commenced on 27 February 2017. At the final hearing, the Minister sought leave to read the affidavit of Julian D’Arcey Pinder made on 24 February 2017, after the applicant’s case had closed. The applicant opposed the leave sought. Leave was granted to the Minister to read that affidavit, but the applicant was also granted leave to re-open his case if he elected to do (for a limited purpose) (see SZUYP v Minister for Immigration & Anor [2017] FCCA 860) (“SZUYP (2017”)).

5. The applicant did elect to re-open his case and the final hearing resumed on 30 January 2018.

6. The affidavit evidence before the Court is as follows:

   a)The affidavit of the applicant made on 21 August 2014 (no objection).

   b)The affidavit of the applicant made on 2 March 2015 (no objection).

   c)The affidavit of the applicant made on 5 March 2015 (no objection).

   d)The affidavit of the applicant made on 12 May 2016 (no objection).

   e)The affidavit of the applicant made on 21 December 2016 (no objection).

   f)The affidavit of the applicant’s wife, [no occupation specified], made on 13 May 2016 and associated exhibit “NA1” (no objection).

   g)The affidavit of Julian D’Arcey Pinder, solicitor, made on 24 February 2017 (a redacted version, see SZUYP (2017) at [52] and see above at [4]).

7. The applicant and his wife were cross-examined on their affidavits. Mr Issam Issa, solicitor, and Mr Hulio Gash, migration agent, also gave oral evidence to the Court.

8. Further documentary evidence before the Court is as follows:

   a)A copy of the applicant’s former solicitor’s file (“AE1”).

   b)A “White Pages” (business and government) Melbourne 2014/15 phonebook was provisionally admitted due to relevance (“AE2”). [Ultimately not required.]

   c)A “Notification of Ministerial intervention request outcome under section 417 of the Migration Act 1958” (“AE3”).

   d)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

   e)A piece of paper containing the “first name” of a migration agent handwritten by the applicant (“RE2”).

   f)A copy of a request for Ministerial Intervention sent to the Minister from Mr Hulio Gash on behalf of the applicant dated 28 April 2014 (“RE3”).

   g)A copy of a request for Ministerial Intervention sent to the Minister from Mr Hulio Gash on behalf of the applicant dated 28 July 2014 (“RE4”).

   h)A copy of the transcript of the hearing before the Court on 20 May 2016 (“RE5”).

   i)A copy of the transcript of the hearing before the Court on 24 May 2016 (“RE6”).

   j)A bundle of documents containing a copy of an “Acknowledgement of Request to Waive 8503 No Further Stay Condition” sent to the applicant and dated 13 January 2014, correspondence from the applicant and his wife to the Minister’s department, a medical certificate regarding the applicant’s wife, and copies of the applicant and his wife’s marriage certificate (“RE7”).

   k)A Statutory Declaration of Hulio Gash dated 19 May 2016.

9. Initially in these proceedings, the applicant also handed up a bundle of three documents comprising country information about Syria and Lebanon. I marked the bundle for identification (“MFI1”) (however, see below at [198] – [205]).

10. The Minister also handed up a bundle of documents as an “aide memoir” to AE1.

11. The applicant also handed up a document said to be an “aide memoir” to AE1.

Background

1. The applicant filed the application for an extension of time and proposed substantive application on 25 August 2014. The applicant then filed an amended proposed substantive application on 6 March 2015 and a further amended proposed substantive application on 20 May 2016.

2. The background to this matter is outlined in SZUYP(2016) at [4] – [14] as follows:

   “[4] The applicant is a citizen of Lebanon who arrived in Australia on 23 September 2012 (CB 4). He applied for a protection visa on 24 October 2012 (CB 1 to CB 34). He was assisted with the application by a person who, at that time, was a registered migration agent and also a solicitor (Mr Issam Issa). The agent was authorised to receive correspondence on the applicant’s behalf (CB 1 to CB 25 and CB 28 to CB 31).

   [5] The applicant was invited by letter sent to Mr Issa from the Minister’s department to attend an interview with the delegate (CB 47 to CB 51).

   [6] On 2 February 2014, Mr Issa responded to the Minister’s department on the applicant’s behalf in the following terms (CB 55):

   ‘We refer to above matter and are instructed to advise that our client does not wish to attend the scheduled interview and requests a decision to be made on the papers before the Department as per the attached signed authority.’

   [7] See also at CB 56 which on its face, appears to be an authority signed by the applicant (that which is referred to in the letter to the Minister’s department from Mr Issa reproduced at [6] above, and see also references to the applicant’s non-attendance at the interview at CB 77.5 and [5] at CB 113).

   [8] The application was refused by the delegate (CB 58 to CB 82). The applicant applied for review to the Tribunal on 12 March 2013 (CB 83 to CB 89). Mr Issa continued to represent the applicant at that time (CB 83 and CB 86).

   [9] The applicant was invited by letter dated 16 April 2013 to attend the hearing before the Tribunal scheduled for 29 May 2013 (CB 98 to CB 99). The letter was sent to Mr Issa who had been authorised to receive correspondence on the applicant’s behalf in relation to the review (CB 97).

   [10] A completed ‘Response to Hearing Invitation’ form was sent to the Tribunal on 23 April 2013. It advised that the applicant would attend the hearing. It appears the response was signed by Mr Issa (CB 106 to CB 107).

   [11] On 16 May 2013 Mr Issa sent a letter to the Tribunal, which contained the following (see CB 108):

   ‘We refer to above matter and are instructed to request that a decision be made on the papers before the Tribunal.

   We enclose herewith Authority for your records.’

   [12] See also CB 109 which appears to be an authority signed by the applicant and dated 16 May 2013 (that which is referred to in the letter sent from Mr Issa to the Tribunal and reproduced at [11] above).

   [13] The Tribunal affirmed the delegate’s decision on what had been put before it (CB 112 to CB 116).

   [14] The applicant applied to the Court for judicial review of the Tribunal’s decision. Although it was not entirely clear from the grounds of the application, the applicant and his wife made clear at the first Court date on 1 October 2014, that his complaint was directed to Mr Issa. That is, as his migration agent, Mr Issa engaged in certain conduct which led to the Tribunal affirming the delegate’s decision without the applicant having the opportunity to be heard.”

The Substantive Application to the Court

1. The grounds of the further amended substantive application to the Court are in the following terms:

   “1. Jurisdictional error arising from the failure to comply with s 425 of the Act

   Particulars

   The Tribunal’s attempt to comply with s 425 of the Act was stultified by the fraud of the applicant’s Migration Agent as he induced the applicant to sign a document which waived his right to a hearing on the pretence that the document was authorising the Agent to appear on his behalf.

   2. The applicant’s agent’s failure to follow requirements of the Migration Agent’s Code of conduct clauses 2.8(b) and 2.19, made mandatory by s 314(2) of the Act, tainted the Tribunal decision with jurisdictional error.

   Particulars

   The agent did not follow the instructions of the applicant to attend at the hearing, and did not ensure that sufficient relevant information was before either the department or the Tribunal allow a full assessment of the facts against the relevant criteria.”

2. Throughout the proceedings, the applicant and the Minister were represented by counsel.

Consideration

1. Ground one of the further amended application raises the question of whether the Tribunal’s exercise of jurisdiction was “stultified” by the fraudulent conduct of the applicant’s then migration agent, Mr Issam (Sam) Issa.

2. The applicant and his wife gave evidence to support the proposition that the applicant was induced by Mr Issa to sign a document which “waived” his right to a hearing before the Tribunal.

3. Mr Issa’s fraudulent conduct was said to be that he “induced” the applicant to sign this document on the “pretence” that the applicant was authorising Mr Issa to appear at the Tribunal hearing on his behalf. 

4. The applicant relied on SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 (“SZFDE”) to argue that Mr Issa’s conduct was fraudulent, and that this meant that the Tribunal’s obligation to invite the applicant to a hearing pursuant to s.425 of the Act was “stultified”, thus revealing jurisdictional error.

5. While there are a number of issues relevant to the disposition of the question posed by ground one, the differences in the evidence of the applicant on the one hand, and Mr Issa on the other, with respect to various events, is central to this consideration.

6. The differences are so distinct that both parties appeared to accept that at least in some key respects, the Court will need to decide whose evidence is to be preferred.

7. In this light, the applicant’s submission was that the Court should accept his evidence that he relied on Mr Issa to prepare his visa application and to conduct matters relevant to the application process.

8. In essence, the applicant submitted that his lack of English, limited education and lack of experience with the Australian immigration system are to be “favourably” compared with Mr Issa, a solicitor of many years, who was acting as a registered migration agent (with relevant experience), to find that the applicant was wholly reliant on Mr Issa to progress his application.

9. General comparisons of that type are of limited assistance.  As was made clear in SZFDE, for the applicant to succeed in the current case, the Court would need to find that Mr Issa acted fraudulently in his relevant dealings with the applicant, and that that conduct had the effect of “stultifying” the operation of s.425 of the Act.

10. Assistance and direction was relevantly provided to this Court in Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 (“Gill”) (at [46]) with reference to SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73 (“SZSXT”) as follows:

    “In SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; 222 FCR 73 (SZSXT), Perram, Robertson and Griffiths JJ summarised some relevant principles established in SZFDE relating to fraud in a public law context, including a migration case. Those principles are set out in [51] of SZSXT (the paragraph references are to SZFDE):

    (a) in the framework of general legal principle, fraud can come in various guises and is ‘infinite in variety’ [8];

    (b) different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution [11];

    (c)‘fraud’ can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses ‘bad faith’ [17];

    (d) in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud [20];

    (e) another practical aspect of fraud in public law which may set it apart from fraud in civil law is that ‘often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted’ [22];

    (f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party's representative [25]-[27]; and

    (g) there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for ‘third party fraud’ of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time [28]. But in the particular circumstances in SZFDE the rogue's fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud ‘on’ the Tribunal which meant that the Tribunal's jurisdiction remained constructively unexercised [51]-[52].”

11. The applicant’s summary of his evidence, relevant to the Tribunal’s decision, is essentially as follows.  He engaged Mr Issa to assist him to obtain a protection visa. Ultimately, he attended Mr Issa’s office on 16 May 2013.  Mr Issa told him that there was a “review” of the delegate’s decision.  The applicant asserted that he asked Mr Issa if he could attend at the “review” with him ([4] of the applicant’s written submissions of 25 August 2017).

12. The applicant says that Mr Issa told him he did not have to attend and that he would go to “Court” (in context, the Tribunal) for him.  The applicant says he was then given the document now before the Court at page 59 of “AE1”.  He says that Mr Issa told him to sign “the paperwork”, and that he would attend at the Tribunal hearing on his behalf ([4] of the applicant’s written submissions of 25 August 2017).

13. The Court Book reveals that Mr Issa sent a letter to the Tribunal, by facsimile, on 16 May 2013.  The letter advised the Tribunal that Mr Issa had been instructed to request that a decision be made “on the papers”.  Enclosed was a copy of the document said to have been signed by the applicant, which stated that the applicant gave authority to his “solicitor” to make that request (CB 108 to CB 109).

14. The Tribunal proceeded to make its decision.  It noted that the applicant had been invited to a hearing, but that on 16 May 2013, “his advisor informed the Tribunal in writing that the applicant wished the matter to be determined without a hearing” ([6] at CB 113).

15. While the applicant’s evidence and submissions also focused on events before and after that time, it is those events which provide the basis for the applicant’s assertion that the Tribunal’s decision was vitiated, or “stultified” by the conduct of Mr Issa.

16. If the applicant’s evidence and submissions were to be accepted, the question arises as to whether Mr Issa’s conduct was fraudulent and, in the sense explained in SZFDE, Gill and SZSXT, led to the “stultification” of the Tribunal’s decision.

17. However, the Minister disputed the applicant’s account of relevant events, and asked the Court to review the relevant events in light of what he says are the difficulties with the applicant’s evidence, the strength of Mr Issa’s evidence, and other evidence before the Court.

18. For his part, the applicant seeks to impugn the evidence of Mr Issa, both in relation to the immediate events set out above, and in light of Mr Issa’s conduct both before, and after, the relevant events, and his claimed motivation, drawn from other evidence before the Court.

19. The applicant understood the critical elements of Mr Issa’s evidence to be as follows.  One, the applicant’s claims to protection were too “generalised” to succeed ([12] of the applicant’s written submissions of 25 August 2017).  Two, Mr Issa had no instructions on which he could base submissions to the delegate or the Tribunal.  Three, the applicant had signed the document “waiving” the right to a Tribunal hearing because he did not want to attend.

20. While the applicant’s written submissions (filed on 25 August 2017) also identify what are said to be other “critical” elements of Mr Issa’s evidence, they appear to relate to the question of the extension of time, to apply to the Court pursuant to s.477(2) of the Act. This included, for example, when the applicant was informed of his rights to apply to the Court for judicial review.

21. As set out above, the Court extended time pursuant to s.477(2) of the Act on 9 December 2016. However, the Minister and the applicant both relied on this evidence to attack the credit of the applicant and Mr Issa respectively. I have addressed these matters below as they arise from submissions, and importantly, as they go to the actual question of whether the Tribunal’s decision was vitiated by fraud. For example, how the applicant’s allegations of Mr Issa’s “subsequent” conduct (after the Tribunal decision was made) reveals that Mr Issa engaged in fraud (see further below at [150] – [205]).

1. As set out above, the applicant sought to “attack” the evidence of Mr Issa.  The Minister sought to “attack” the evidence of the applicant.

2. It is of assistance to note the following chronology.

   a)In early October 2012, the applicant and a friend attended at Mr Issa’s office (the affidavit of the applicant of 2 March 2015 at [6]).

   b)On 8 October 2012, the applicant again attended at Mr Issa’s office (the affidavit of the applicant of 2 March 2015 at [13]).

   c)The applicant applied for the protection visa on 24 October 2012 (CB 2 to CB 34).

   d)On 10 January 2013, the applicant was invited to attend an interview with the delegate scheduled for 4 February 2013 (CB 49 to CB 54).

   e)On 2 February 2013, Mr Issa sent the request to the delegate that the matter be decided “on the papers”.  This included the authority said to have been signed by the applicant (CB 55 to CB 56).

   f)The applicant did not attend the interview with the delegate (CB 77.5).

   g)The delegate refused the application on 12 February 2013.  Notification of the delegate’s decision was sent to Mr Issa (CB 57 to CB 82).

   h)On 12 March 2013, the applicant applied for review to the Tribunal (CB 83 to CB 89).  Mr Issa was authorised to receive correspondence on the applicant’s behalf (CB 87).

   i)On 16 April 2013, the applicant was invited to attend the hearing before the Tribunal scheduled for 29 May 2013 (CB 97 to CB 99).

   j)On 23 April 2013, the Tribunal received (by facsimile) a completed “Response to Hearing Invitation” form which indicated that the applicant and Mr Issa would attend the Tribunal hearing (CB 105 to CB 107).

   k)On 16 May 2013, Mr Issa sent the Tribunal notification that the matter should be decided on the papers.  The authority said to have been signed by the applicant and dated 16 May 2013 was enclosed in a facsimile (CB 108 to CB 109).

   l)The applicant did not attend the Tribunal hearing ([6] at CB 113).

   m)The Tribunal made its decision on 16 May 2013 (CB 112 to CB 118).

   n)Notification of the Tribunal decision was sent to Mr Issa on 17 May 2013 (CB 110 to CB 118).

3. Dealing first with the applicant’s evidence as to the “critical events”, the Minister sought to characterise the applicant’s evidence, generally, as being “at times evasive, inconsistent… and in some respects, objectively false” ([24] of the Minister’s written submissions of 22 September 2017).

4. The Minister sought to make good that latter proposition with reference to the applicant’s evidence as to when he first became aware of the Tribunal’s “adverse” decision.

5. The applicant’s evidence, and that of his wife, was that he first became aware of the Tribunal’s decision in August 2014. This was when they attended at the office of Mr Gash, the migration agent that the applicant consulted following his attendance at the Minister’s department’s offices, after being told by Mr Issa to go there and to “pick up” his visa. His evidence was that he was told by the officer at the Minister’s department that he was “without a visa”. He was not told of the Tribunal’s adverse decision (see the applicant’s affidavit of 2 March 2015 at [24] – [26]).

6. The applicant’s and his wife’s evidence was that Mr Gash obtained from Mr Issa, and gave them, a bundle of documents which Mr Gash identified as “Sam Issa’s file” (see the applicant’s wife’s affidavit of 13 May 2016 at [3] and the applicant’s affidavit of 2 March 2015 at [30]). 

7. The applicant subsequently gave evidence that Mr Issa gave him the file, and then he gave it to Mr Gash (the applicant’s affidavit of 12 May 2016 at [11]). In the applicant’s written submissions, the assertion is that the applicant obtained a copy of his file from Mr Issa (see [6] of the applicant’s written submissions of 25 August 2017). On this explanation, the applicant had a copy of his file earlier than at first claimed.

8. In any event, it appears that what the applicant relied on was that this “bundle” contained some, but not all, of the Tribunal’s decision record.

9. The applicant’s evidence and that of his wife, was that they only obtained a complete copy of the relevant Tribunal decision on or about 18 August 2014 (see the applicant’s affidavit of 2 March 2015 at [30]).  The assertion was that it was only at that time that the applicant realised that he had been unsuccessful on review because he had not attended at the Tribunal hearing.

10. The Minister submitted that this is “false” evidence when it is compared with other “objective” evidence before the Court ([25] of the Minister’s written submissions of 22 September 2017).

11. First, the Minister submitted that the applicant knew of the Tribunal’s adverse decision when he attended at the Minister’s department’s offices on 18 July 2013, (with reference to page 9 of annexure “JDP01” to Mr Pinder’s affidavit of 24 February 2017).  The applicant’s wife was also present when he was interviewed at the Minister’s department’s offices.

12. The Minister submitted that the file note (at page 9 of annexure “JDP01” to Mr Pinder’s affidavit of 24 February 2017) records that the applicant and his wife were told of the Tribunal’s adverse decision on that date:

    “…The client stated he did not receive the notification letter but his Migration Agent did.”

    [In context, the reference to the migration agent must have been a reference to Mr Issa.]

13. The applicant submitted now that the fact that he was recorded as saying that his migration agent received the decision is not “proof” that the agent had given him a copy or read it to him.

14. It is to be remembered that the Minister’s submission here was not necessarily focused on when, or if, Mr Issa told the applicant of the Tribunal’s decision.  Rather, it was to highlight the inconsistency of the evidence of the applicant (and that of his wife), with other evidence before the Court.

15. The applicant’s evidence was that Mr Issa had not told him of the adverse Tribunal decision.  There was nothing in his affidavit evidence to say that the Minister’s departmental officers told him of the Tribunal’s adverse decision.  His evidence can be properly, and fairly, understood as being that he was bewildered by what occurred at the Minister’s department’s office when he went there on Mr Issa’s instruction.  The applicant then submitted that it was only when he received the Tribunal decision on 18 August 2014 that he became aware of it.

16. The applicant’s wife’s evidence was that she did not recall if the Minister’s departmental officers made any mention of the Tribunal’s adverse decision (see the applicant’s wife’s affidavit of 13 May 2016 at [2]).

17. The departmental file note does not, on its own, establish that Mr Issa told the applicant at an earlier time of the Tribunal’s decision.  Nor does it establish that the applicant knew of the reason for that decision.

18. What it does show is that the Minister’s departmental officers told the applicant and his wife, that an application to the “RRT” [the former Refugee Review Tribunal, now the Administrative Appeals Tribunal] had been unsuccessful.  It may be that the applicant had not received the notification letter, but as at 18 July 2013, he was put on notice of the Tribunal’s adverse decision.

19. This stands in contrast to the applicant’s own evidence, and that of his wife.  The contemporaneous file note of what the applicant was told by the Minister’s departmental officers is to be preferred to his evidence, and that of his wife given some years later. That is, I prefer the evidence that the applicant did know, at that time (18 July 2013), that the Tribunal had made a decision adverse to him.

20. Second, the Minister’s written submissions referred to a letter drafted by the applicant’s wife on his behalf dated 9 January 2013, and received by the Minister’s department on 13 January 2014 (“RE7”). [Although dated 9 January 2013 it must have been drafted later as it relates to events post January 2013.]  The Minister directed attention to the following from the letter (see “RE7” at page 5.3):

    “I applied for a Protection Visa, which was rejected.  I appealed the decision with the Migration Review Tribunal [in context the Refugee Review Tribunal], but it was rejected once more.”

21. Although not referred to by the Minister, in his written submissions, I note the letter continues with (see “RE7” at page 5.4):

    “The case for the Protection Visa is now with the Minister and I am currently awaiting the outcome.”

22. The following chronology is relevant to note here:

    a)24 October 2012: the date that the applicant’s protection visa application is received by the Minister’s department.

    b)12 February 2013: the date that the delegate’s decision is made.

    c)12 March 2013: the date that the applicant’s his review application to the Tribunal is made.

    d)16 April 2013: the date that the applicant is invited to attend at the hearing before the Tribunal.

    e)16 May 2013: the date that the letter indicating that the applicant’s matter should be decided “on the papers” is sent by Mr Issa to the Tribunal (by facsimile).

    f)17 May 2013: the date that Mr Issa is notified of the Tribunal’s decision.

    g)13 January 2014:  the date that the applicant’s letter (“RE7”) is received by the Minister’s department.

23. It is to be remembered that the applicant’s evidence (and that of his wife), was that it was only after 18 August 2014, that the applicant knew he had been unsuccessful before the Tribunal.  The contents of the letter of 13 January 2014 (drafted by his wife (“RE7”)), approximately seven months prior, stands in contrast to that evidence.

24. The applicant’s submissions before the Court sought to draw a distinction between the applicant’s “knowing” that a decision had been made by the Tribunal in his case, and “knowing” the reasons for that decision.  The applicant’s submission was that by the time he had written to the Minister’s department (on 13 January 2014), “he had been informed by the [Minister’s] department that the Tribunal had made an adverse decision but not why the decision was adverse” (page 10 of the applicant’s written submissions of 5 October 2017).

25. Even if that were the case, the applicant’s own evidence to this Court, was that he only became aware of the Tribunal’s decision (as opposed to the reasons for the decision) in August 2014.  Although I note that on his evidence, he says that he obtained the Tribunal’s decision record from the Tribunal on 18 August 2014 (see the applicant’s affidavit of 2 March 2015 at [30]).

26. The applicant’s own letter of 13 January 2014, makes clear that he knew of the Tribunal’s decision, at least, as at that date.

27. The applicant’s wife’s evidence in this regard is also of concern. This is in light of the applicant’s evidence that his wife drafted the letter of 13 January 2014, which contained the reference to the outcome of the Tribunal’s decision.  Yet the applicant’s wife’s evidence to the Court was that she could not recall that the Minister’s departmental officers told her and her husband in July 2013, that the Tribunal had made its decision.

28. If that is the case, in the absence of any other evidence to the contrary, the reference in the letter of 13 January 2014 to the Tribunal’s decision (“RE7”) stands as the evidence to be preferred as to when the applicant knew of the Tribunal’s decision.

29. However, the immediate and relevant issue, is not necessarily when the applicant knew of the Tribunal’s decision, but the inconsistencies in his, and his wife’s evidence, on an important issue, which reflects on the ability to give weight, or preference, to his, and her, evidence.

30. Third, the Minister also referred to the contents of a letter from Mr Gash dated 28 April 2014 (the migration agent whom the applicant engaged in August 2014) (see “RE3”).

31. Mr Gash wrote this letter to the Minister on the applicant’s behalf, seeking his intervention pursuant to s.417 of the Act as follows (see “RE3” at page 3.8)

    “The applicant’s review for the [delegate’s] decision at RRT was affirmed and currently seeking the Hon Minister’s Intervention.”

32. Therefore, the point to note is that as at April 2014 the applicant would have known his application to the Tribunal had been unsuccessful. A matter in dispute in these proceedings was whether, or when, Mr Issa told the applicant that his application to the Tribunal had been unsuccessful.  The relevance of this is critical to the question of when the applicant knew he had been invited to the Tribunal hearing, and had waived his right to attend.

33. The applicant says he became aware of the Tribunal’s adverse decision in August 2014 when he first obtained a complete copy of the Tribunal’s decision (from the Tribunal), and became aware that he had been unsuccessful because he had waived his right to a hearing.

34. The applicant’s evidence was that Mr Issa never told him of the outcome of his application to the Tribunal (see the applicant’s affidavit of 2 March 2015 at [24]).  The applicant only found out the reason for the Tribunal’s decision in August 2014 when he and his wife obtained a copy of the Tribunal’s decision record from the Tribunal (see the applicant’s affidavit of 2 March 2015 at [30]).

35. The applicant’s wife’s evidence was that she first realised that the applicant’s case had been refused by the Tribunal when she “saw some pages” of the Tribunal’s decision record and “first understood” that the applicant “had lost his case” in the Tribunal (see the applicant’s wife’s affidavit of 13 May 2016 at [4]).

36. That is, the applicant’s wife says she realised the Tribunal had made an adverse decision from the papers Mr Gash gave her and the applicant, but the applicant says he realised when he obtained a copy of the Tribunal’s decision record from the Tribunal, notwithstanding that he had attended at Mr Gash’s office with his wife.

37. The discrepancy here between the applicant’s evidence and that of his wife is, in my view, minor.  Nonetheless, what remains is that on both their evidence, they say they did not know of the Tribunal’s decision until sometime (albeit at different times), in August 2014.  That stands in contradiction to the evidence regarding what they were told by the Minister’s departmental officers in July 2014 (see page 9 of “JDP01” to Mr Pinder’s affidavit of 24 February 2017), and what Mr Gash wrote on their behalf, presumably on their instructions, on 28 April 2014.

38. Of central importance in this matter is the contest between the applicant’s evidence, and that of Mr Issa, of what Mr Issa told, or did not tell, the applicant about his case, and in particular, the applicant’s invitation to the Tribunal hearing and the subsequent “waiver” of his right to attend the Tribunal hearing.

39. It is to be noted that in his evidence before the Court, the applicant’s recollection of relevant events was poor (see further below).

40. In his affidavit evidence of 2 March 2015 (at [7]), the applicant stated that he attended at Mr Issa’s office in “early October 2012”.  Mr Issa advised him he could apply for a protection visa.  On return to Mr Issa’s office on or about 8 October 2012, Mr Issa gave him “paperwork to sign”.  He understood this “paperwork” was in relation to his application for the protection visa. He said that Mr Issa told him “don’t worry about anything, I have it under control[.]  I will take care of everything” (the applicant’s affidavit of 2 March 2015 at [13] – [14]).

41. The applicant claims that he saw Mr Issa on a number of occasions after that.  He signed various documents and paid Mr Issa money.  He could not recall what documents he had been asked to sign.

42. Mr Issa then told him that his application for the protection visa had been “rejected”, and the applicant went to see him to sign documents “for an appeal”. He signed documents which Mr Issa told him were “the paperwork for [his] appeal” (the applicant’s affidavit of 2 March 2015 at [19] – [20]).

43. The following evidence from the applicant is relevant (see the applicant’s affidavit of 2 March 2015 at [21] – [23]):

    “[21] A little while later I received another call from Sam. He said ‘You have a court hearing, you need to come and see me.’ I went to see him at Hunter Street in Parramatta. I think Sam Elkheir was with me.

    [22] I asked Sam if there was a problem in my case. He said ‘your case is in court.’ I asked ‘are you allowed to go without me?’ Sam said ‘you don’t have to go to court don’t worry about anything.’ He said ‘don’t worry about anything I will go to court for you, you don’t have to attend.’ He then gave me a document and asked me to sign. He said ‘sign the paperwork and I will deal with it. I can represent you in court.’

    [23] I have been shown page 109 of the Court Book. I confirm that my signature appears on this page. I do not recall whether this was the document that Sam asked me to sign on this occasion.”

44. The document at Court Book page 109 includes the following:

    “Authority to have decision made on papers

    I, [applicant], authorise and direct my solicitor to request that a decision be made on the papers before the Tribunal.

    Signed

    [Signature]
    ……………

    Date 16/5/13”

45. The view to be taken of the applicant’s oral evidence before the Court was the subject of dispute between the parties in submissions.

46. The Minister submitted that the applicant’s evidence demonstrated that he had no real recollection of the critical events.  The Minister’s submissions refer to a part of the transcript of the applicant’s

    
    

    cross-examination before the Court as follows (T78.25 to T780.1 of 20 May 2016 and see [29] of the Minister’s written submissions of 22 September 2017):

    “MS FRANCOIS:   So the question I asked you was what your solicitor, Mr Issa, told you about the merits of your protection visa application in October 2012.  Do your (sic) recall that?

    THE INTERPRETER:   He didn’t say – Sam didn’t say anything to me.  He just said to me, ‘You’ve been rejected.  Sign here.’

    MS FRANCOIS:   On 5 October 2012, what had been rejected, Mr Applicant?

    THE INTERPRETER:   Sorry.  Can you please repeat the question.

    MS FRANCOIS:   On 5 October 2012, what had been rejected, Mr Applicant?

    THE INTERPRETER:   He had already lodged an application for me, and he told me that the application was rejected, and I signed some papers.

    MS FRANCOIS:   Mr Applicant, do you have a good memory of what occurred in October 2012?

    THE INTERPRETER:   I don’t remember exactly.

    MS FRANCOIS:   Prior to your application being rejected, do you have a recollection – do you have a – sorry.  Prior to your application being rejected, do you have any memory at all of what you and Mr Issa discussed?

    THE INTERPRETER:   Issa only asked me to sign and that’s it.  He didn’t talk to me about any situation.

    MS FRANCOIS:   Your memory of October 2012 isn’t good enough for you to know everything that happened between you and Mr Issa, is it?

    THE INTERPRETER:   Sam didn’t talk to me about anything.

    MS FRANCOIS:   Mr Applicant, is it your answer to any document that’s put before you that Mr Issa didn’t tell you its contents?

    THE INTERPRETER:   He didn’t tell me anything.

    MS FRANCOIS:   So you didn’t know that he was lodging a protection visa application for you?

    THE INTERPRETER:   When I went to him the first time he said to me, ‘You’ve been rejected.  Sign here’, and I didn’t know what I was signing for.

    MS FRANCOIS:   So is your evidence that you didn’t know that Mr Issa filed a protection visa application for you?

    THE INTERPRETER:   I don’t remember.  All I remember is he said to me, ‘You’ve been rejected.  Sign here’, and that’s it.

    MS FRANCOIS:   Mr Applicant, has someone told you what you should say to this court?

    THE WITNESS:   No.

    MS FRANCOIS:   Has someone told you that you should just say that Mr Issa made you sign documents, and you didn’t know what they were?

    THE WITNESS:   No.  No.

    MS FRANCOIS:   Was that a ‘no’?

    HIS HONOUR:   ‘No.  No.’

    THE WITNESS:   No.

    MS FRANCOIS:   And it’s your evidence that you never instructed Mr Issa to lodge a protection visa application on your behalf?

    THE INTERPRETER:   I wasn’t aware of what Sam was doing.”

1. The Minister submitted that this should be contrasted with other evidence in these proceedings (see [85] below).

2. Relevant to the issue of the applicant’s attendance at the Tribunal hearing and the “waiver”, as set out above, the applicant’s affidavit evidence (of 2 March 2015 at [22]), was that Mr Issa told him he [Mr Issa] could go, in context, to the Tribunal hearing.

3. However, the Minister submitted that before the Court, the applicant’s evidence was inconsistent as follows (see T85.18 to T85.20 of 20 May 2016 and [31] of the Minister’s written submissions of 22 September 2017):

   “THE INTERPRETER:   I said to him, ‘Do I have to go?’  He – he said – he said, ‘No.  Just sign here.’  And I thought he either – he either was – he was either going by himself or he was going to fix it himself.”

4. On its face, this appears to be equivocal as to what was actually said at the time, and it stands in contrast to the certainty as to what was said, as set out in the applicant’s affidavit evidence.

5. However, in my view, this inconsistency, in contrast to the inconsistencies set out above, is not of such nature as to cast doubt on the applicant’s evidence to the extent that the Minister urges. 

6. In essence, the applicant’s evidence is that he relied on Mr Issa.  In context, Mr Issa told him that his case was “in the Tribunal”, and that on either version of his oral evidence, that Mr Issa would attend to the matter.

7. Fourth, the Minister submitted that, in essence, the applicant’s oral evidence revealed that he was unaware of the meaning of terms he used in his affidavit of 2 March 2015 (such as “protection visa” and “appeal” see [31](b) of the Minister’s written submissions of 22 September 2017).

8. It is not necessary to go into to detail in relation to this submission. On a fair understanding of the applicant’s reference, the “appeal” to the Tribunal being “for the renewal” of his case, can be seen as coming within what would be acceptable from a person from a

   
   

   non-English speaking background.  There was no doubt that the applicant’s reference to the “renewal”, was a “renewal” of his attempt to attain a protection visa, following his failure to obtain one from the Minister’s department.

9. Fifth, the Minister drew attention to the applicant’s answers in

   
   

   cross-examination as to what he told the Minister’s department about returning to Lebanon as follows (see T42.43 to T43.1 of 20 May 2016):

   “MS FRANCOIS:   And she asked you, if the Minister didn’t grant a visa, what this would mean for you.

   THE WITNESS:   Yes.

   MS FRANCOIS:   And you said you would go back to Lebanon.

   THE WITNESS:   Yes.”

10. This directs attention to that period in the second half of 2013, and early 2014, when the applicant attended at the Minister’s department and was interviewed on a number of occasions by the Minister’s departmental officers (3 July 2013, 18 July 2013, 8 August 2013, 5 September 2013, 3 October 2013, 7 November 2013, 11 December 2013 and 29 January 2014, 28 February 2014 and 4 April 2014).

11. This was also during the period when the applicant’s request for Ministerial intervention was under consideration.  On some of those occasions, the applicant was asked what he would do if the Minister refused his request for intervention.

12. The Minister submitted that the applicant gave inconsistent evidence about what he told the Minister’s departmental officers.  His evidence was that he agreed that he would go back to Lebanon, then subsequently he gave evidence (after an objection to a question), that he could not remember what was said.  When subsequently pressed, the applicant said he would go back to Lebanon (see [31](c) of the Minister’s written submissions of 22 September 2017).

13. I agree with the applicant’s submission now that when the applicant’s various answers are considered in the context of the Minister’s department’s records of these interviews, it is reasonable to infer that the applicant’s change in evidence was a result of his lack of understanding, or memory, of what had occurred on the occasion of each interview.

14. In all therefore, what can be said from the matters discussed above, is that the applicant’s evidence, particularly when considered also with his wife’s evidence, is not reliable as to the matter of whether, and when, he knew of the Tribunal’s “adverse” decision.

15. On the matter of the Tribunal’s invitation to the applicant to attend a hearing, and the subsequent “waiver”, that is dealt with below.

16. For the remainder, I find the applicant’s evidence demonstrated a poor recollection of the relevant events. I do not make a finding that his evidence was “knowingly false” as invited by the Minister.  However, I do agree with the Minister, and find that important elements of the applicant’s evidence were, as the Minister described it, a “wishful reconstruction” ([29] of the Minister’s written submissions of 22 September 2017).

17. For his part, the applicant sought to impugn the credibility of Mr Issa’s evidence.  Before the Court, the applicant described the critical elements of Mr Issa’s evidence as being ([12] of the applicant’s written submissions of 25 August 2017):

    “1. The applicant’s case was too generalised to be successful. He had no information or instructions which could have been used as the basis of a submission to either the delegate or the RRT in support of his case.

    2. That the applicant signed the RRT hearing waiver because he did not want to attend.

    3. That the applicant was sent the RRT decision.

    4. That the applicant was informed of his rights to appeal to the court but elected to apply to the Minister instead…”

18. The crux of the applicant’s attack on Mr Issa’s evidence is explained as follows ([13] of the applicant’s written submissions of 25 August 2017):

    “There are 3 documents which comprise objective evidence which tells against the acceptance of Mr Issa’s evidence. They are:

    (a) the file note of 6 May 2013 –

    (b) the form 1008 and 956 accompanying the Ministerial submission of 26 June 2013; and

    (c) the content of the Ministerial submission of 26 June 2013.”

19. First, the applicant referred to a file note of 6 May 2013.  The file note is in the following terms (“AE1” at page 47):

    “File Note:

    Name of Client: [applicant]
    Subject: Refugee Review Tribunal application
    Date: 6 May 2013
    Duration: 45 minutes

2pm

Conference with client, requested a decision on the papers.

Signed authority to have decision made on papers before the Tribunal”

1. The applicant submitted that this is the only file note in the entirety of Mr Issa’s file relating to the applicant (see “AE1”).  The applicant’s submission was that this “has the wrong date and time”, and that Mr Issa’s evidence concerning this file note is “implausible” ([14] of the applicant’s written submissions of 25 August 2017).

2. The applicant sought to contrast this document with what appears at page 59 of “AE1” which he says is the document by which the right to the Tribunal hearing was purportedly waived (“the waiver document”).  That document is in the following terms:

   “Authority to have decision made on papers

   I, [applicant], authorise and direct my solicitor to request that a decision be made on the papers before the Tribunal.

   Signed

   [Signature]
   ……………..

   Date 16/5/13”

3. As set out above, in his written submissions, the applicant stated that the file note has the “wrong date and time” ([14] of the applicant’s written submissions of 25 August 2017).  That is, the file note which asserts it was made at 2pm, also states that the applicant attended at a conference with Mr Issa on 6 May 2013 for 45 minutes. The file note then asserts that at the conference, the applicant signed the waiver document.  This is in contrast to the waiver document that states on its face that it was signed on 16 May 2013.  It was then sent by facsimile to the Tribunal on that date.

4. I note that according to the facsimile transmission report at the top, and foot, of Court Book page 109, the Tribunal appears to have received the waiver document about one hour before it was sent (this may be due to some failure to readjust for daylight savings time or some other technical error).

5. In any event, to further support this proposition, the applicant pointed to the absence of any file note relating to the applicant in the version of Mr Issa’s file that the applicant’s wife annexed to her affidavit of 13 May 2016.  It is to be remembered that her evidence was that what was annexed to her affidavit of 13 May 2016 (“NA1”), was the bundle of documents that she and the applicant were given by Mr Gash in August 2014.  Her evidence was that Mr Gash told them that the bundle of documents was Mr Issa’s file relating to the applicant (see the applicant’s wife’s affidavit of 13 May 2016 at [4].

6. It is important to note a significant difference in the evidence between Mr Gash and that of the applicant and his wife.

7. As set out above, the applicant and his wife gave evidence that they did not know of the adverse Tribunal decision until August 2014, and certainly not the reasons for the decision.

8. Mr Gash’s evidence (he was cross examined on the statement dated 19 May 2016 and filed in Court) however, was that he had an interview with the applicant and his wife in April 2014. He stated that the applicant had a copy of his “migration file” that he had received from Mr Issa.  That file included an application for a protection visa, the delegate’s decision record, the Tribunal’s decision dated 16 May 2013, and a “negative” outcome to a Ministerial intervention request.

9. During cross-examination it was put to Mr Gash that his recollection of these events two years later was mistaken.  The focus here was on Mr Gash’s evidence of the “negative” Ministerial intervention request outcome, which it was put to him did not occur until May 2014, and therefore would not have been in the file he saw in April 2014.

10. Mr Gash was questioned at some length about his evidence that, as at April 2014, he had been given a copy of Mr Issa’s file relating to the applicant which contained a copy of the Tribunal decision.

11. Mr Gash was unable to confirm that what was on that file was a complete copy of the Tribunal’s decision.  However, there is no reason not to accept his evidence that there was, at least, the last page of that decision on the file which revealed that the Tribunal had made an adverse decision in regard to the applicant.

12. This is not sufficient to reject the applicant’s assertion that he did not know of the reasons for the Tribunal’s decision (including his not attending the Tribunal hearing), until August 2014.

13. However, it does call into question the applicant’s evidence, and that of his wife, that they did not know of the adverse Tribunal decision until they obtained a copy of the Tribunal’s decision from the Tribunal in August 2014.

14. In any event, the applicant asserted that Mr Issa’s file note was, to use his word, a “forgery”.  I understood this to be put in the sense of the file note being a “knowing falsification”.

15. The applicant’s submissions focused on the time and date of the file note, and the absence of a copy of it in “NA1” (that is, the bundle of documents the applicant’s wife says they were given by Mr Issa). To make good his claim of a “knowing falsification” of this document, the applicant directed attention to the relevant context.

16. The applicant’s submission was that Mr Issa “manufactured” the file note because he wanted to “corroborate his version of events” ([21] of the applicant’s written submissions of 25 August 2017).  The assertion was that he “guessed” the date of the conference with the applicant, with reference to the date of the Tribunal decision (that is, 16 May 2013).  The applicant asserted that Mr Issa “made the same mistake as he made in his evidence in chief – he forgot that the authority to have the decision made on the papers had been dated” ([21] of the applicant’s written submissions of 25 August 2017).

17. This may have been the case.  But equally it may not have been.  The applicant’s submission depends on accepting the applicant’s evidence that, in effect, he knew nothing, and to reject Mr Issa’s evidence that he had explained to the applicant what was going on in relation to his case.

18. The applicant’s argument was that it was implausible that Mr Issa would have seen him on both 6 May 2013 and 16 May 2013.  He referred to his evidence before the Court that he had never seen Mr Issa for “45 minutes” as referred to in the file note.

19. It is the case that the applicant also gave evidence that cast doubt on the extent of his memory, and capacity to remember details of what relevantly occurred.  For example, he gave evidence in his affidavit (of 2 March 2015 at [23]), that he had been shown the waiver document (at CB 109), but that he could not recall whether this was the document he had been asked to sign “on this occasion”.

20. A feature of the applicant’s affidavit evidence is that he does not say what date that “occasion” refers to.  While other events have appropriate date references, the reference to when he signed the waiver document does not.

21. The applicant’s affidavit evidence therefore is that the waiver document, with a date of 16 May 2013 on it, bears his signature. But that he cannot remember whether this was the document that Mr Issa asked him to sign “on this occasion” (whenever that may have been).

22. At best, this is the “occasion” when he says Mr Issa told him that he did not need to attend at the “court” (in context, the Tribunal hearing).

23. It is to be remembered that the relevance and importance of this is that the applicant’s submissions asserted that the file note (of 6 May 2013) is a “forgery”. This is a serious charge to bring against a third person, let alone a solicitor. Yet the applicant’s evidence was that he cannot remember when he saw Mr Issa.  He says that the signature on the waiver document is his signature, but does not remember whether this was the document he signed on this “occasion”.  He was unable to give a date as to when the discussion he says he had with Mr Issa about not attending the Tribunal hearing took place.

24. Nor did the applicant’s oral evidence before the Court provide a basis from which it could be reasonably inferred that the applicant’s recollection of relevant events was reliable (see above).

25. In short, it cannot be said from the applicant’s evidence that he did not attend at Mr Issa’s office on both 6 May 2013 and 16 May 2013.

26. Further, before the Court, the applicant’s oral evidence was that while he did not see Mr Issa for 45 minutes on 6 May 2013, he did see him for five minutes on that day.  The applicant’s evidence was that it only took five minutes because the purpose of his seeing Mr Issa was “just to sign” (T85.14 of 20 May 2016).

27. Importantly, the applicant’s oral evidence was, in response to a question from the Minster’s counsel, as follows (T85.16 to T85.20 of 20 May 2016):

    “MS FRANCOIS: And you told him you didn’t want to go to the hearing?

    THE INTERPRETER: I said to him, ‘Do I have to go?’ He – he said – he said, ‘No. Just sign here’. And I thought he either – he either was – he was either going by himself or he was going to fix it himself.”

28. Further (T85.22 to T85.25):

    “MS FRANCOIS: Because you didn’t really want to go to the hearing, did you?

    THE INTERPRETER: I wasn’t aware that I was required to go. I thought he would know better than me.”

29. Therefore, what can also be said on the applicant’s evidence is that he knew of the Tribunal hearing, but did not know that he was “required” to attend.

30. Therefore, on both the applicant’s affidavit and oral evidence, he knew of the invitation to the Tribunal hearing.

31. I do not accept the applicant’s other evidence that he did not know, and that Mr Issa did not “tell [him] anything” about what was going on in his case. The dispute between the applicant and Mr Issa now, is what Mr Issa told the applicant about his attendance at the Tribunal hearing (see further below).

32. In submissions, the applicant asserted that he did not know what he was signing on 16 May 2013. However, this submission must be considered in light of his evidence that he was not sure if the waiver document (at CB 109) was the document he signed on 16 May 2013. This is in contrast with his submissions before the Court that he did sign the waiver document on that date, albeit that he also says that he did not know what he was signing.

33. The applicant’s submissions also sought to rely on the fact that there is no copy of the waiver document in Arabic on Mr Issa’s file, or otherwise in evidence before the Court.

34. The submission was that Mr Issa knew that the applicant could not read or write English, if he “genuinely sought the applicant’s waiver [of the Tribunal hearing] then it should have been prepared in the Arabic language” ([23] of the applicant’s written submissions of 25 August 2017).

35. The Minister submitted that the applicant’s contention in this regard is “illogical” because the waiver document was drafted and signed for the purpose of giving it to the Tribunal.

36. Mr Issa gave evidence in cross-examination that all of his conversations with the applicant were in Arabic other than “one or two words in English”.  There was nothing in the applicant’s evidence to say that that was not the case. In his affidavit of 2 March 2015 ([at [7]) the applicant himself states, “[a]ll my communications with Sam Issa were verbal and in Arabic”.

37. In this circumstance therefore, it is difficult to see why the absence of an Arabic version of the waiver document from the applicant’s file reveals that Mr Issa did not “genuinely” seek the applicant’s waiver.  If the conversations between Mr Issa and the applicant were in Arabic, and no other document on the file was drafted in Arabic, it does not follow that the absence of an Arabic version of the waiver document reveals a lack of genuine intention to act appropriately on the part of Mr Issa.

38. It must be remembered that the applicant contends for the proposition that he did not see Mr Issa on both 6 May 2013 and 16 May 2013. [I note his evidence that it may have been for 5 minutes on “one occasion”.]  On balance, the state of his evidence, and the evidence on which he says he relies, is not such as to make out this contention.

39. It was Mr Issa’s evidence that he saw the applicant on both 6 May 2013 and 16 May 2013.  His evidence was that he saw the applicant on 6 May 2013 and he signed an “authority” to waive his right to a Tribunal hearing and that he took the document away with him.  Mr Issa told him to “[t]hink about it”.  He returned on 16 May 2013 and signed another version which was sent to the Tribunal.

40. Why the applicant signed a waiver document on 6 May 2013 and took it away with him instead of taking an unsigned document away to “think about it”, was not put to Mr Issa in cross-examination.  Nor was it put to Mr Issa in cross-examination why what was subsequently sent to the Tribunal, was not the document signed on 6 May 2013.  In any event, what remains is that Mr Issa’s evidence is that the applicant signed a waiver document on both 6 May 2013 and 16 May 2013.  In this light, the fact that there was no 6 May 2013 version of the document on Mr Issa’s file, would tend to support the proposition, as the Minister submits, that the applicant took it away with him, and when he returned to Mr Issa’s office on 16 May 2013, he signed another version of the waiver document.

41. While there are some difficulties with Mr Issa’s evidence, on balance, I accept Mr Issa’s evidence that he saw the applicant on both 6 May 2013 and 16 May 2013.  The applicant’s recollection of relevant events was not of such character so as to say it should be preferred to Mr Issa’s evidence in this regard.

42. It must be said that the “ultimate problem” with the applicant’s submission involves the key document, central to the applicant’s

    
    

    non-attendance at the Tribunal hearing, that is, the waiver document.

43. The applicant confirmed before the Court that the signature on the document was his signature.  His other evidence before the Court relating to his inability to recall relevant events, was that he could not recall whether he signed the waiver document on 16 May 2013. This says more about the applicant’s lack of memory, than whether or not the document was signed on 16 May 2013.

1. In any event, what remains is that a document waiving the applicant’s right to a Tribunal hearing contained the applicant’s signature, and was sent to the Tribunal.  This ultimately led to the Tribunal proceeding to make its decision on the review.

2. This still leaves the issue of whether the applicant “knew” what he was signing.  That issue is addressed below.  For immediate purposes, the Minister submitted that the existence of the file note of 6 May 2013 (see above at [101]), and its creation, does not advance the applicant’s case beyond that there exists a signed (by the applicant) waiver document itself.

3. While the contents of the file note may, to some extent, go to the issue of whether the applicant knew what he was signing, whether Mr Issa explained the contents of the waiver document to the applicant on 6 May 2013 or 16 May 2013, does not alter the fact that the applicant signed the waiver document.

4. The applicant asserted that he did not know the contents of many of the documents that he had signed in the presence of Mr Issa.  Mr Issa says that he explained relevant matters to the applicant.  The applicant’s reliance now on the file note, is put to attack Mr Issa’s credit.

5. In the circumstances set out above, I am unable to find that the applicant succeeds in this regard in relation to the file note.

6. The applicant also relied on another document, which he says he did not sign, to attack Mr Issa’s credit.  This document is before the Court at pages 37 to 46 of “AE1”.  The background to this is as follows.

7. On 26 June 2013 (after the date of the Tribunal decision), Mr Issa wrote to the Minister’s department (“DIAC Compliance Section”) enclosing a number of documents (see page 37 of “AE1”). These were one, an application for a bridging visa (“Form 1008”) at pages 38 to 42 of “AE1”. Two, a migration agent form (“Form 956”) at pages 43 to 46 of “AE1”. Three, a copy of a “Ministerial Submission” dated 26 June 2013 at pages 18 to 20 of “AE1” whereby Mr Issa, separately wrote to the then Minister seeking his intervention pursuant to s.417 of the Act.

8. Mr Issa’s evidence was that following the Tribunal decision, he informed the applicant of his options of either seeking Ministerial intervention or judicial review.

9. The applicant submitted that he gave evidence that denied that Mr Issa told him he was making a Ministerial request on his behalf (see further below).

10. The applicant asserted that the he did not sign the two forms (“Form 1008” question 22 at page 42 and “Form 956” question 24 at page 45 of “AE1”), even though a signature appears at the place in both forms reserved for an applicant’s signature.

11. The applicant’s argument was that another person, purporting to be the applicant, signed the document.  That “fact”, and the “fact” that they accompanied the Ministerial intervention request, is said to be “powerful evidence” that the applicant was not informed of the Ministerial intervention request.

12. Some care needs to be taken in understanding the purpose of the lodging of these documents with the Minister’s department.

13. The Ministerial intervention letter was sent to the then Minister by letter dated 26 June 2013.  It is addressed to the Minister’s Parliament House office, and the notation on the letter is that it was sent by facsimile (see page 18 of “AE1”).

14. The letter also refers to an enclosure (at page 20 of “AE1”).  This was said to be “Form 956” (which is at pages 43 to 45 of “AE1”). Given the date of the Ministerial intervention letter (26 June 2013), and the date on the “Form 956” (see page 45 of “AE1”) it is reasonable to assume that the “Form 956” was the form that was enclosed with it.

15. Separately, Mr Issa also sent his letter of 26 June 2013 on which the applicant now relies, as appears on its face, to the “DIAC Compliance Section” (see [151] above). On the evidence, this occurred at about the same time as the sending of the Ministerial intervention letter (see [157] above).

16. The issue then becomes whether the signatures on the forms are the applicant’s signatures, and if not, does this, in the circumstances, impugn Mr Issa’s credit.

17. The applicant’s submission is that he did not know, and was not told by Mr Issa, that a Ministerial intervention request was to be made.  That is, Mr Issa submitted the Ministerial intervention request without the applicant’s knowledge.

18. To support, or “corroborate” his argument, the applicant asserted that the two documents did not bear his signature.

19. One argument in support of this contention is drawn from a comparison said to be available between page 42 and page 45 of “AE1”.  A note of explanation is necessary.  “AE1” is a bundle of documents that the Minister obtained by way of subpoena from Mr Issa that has been copied (double- sided) and page numbers added by the applicant for ease of reference.

20. As mentioned above, also before the Court is a bundle of documents which are annexed to the applicant’s wife’s affidavit of 13 May 2016 at “NA1”. This bundle of documents was said to be to be given to her and the applicant in August 2014 by Mr Gash, who she says told them that this was Mr Issa’s file relevant to the applicant. 

21. To make good his argument, the applicant then directed attention to the entirety of these forms as follows.

22. One, the applicant submitted there are “two broad lines” across both pages 42 and 45 of “AE1”, which is not evident at pages 38 to 41 and 43 to 44 of “AE1”.  That is, the remainder of the two forms.

23. These “two broad lines” also appear on other pages in “Mr Issa’s file”.  For example, at pages 35 to 36, 46, 57, 60, 99 and 161 to 193 of “AE1”.

24. The applicant submitted that these lines have been “printed by [Mr Issa’s] facsimile machine” ([27] of the applicant’s written submissions of 25 August 2017).  No direct evidence has been proffered for this assertion.  The applicant’s submission relies on an inference being drawn from what appears to be facsimile transmission notations at the top of these pages (other than pages 161 to 193 of “AE1”) ([27] of the applicant’s written submissions of 25 August 2017).

25. The applicant also submitted that a further inference should be drawn that pages 161 to 193 of “AE1” were copies of documents “posted” to the Minister’s department. He submitted that a copy of them was made using the facsimile machine before it was sent.

26. This latter submission presupposes, without any evidence, that Mr Issa’s office at the relevant time only had one facsimile/photocopy machine, or if he had other facsimile/photocopy, or combined machines, or even separate facsimile and photocopiers, the same machine was used as for the other documents.  In cross-examination, Mr Issa gave evidence that he had a photocopier.  He was not asked whether this photocopier was part of a facsimile/photocopier machine

27. There are far too many suppositions without evidence to accept the submissions in relation to pages 161 to 193 of “AE1”.  It could equally be that these two broad lines on the copies were made by a photocopy machine.

28. It is to be remembered that the documents contained in “AE1” (and for that matter the Minister’s “aide memoir” to “AE1”) are copies, not original documents.  The state of the evidence is not such that it can be said that the “two broad lines” as they appear on some documents in “AE1” were made by Mr Issa’s facsimile machine.

29. In this regard I note, for example, that the documents reproduced at Court Book pages 105 to 109 and dated April 2013 and May 2013, were all sent to and received by the Tribunal, by facsimile, from Mr Issa’s firm.  These documents do not have the “two broad lines” across them.

30. Importantly, the documents at Court Book pages 108 to 109 are the waiver documents sent to the Tribunal and Mr Issa’s covering letter.

31. It may be that the difference is because the document sent to the Tribunal (as in the Court Book) are the copies of documents actually sent by facsimile, while the documents in “AE1” (copies obtained from Mr Issa’s file), are, as is made clear, documents produced after transmission. I note in this regard the “[c]ommunication [r]esult [r]eport”  appears at the top of pages 35, 36, 46 and 99 (of “AE1”).  However again, this is supposition.

32. Two, the applicant referred to the transmission data at the foot of both pages 42 and 45 of “AE1”.  Both pages bear the words “Maha Ghali Pharmacy”, and a telephone number with a “613” prefix.  I accept that the “3” means that the number refers to a telephone service in Victoria.

33. It is not necessary to go into great detail as to the applicant’s submissions to support the proposition that the signature on these documents is not his signature.  That is because in evidence, Mr Issa agreed that the signatures on these two pages were not the same as the applicant’s signature found elsewhere in the evidence before the Court.  Therefore I find the applicant did not sign pages 42 and 45 in the bundle of documents described before the Court as “AE1”.

34. Mr Issa’s evidence was that these two pages, as the facsimile imprint at the foot of the page shows, were sent by facsimile to his office from the pharmacy in Victoria.  His evidence was that at that time, in his office, the practice was to communicate by facsimile. Further, there were “many faxes” coming into his office, and there had been times “where faxes got mixed up”.  Implicit in his evidence was that this must have been one of those times.

35. The applicant submitted that Mr Issa’s explanation of a “mix up” is unconvincing.  On its face there is some strength in the applicant’s submission.

36. The two pages from each form (“Form 1008” and “Form 956”) that were not the pages relevant to the applicant, were both, coincidently, the pages on each form that required an applicant’s signature.

37. The applicant’s explanation of events, given in submissions, is as follows.  The signature pages of both forms were “removed”.  The unsigned signature pages of both forms were sent to the pharmacy in Victoria by facsimile.  The transmission report to that facsimile number was placed on the applicant’s file.  The two pages were then sent by facsimile back to Mr Issa’s office.  The forms, and the submissions to the Minister, were then sent by facsimile to the department.  The forms, Ministerial submission and transmission report, were then placed on the applicant’s file in Mr Issa’s office.

38. The attack on Mr Issa’s credit arises from the proposition that he sent the forms and the submissions, to the Minister. These forms were signed by “someone else”.

39. As set out above, the bridging visa (“BVE”) application (“Form 1008”) was not sent in support of the Ministerial intervention request sent to the Minister’s Parliament House office (see [151] and [157] – [158]).  It was an application for a BVE. Whether it contained the applicant’s signature, or someone else’s signature, cannot be said to be adverse to the applicant’s case (before the Minister’s department), as the applicant clearly needed a BVE to remain in Australia while his Ministerial intervention request was being considered.

40. The applicant’s evidence consistently before the Court was that he knew nothing of the detail of what was happening in his visa application process.  In effect, he left everything to Mr Issa.

41. If that is the case, what was left unanswered by the applicant’s “explanation” (in submissions) of the relevant events set out above, is why Mr Issa would go to such complicated, and extreme, lengths to obtain from someone else, in Victoria, the applicant’s purported signature, and in doing so, add the complication of sending the blank pages to a pharmacy in Victoria by facsimile, thus creating the very “trail” on which the applicant seeks to base his argument now.

42. If Mr Issa was looking to procure a forged signature on the forms, it would far more easily, and effectively, be done in his office.  The “convoluted” nature of the applicant’s explanation leaves Mr Issa’s explanation of a “mix up” as a simpler, and preferred explanation of what occurred, particularly in light of the applicant’s other inconsistent evidence, that he had little idea of what was happening.

43. Further, a part of the applicant’s explanation of the “scheme” was that page 46 of “AE1” is a page from the “Form 1008” sent to the pharmacy in Victoria.  The form contains Mr Issa’s details under the heading of “Assistance with this form”.

44. While the applicant’s submissions asserted that the same was done with the signature page in “Form 956”, no page comparable to page 46 (of “AE1”) appears in “NA1”. Nor did the applicant point to any such page, other than making the submission that such a page had been sent.

45. There is nothing on the face of page 46 of “AE1”, or elsewhere in “AE1”, to say that this page related to the applicant’s case.  The only basis for the assertion that it did, is that it was on the applicant’s file that was obtained under subpoena from Mr Issa.  Nor does it appear in annexure  NA1” to the affidavit of the applicant’s wife of 13 May 2016.

46. What is left therefore, is that the “Form 1008” is an application for a BVE.  It was not sent to the Minister with the Ministerial intervention request.  A copy of, but in context, not the original, Ministerial intervention request, did accompany the “Form 1008” sent to the “DIAC Compliance Section” in the Minister’s department.

47. The applicant submitted that Mr Issa obtained a forged signature on the BVE application form to “hide” the fact that he had not told the applicant of the unsuccessful Tribunal outcome.

48. It was the applicant’s evidence before the Court that he did what Mr Issa told him to do.  This included that he never refused to sign any document Mr Issa told him to sign.  While this plainly, of itself, does not establish that Mr Issa told him of the Ministerial intervention request, it does provide a strong argument to counter the applicant’s submission that Mr Issa obtained a “forged” signature.

49. The applicant has not satisfactorily explained why Mr Issa would need to obtain a forged signature, if his evidence otherwise was that he left everything to Mr Issa, and did not refuse to sign anything that Mr Issa gave him to sign. Further, that he did not know what was written in the documents that he did sign. In all therefore, this does not impugn Mr Issa’s credit.

50. Three, the applicant also sought to impugn Mr Issa’s credit by referring to the contents of the Ministerial submissions made on 26 June 2013 by Mr Issa (see page 18 to 20, and in particular page 20 of “AE1”).

51. The applicant submitted that [11] to [15] of the Ministerial submission (at page 20 of “AE1”) contain material that was supportive of the applicant’s case for protection, but is different to the “material” in the applicant’s protection visa application (see [42] of the applicant’s written submissions of 25 August 2017).

52. In essence, the applicant’s argument was that Mr Issa knew, as at 26 June 2013, of information that could have been put to the Tribunal earlier, and was not.

53. The applicant then asked the Court to draw an inference from Mr Issa’s evidence to the Court that in 2013 (that is, while the matter was before the delegate and the Tribunal), Mr Issa maintained an interest in, and had knowledge of, events in Lebanon.

54. The inference is that while the matter was before the Tribunal, Mr Issa could have raised this “information” (about Lebanon) with the Tribunal.  Yet he made no submissions to the Tribunal in this regard (see [9] above).

55. Mr Issa was cross-examined on this matter.  There was nothing in Mr Issa’s evidence on which it can be said he knew of this information at an earlier time.

56. Even if there was, this would still not bring Mr Issa’s credit into question, and importantly, would not establish that he acted fraudulently.

57. It is to be remembered that the tasks facing the Tribunal and the Minister (pursuant to the Ministerial intervention request) were different. The Tribunal is required to determine whether it can be satisfied, on what is put before it, that the applicant satisfies either of the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Minister is not bound by this section of the Act. The Minister can substitute any favourable decision if he considers it appropriate to do so.

58. The applicant’s assertion was that the fact that Mr Issa did not make submissions to the Tribunal on the basis of this information that supported the applicant’s case was because Mr Issa ([49] of the applicant’s written submissions of 25 August 2017):

    “…simply did not want to do any work for the money he was paid and that was why he had the applicant sign the request to waive the hearing. Further a reason why Mr Issa did not want the applicant to attend the Tribunal hearing was so that the applicant did not learn that Mr Issa had done nothing to support his case…”

59. This is speculation on the applicant’s part, and as speculation without any evidentiary basis, it cannot discredit Mr Issa’s evidence, nor establish fraud on his part.

60. It is equally open to speculate, although not necessary other than to demonstrate the paucity of the applicant’s approach, that given the difference in focus as between the Tribunal and the Minister (in the context of s.417 of the Act), the general country information referred to by Mr Issa in his Ministerial submission may well be of assistance in that exercise, but may not have been of assistance before the Tribunal.

61. We cannot know the answer to that question because that information was not put to the Tribunal.  But that does not establish fraud on the part of Mr Issa.

62. As set out above, repeatedly, the dispute between the applicant and Mr Issa must focus on whether fraud was involved in the applicant’s signing of the waiver document.

63. The detailed matters raised by the applicant in relation to country information, do not, for the reasons set out above, discredit Mr Issa’s evidence.

64. What is left is the applicant’s evidence that he knew little of what was happening in connection to his case, both before the delegate and the Tribunal.  In relation to the waiver document, his evidence was that he did not know, and was not told by Mr Issa, that he could attend at the Tribunal hearing.

65. Mr Issa’s evidence was that the applicant told him that he did not want to go to the Tribunal hearing, or for that matter, to the interview with the delegate.  Mr Issa’s evidence was that that was the reason he obtained the waiver document (for the Tribunal hearing), and, for that matter, the “waiver” for the delegate’s interview.

66. The view that I take of the evidence before the Court is as follows.  In October 2012, the applicant consulted Mr Issa about remaining in Australia, given what he said was the “worsening” situation in Lebanon due to the war in Syria.  Mr Issa spoke Arabic and generally conversed in that language with the applicant, who was a native Arabic speaker.

67. Mr Issa assisted the applicant in making an application for a protection visa in October 2012.  During the course of the processing of that visa application, and the subsequent application for review to the Tribunal, the applicant met with Mr Issa on a number of occasions.

68. The applicant’s argument in submissions was essentially that Mr Issa “managed” both processes without telling the applicant about the relevant issues or events.  The argument was that the applicant would attend meetings with Mr Issa, where he would sign documents drafted in English that Mr Issa gave him, and Mr Issa did not explain, or “read”, these documents to him.

69. Mr Issa’s evidence was that he engaged with the applicant in a meaningful way at these meetings.  His evidence was that the claims in the protection visa application were drafted on instructions from the applicant, and following discussion with the applicant about the basis of his claims.

70. Further, Mr Issa’s evidence was that he discussed with the applicant his view that his claims had little prospect of success, in particular due to their “generalised” nature, but that nonetheless, the applicant gave instructions to proceed.

71. While it is plainly not for the Court, on judicial review, to assess the merits of the applicant’s protection visa claims, what can be relevantly noted, is as follows.

1. Before the Court, the applicant was cross-examined about what he told Mr Issa about his problems in Lebanon.  At best, the applicant’s evidence was that he told Mr Issa about “a lot of things happening”.  However, none of them appeared to involve “anyone” who was “trying to harm” him.

2. Ultimately, the applicant agreed that his claims for protection in Australia were that there was generally “war and fighting in Lebanon”.

3. The applicant’s own evidence supported Mr Issa’s evidence that the applicant’s claims had poor prospects of success.  In that circumstance, it was open to Mr Issa to take that view.

4. Mr Issa’s subsequent submissions to the Minister in the request for Ministerial intervention, as set out above, were relied on by the applicant to argue that Mr Issa could have, but did not, raise such matters before the Tribunal. To the extent that the applicant sought to put country information before the Court, there was nothing in that information which was “general” in nature, to say that there was information personal to the applicant’s circumstances that Mr Issa could have given to the Minister’s department or the Tribunal, and failed to do so.

5. Before the Court, the Minister’s submissions were that Mr Issa’s submissions, in effect, did no more than set out general conditions in Lebanon.  I agree with the Minister in this regard.  Ultimately, there was little, if anything, in the applicant’s claims to place him personally, or as the member of a group, at risk of harm in Lebanon because of what he described as the “problems”.

6. Contrary to the applicant’s argument, Mr Issa gave evidence that he recalled discussing the applicant’s attendance at the interview with the delegate with the applicant.  Mr Issa’s evidence was that the applicant was “adamant” that he did not want to attend.  His evidence was that the applicant “agreed” with him that his case was “weak”, and asked him to “fix it” so that he did not have to attend.

7. Mr Issa also gave evidence that he wrote to the applicant to advise him of the unsuccessful outcome of his protection visa application.  A copy of that letter is at page 123 of “AE1”.

8. It was Mr Issa’s evidence that he could not specifically recall any conversation with the applicant in relation to the drafting of the application for review to the Tribunal.  He confirmed that the signature that appears on the covering letter to the Tribunal from him, which enclosed the application, was signed on his behalf by one of his assistants.

9. Mr Issa’s evidence was that he recalled a meeting after he had “initiated the [Tribunal] hearing process”.  In context, this was a reference to his having sent a completed “Response to Hearing Invitation” form to the Tribunal which indicated that the applicant, and Mr Issa, would attend at the Tribunal hearing (CB 105 to CB 107).

10. Mr Issa’s evidence was also that at that meeting, the applicant informed him that he did not want to attend the Tribunal hearing.  Mr Issa’s evidence was that he advised the applicant that it was in his interest to attend.  Nevertheless, the applicant’s instructions were that he would not attend the Tribunal hearing.

11. The question of whose version of relevant events is to be preferred is to be resolved with reference to the following (and drawing on the findings above).  In his affidavit evidence, the applicant lacked temporal focus and detail.  His oral evidence before the Court was punctuated by instances of his inability to recall what had occurred at the various meetings with Mr Issa.

12. On the matter of his attendance (or otherwise) at the Tribunal hearing, Mr Issa’s evidence was clear (as set out above).

13. The applicant’s approach in this case, was to seek to discredit Mr Issa as a witness. As set out above, this attack was unsuccessful.

14. It is plausible, and I accept, that the applicant had little knowledge of the process of applying for a protection visa and the application for review to the Tribunal.  I accept that he relied on Mr Issa in this regard.

15. However, this is some distance away from establishing that Mr Issa did not tell him about the prospects of success, what was happening with his case before the delegate, and the Tribunal, and in particular, and relevantly, about the invitation to the Tribunal hearing.

16. Given that the applicant’s attack on Mr Issa’s credit generally fails for the reasons set out above, what is left in relation to the issue of attendance at the Tribunal hearing is Mr Issa’s evidence and that of the applicant.  The applicant’s evidence, with its difficulties as to recall and memory does not outweigh Mr Issa’s evidence, in the absence of any satisfactory basis not to believe Mr Issa, on the matter of the Tribunal hearing invitation.

17. It is important to note that this is not a case where the applicant now says he was not told of the opportunity to go to the Tribunal hearing.  The applicant’s evidence was that Mr Issa told him “[y]ou have a Court [in context, a Tribunal] hearing” (see the applicant’s affidavit of 2 March 2015 at [21] – [22]).

18. What the applicant says he was not told, contrary to Mr Issa’s evidence, was that it was in his interest to attend the Tribunal hearing.  The applicant’s assertion of fraudulent conduct rests on his evidence that Mr Issa told him he did not have to go, and that he would go to the Tribunal on his behalf.

19. I accept that the applicant is a person who was not conversant with migration procedures in Australia and faced linguistic barriers.  It is reasonable to assume that he consulted Mr Issa because of his belief that Mr Issa could help him to stay in Australia.

20. However there is no reason, as set out above, to reject Mr Issa’s evidence in this regard.  While the applicant, understandably, may not have understood all of the detail involved in his protection visa application, and his subsequent application for review to the Tribunal, he has not established, on balance, and on the evidence before the Court, that his version of relevant events relating to the Tribunal hearing invitation should be preferred to Mr Issa’s.

21. In submissions, the applicant sought to provide an explanation for what he said was Mr Issa’s motivation in telling him not to go to the Tribunal hearing.  That is, motivation to explain, or cause, Mr Issa’s conduct.

22. That is, that Mr Issa had submitted an application for the protection visa, made no submissions to the delegate, did not tell the applicant of the invitation to the interview with the delegate, then made no submissions to the Tribunal.  In short, Mr Issa was motivated by doing less work for the money that the applicant had paid him. In these circumstances, Mr Issa told the applicant not to go to the Tribunal hearing so that the applicant would not find out how little he had done for the money he had paid Mr Issa.

23. There are a number of difficulties with the applicant ascribing this motive to Mr Issa.

24. One, Mr Issa’s evidence was that he would have earned more money by attending the Tribunal hearing with the applicant.  The “Response to Hearing Invitation” form, which Mr Issa sent to the Tribunal, and in which it is indicated that Mr Issa intended to come to the hearing with the applicant, provides a basis to support the proposition that Mr Issa was willing to go to the Tribunal hearing with the applicant.  The applicant did not satisfactorily address that evidence before the Court.

25. Two, Mr Issa also gave evidence that he told the applicant the “maximum charge” for assisting him with his matter was $5000.  The Minister submitted that the “objective” evidence before the Court reveals that the applicant had paid only $3000.

26. The applicant submitted that if it were true that Mr Issa told the applicant that he would attend the Tribunal hearing for a further $2000, then this suggests that he would not do any further work for the applicant, without further payment.  Yet, he made the Ministerial intervention submissions on the applicant’s behalf.

27. How the applicant’s submission in this regard assists him in explaining his view of Mr Issa’s motivation, was not satisfactorily explained.  There is no dispute from the applicant that Mr Issa told him about the $5000 maximum charge.  There is no dispute that the applicant paid Mr Issa $3000.  In the circumstances, Mr Issa’s evidence that he could have asked for a further $2000 if the applicant had gone to the Tribunal hearing (and he went with him), is plausible.

28. Three, the applicant’s argument presupposes that there was “further” work for Mr Issa to do.  I agree with the applicant that his application for the protection visa was a “barebones” application ([53] of the applicant’s written submissions of 25 August 2017).  But on the evidence before the Court, including the applicant’s own evidence, it is reflective of, and comprehensive of, the applicant’s claims for protection, as referred to above.

29. In cross-examination the applicant described his “story” as a refugee, and what he told Mr Issa, on the first occasion he met him, as being “I have problems in Lebanon.  I can’t go back”.

30. He was asked specifically as to what “exactly” he told Mr Issa and what his “problems” were (see the transcript of the hearing on 27 February 2017 at T12.28). The applicant’s answer was “there was a lot of problems in Lebanon.  There was war, fighting”.  When further pressed in cross-examination as to why he would be targeted for these problems and what he told Mr Issa, the applicant replied, “there’s a lot of things happening, like even seen stories about Syria, about ISIS and stuff like that”.

31. The applicant was also asked if anyone was trying to harm him in Lebanon and whether he told this to Mr Issa.  His answer was “no”, however, “there was problems there”.

32. The applicant was given every opportunity to expand on what he told Mr Issa about his claims to fear harm in Lebanon. For example, I note the following exchange (see the transcript of the hearing on 27 February 2017 at T9.13 to T13.17 and see also [14] of the Minister’s written submissions of 22 September 2017):

    “MS FRANCOIS: So did you tell him that because of anything you had said or done, people were trying to harm you?

    THE INTERPRETER: No. The discussion was that there was problems there.

    MS FRANCOIS: So is your claim for protection in Australia that there is just war and fighting generally in Lebanon?

    THE INTERPRETER: Yes, war and problems.”

33. It must be said, to apply the applicant’s own phrase from his written submissions, that is as “barebones” as it gets.

34. In the circumstances, it is difficult to see what “extra work” Mr Issa could have done.  To put it bluntly, Mr Issa did not make submissions to the delegate, or the Tribunal, because it appears that there was nothing of substance to say.  The applicant’s claim that Mr Issa was motivated to hide this fact that he had done no extra work is not made out.

35. Four, the applicant submitted that Mr Issa was certainly familiar with the “ordinary course” of events before the delegate and the Tribunal.  He would have known that both would have “inevitably” asked why no “supporting country information or submissions” had been lodged (page 7 of the applicant’s written submissions of 5 October 2017).

36. There are a number of suppositions here.  But even if the delegate (earlier at any interview), or relevantly, the Tribunal, had raised this matter at the Tribunal hearing, based on the applicant’s supposition of the “ordinary course”, Mr Issa would have known that he could have asked the Tribunal, as often happens (as seen from many migration cases before this Court), and most likely been given, the opportunity to make post-hearing written submissions.  In this light, it is difficult to see how the applicant’s “theory” of Mr Issa’s motivation can be supported.

37. Five, the applicant also submitted that Mr Issa was motivated to keep the applicant from the Tribunal hearing (and for that matter the interview before the delegate), because the Tribunal (or the delegate) would discover that Mr Issa had given advice to his client (the applicant), to make up false claims for protection, and further, that he had done this for other clients.

38. Annexed to the applicant’s affidavit (of 21 December 2016) is a document which he says his counsel asked him to prepare so as to explain “the history of [his] case” (“the applicant’s statement”) (see the applicant’s affidavit of 21 December 2016 at [4] – [5]).

39. Amongst other things, the applicant’s statement says that after arriving in Australia in September 2012 the applicant:

    “… went to see Sam Issa, he gave me a couple of options at the time,

    1. Change my religion.

    2. Pretend to be gay (homosexual)

    He said if I were to agree to either option 100% I would become an Australian citizen because he has done that for many others and they have become citizens of Australia.”

    I refused those options as they were religiously and morally wrong and illegal, I didn’t want to lie or cheat the system as I felt I had a genuine case.”

40. This was put to Mr Issa in cross-examination. He emphatically denied it   (stating, “[t]hat’s laughable”).

41. The Minister’s submissions raised the following in reply.

42. Mr Issa prepared the Ministerial intervention submission in June 2013 which required the applicant to be interviewed by departmental officers (in relation to the BVE) every month.  The Minister submitted that Mr Issa would have known, in preparing the Ministerial submissions, and the application for the BVE, that this would have provided the applicant with the opportunity during these interviews to have told the officers that Mr Issa had told him to, in the applicant’s words, “lie and cheat the system”.

43. The applicant’s submissions were that the applicant’s attendance at the Minister’s department for these interviews would have been for the purpose of seeking to justify his continuing presence in Australia, not to enquire about Mr Issa’s conduct.

44. It is difficult to see how this would have involved an “enquiry” by the applicant about Mr Issa’s conduct.  The applicant’s statement makes clear that when he first saw Mr Issa (in October 2012), he knew the “options” given to him by Mr Issa were “morally wrong and illegal”.

45. If that was the case, the applicant has not satisfactorily explained why he then instructed Mr Issa to lodge a protection visa application for him and paid him money to do so.  What is left, is that on the applicant’s own evidence, he was content to entrust his dealings with the Minister’s department to someone giving him advice about matters that were “morally wrong and illegal”.

46. However, as is clear from the Minister’s department’s file notes annexed to Mr Pinder’s affidavit, Mr Issa’s conduct was generally raised in the interviews.  For example, at page 7 of annexure “JDP01” to Mr Pinder’s affidavit, the applicant’s wife is reported as saying “it is unfair that [the applicant] has to suffer when he was not aware of this and it was his Migration Agent’s doing” (with reference to the Ministerial intervention being lodged after the cessation of his BVE).  This file note is dated 3 July 2013.

47. In another file note dated 18 July 2013, the applicant, with his now wife present, raised concerns about his “migration agent” (in context, Mr Issa).  In essence, these concerns were that he did not receive notification of the Tribunal decision, but that his migration agent had received the letter.  The Minister’s departmental officer records (see page 9 of annexure “JDP01” to Mr Pinder’s affidavit of 24 February 2017):

    “…It was explained to the client that it is his responsibility to be completely aware and informed of his immigration matters as it is his immigration record and life, not his Migration Agent’s. [The applicant’s wife] then stated that she had called the Migration Agent while they were waiting and was ‘verbally abused’ by him so they are currently not very happy with their Agent. She asked if there was anywhere she can report him to and I told her I will provide her with information on OMARA…”

48. The applicant attended at the Minister’s departmental office on a number of subsequent occasions. Despite his unhappiness with Mr Issa, and even the reference to the OMARA, there is nothing in any of the file notes to say that the applicant, despite opportunity, told the Minister’s departmental officers that Mr Issa had proposed “morally wrong and illegal” options to him in October 2012.

49. The Minister also submitted that the applicant’s allegation in this regard was made “late” in the proceedings (21 December 2016). That is, after the Minister’s submission that there was a lack of motivation for Mr Issa to have told the applicant not to go to the Tribunal hearing so as to hide his inactivity. 

50. The applicant submitted that while the applicant’s affidavit (which attaches the applicant’s statement) was made on 21 December 2016, the applicant’s evidence is that he drafted the “statement” after speaking to his counsel in February 2015 (see the applicant’s affidavit of 21 December 2016 at [4] – [5]).

51. That may be the case, and the applicant was not challenged on this evidence.  However, it still leaves open the question that if he drafted this “statement” (with his wife’s assistance) in February 2015, why he waited until after the Minister had made the relevant submission as to Mr Issa’s motivation, to bring it before the Court.

52. What the applicant has not satisfactorily explained is the following.  His “statement” makes clear that he (as at October 2012), believed that the advice given and options proposed by Mr Issa were “religiously and morally wrong”, and that he did not “want to lie or cheat the system”.  Yet, he was prepared to leave his affairs in the hands of someone who, plainly, had offended his religious and moral sensibilities, and who, on the applicant’s statement, was prepared to lie and cheat.

53. This says as much about the applicant as what he sought to attribute to Mr Issa.

54. Even when the Minister’s departmental officer told the applicant and his wife of the avenue to “report” Mr Issa, on 18 July 2013 for what they claimed was their unhappiness with him (see page 9 of annexure “JDP01” to Mr Pinder’s affidavit of 24 February 2017), there is no evidence to show that they told the immigration officers of Mr Issa’s proposal to “cheat” and “lie”, let alone that they made that specific complaint to the migration agents supervisory body (OMARA).

55. It is trite to say that the Court can only proceed on the evidence before it.  There may be a number of alternative theories that can be developed in the abstract as to what may, or may not, have occurred.

56. However, on the evidence before the Court, and the state of the evidence as explained above, it was reasonable for Mr Issa to view the applicant’s prospects of obtaining a protection visa as poor.  On balance, it is not reasonable to reject Mr Issa’s evidence that he told the applicant of the opportunity to go to the Tribunal hearing, and his evidence that he acted on the applicant’s instructions that he did not want to go.

57. The applicant’s allegation that the Tribunal decision was “stultified”, or vitiated, by the fraud and conduct of Mr Issa is not made out.  Ground one does not succeed.

58. Ground two to the further amended application asserts that Mr Issa failed to follow the requirements of the Migration Agents Code of Conduct (“the Code of Conduct”) in respect of cl.2.8(b) and cl.2.19. The ground asserts that these provisions are made “mandatory” by s.314(2) of the Act, and as such, Mr Issa’s “failure” to follow the requirements in these clauses “tainted” the Tribunal’s decision with jurisdictional error.

59. Section 314 of the Act is in the following terms:

    “314 Code of Conduct for migration agents

    (1) The regulations may prescribe a Code of Conduct for migration agents.

    (2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.”

60. Clauses 2.8(b) and 2.19 of the Code of Conduct were, at the relevant time, in the following terms (see Schedule 2 to the Migration Agents Regulations 1998 (Cth)):

    “Migration Agents Regulations – Schedule 2

    Code of Conduct

    …

    2.8 A registered migration agent must:

    …

    (b) act in accordance with the client’s instructions …

    …

    2.19 Subject to a client’s instructions, a registered migration agent has a duty to provide sufficient relevant information to the Department or a review authority to allow a full assessment of all the facts against the relevant criteria. For example, a registered migration agent must avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.”

1. The particulars to the ground assert that the “agent” did not follow the applicant’s instructions to attend the Tribunal hearing, and did not ensure that sufficient relevant information was before the Minister’s department or the Tribunal, to “allow a full assessment of the facts against the relevant criteria”.

2. The applicant’s submissions made clear that this ground is pressed even if the Court were to find that the “requisite fraud” on the part of Mr Issa is not made out ([96] of the applicant’s written submissions of 25 August 2017).

3. Two preliminary points must be made.  One, the applicant’s submissions proceed on the assumption that Mr Issa was a registered migration agent at the relevant time.  The Tribunal hearing was scheduled for 29 May 2013.  I note that Mr Issa gave evidence that he been a registered migration agent from 1994 to 2014.  Mr Issa therefore was a registered migration agent at the relevant time.

4. Two, the particulars to the ground, and the applicant’s submissions, made reference to the “migration agent” not following the applicant’s instructions in relation to the delegate.  That is, that Mr Issa did not put sufficient information before the delegate, such as to allow a full assessment of the claims.

5. The relevant question before the Court is whether the Tribunal’s decision, not the delegate’s decision, is affected by jurisdictional error. Further, this Court has no jurisdiction to review the delegate’s decision given that the delegate’s decision was reviewable, and was in fact reviewed, by the Tribunal (s.476(2) of the Act).

6. The applicant’s submissions did not satisfactorily explain how the alleged failure by Mr Issa to follow the Code of Conduct in relation to the delegate’s decision, reveals jurisdictional error on the part of the Tribunal.  For current purposes therefore, I have focused on the applicant’s ground as it relates to the Tribunal’s decision.

7. The applicant’s submissions sought to impugn Mr Issa’s claimed conduct in two ways.

8. One, that Mr Issa did not provide submissions to the Tribunal.  I understood this to be an allegation of a breach of cl.2.19 of the Code of Conduct.  That is, Mr Issa breached his duty to provide sufficient relevant information to the Tribunal to allow a full assessment of the facts by the Tribunal, as against the relevant criteria for the protection visa.

9. Two, that Mr Issa told the applicant he would be representing him at the Tribunal hearing, but then had the applicant sign the waiver document. I understood this to be an allegation of a breach of his duty to act in accordance with his client’s instructions (cl.2.8(b) of the Code of Conduct).

10. The applicant sought to rely on Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226 (at [28]), to submit that breaches of imperative duties will invalidate the Tribunal’s decision. He also sought to draw on reasoning in SZFDE to argue that actions of parties (such as a migration agent) can frustrate the ability of the Tribunal to lawfully complete its statutory task to review the delegate’s decision.

11. The applicant’s ground fails at a factual level in light of the evidence before the Court, as set out above.

12. In relation to the matter of the failure to make submissions, there is no dispute that Mr Issa did not make submissions to the Tribunal (or for that matter, the delegate).

13. The applicant relied on those paragraphs (see above at [194] – [203]) contained in submissions drafted by Mr Issa and sent to the Minister in support of the Ministerial intervention request (pages 18 to 20 of “AE1”), to argue that those submissions could, and should, have been made to the Tribunal (and to the delegate).

14. The difficulty for the applicant is that he has not satisfactorily explained, with actual reference to all of cl.2.19 of the Code of Conduct, how Mr Issa, in not making these submissions, or indeed any other submissions to the Tribunal, in the circumstances of this case, constituted a breach of that clause.

15. The duty set out at cl.2.19 of the Code of Conduct is to provide sufficient relevant information, to the Tribunal, “to allow a full assessment of all the facts against the relevant criteria”.

16. There is nothing in this that indicates the failure to make submissions, of itself, is a breach of the requisite duty.  The duty is directed to the provision of sufficient relevant information, to enable a full assessment of the applicant’s case. The applicant has not explained before the Court how the paragraphs in the submissions to the Minister (see above at [195]) would have achieved that purpose.

17. As set out above, the Minister submitted that the applicant’s case (as revealed in the protection visa application), was “weak”. The applicant sought to criticise this submission by submitting in reply that such a weakness illustrates that the applicant needed a migration agent to make submissions for him.

18. It cannot be that the applicant means to argue that the migration agent should have made submissions simply for the sake of making submissions.  Given the nature of the duty (see [291] above), and its objective, the applicant has not explained how, nor is it otherwise evident, that the relevant paragraphs in the submissions to the Minister in the Ministerial intervention request could have added anything of substance to the applicant’s case so as to fall within the description of “sufficient relevant material”, and to also meet the requirement of “to allow a full assessment of all the facts against the relevant criteria”.

19. As set out above, on the evidence before the Court, the applicant’s case for protection was based on no more than a reference to the general country situation in Lebanon. The paragraphs in the submissions to the Minister made by Mr Issa, did no more than traverse that same general country situation.

20. It is also important to note that the duty expressed in cl.2.19 of the Code of Conduct, is the provision of sufficient “relevant” information as against the “relevant criteria”. In the current case, that is a reference to the criteria in s.36(2) of the Act.

21. The submissions to the Minister were not directed to these criteria. The request to the Minister to intervene is a call to the Minister to exercise his power under s.417 of the Act. The Minister’s consideration is not fettered by any “relevant criteria”.

22. It may be unpalatable for the applicant now to accept that the claims he advanced, in his protection visa application, which he confirmed in

    
    

    cross-examination were the extent of his case, was a “weak” case.

23. His submission now was that the Minister’s “continued repetition” that the material in the protection visa application itself provided a weak case, only emphasised the fact that the applicant needed an advisor to make submissions on his behalf to support his case.

24. That may, or may not, be so. However, no migration agent, and at the relevant time, that included Mr Issa, could be expected to make any submissions that would “convert” a “poor” case into one that may satisfy the criteria for the grant of the visa.

25. The applicant’s submissions appeared to invite the proposition that Mr Issa should have done something, anything, to enhance the applicant’s case.  This sounds like the allegation that the applicant himself brought against Mr Issa, as to what he says Mr Issa proposed to him at their first meeting in October 2012 (see above at [254]).

26. The duty in cl.2.8(b) of the Code of Conduct is to “act in accordance with the client’s instructions”.

27. The applicant’s particular to ground two is that he gave instructions to Mr Issa to attend before the Tribunal, and that Mr Issa did not follow his instructions.

28. The applicant’s relevant affidavit evidence is as follows (the applicant’s affidavit of 2 March 2015 at [22]):

    “I asked Sam [Mr Issa] if there was a problem in my case. He said ‘your case is in court.’ I asked ‘are you allowed to go without me?’ Sam said ‘you don’t have to go to court and don’t worry about anything.’ He said ‘don’t worry about anything I will go to court for you, you don’t have to attend.’ He then gave me a document and asked me to sign. He said ‘sign the paperwork and I will deal with it. I can represent you in court.’”

    [In context, the reference to “court” was a reference to the Tribunal.]

29. The Minister submitted that this is not evidence that the applicant gave instructions to Mr Issa to attend the Tribunal hearing without him.  The Minister submitted that in cross-examination the applicant made plain that he only assumed Mr Issa would go without him.

30. The applicant’s response was, in effect, that his evidence is not inconsistent. However, the applicant’s submissions on this matter did not address the following points.

31. It is to be remembered that ground two was pressed on the basis that the Court was not satisfied that the requisite fraud on the part of Mr Issa was made out. For the reasons set out above in relation to ground one, the Court was not so satisfied.  In that circumstance, if Mr Issa did not act fraudulently in relation to the Tribunal hearing invitation, then the reason for Mr Issa to have made the statement the applicant now says he made, remains unexplained.

32. For the reasons set out above, the applicant’s evidence in this regard is not to be accepted over that of Mr Issa.  Mr Issa denied making the statement that the applicant attributed to him, and as the “Response to Hearing Invitation” form indicates (see CB 105 to CB 107), he was intending to go to the hearing with applicant, not on his own.

33. In any event, and further, the applicant’s submissions have not addressed what followed this claimed conversation.  As set out above, the Tribunal hearing did not take place.  Even if the applicant had given the instruction that Mr Issa was to go to the hearing alone (which, as set out above, I do not accept on the evidence), he signed a waiver document which meant the Tribunal hearing did not occur.

34. Mr Issa could not have acted in accordance with any instruction to attend the hearing, in circumstances where no hearing took place.

35. In all, ground two is not made out.

Conclusion

1. Neither ground of the application is made out. Therefore, it is appropriate to dismiss the application. I will make the appropriate order.

I certify that the preceding three hundred and eleven (311) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  10 September 2018