Minister for Immigration & Citizenship v SZLIX

Federal Court of Australia (Full Court)|2008-03-05|Before: Dowsett JJ

The Court 1 The principal issue in this appeal is whether, on the evidence before him, it was open to the Federal Magistrate properly to find that the decision making process of the Refugee Review Tribunal in relation to an application for review of a decision refusing the first respondent's ("the respondent") application for a protection visa was compromised by third party fraud, ie a fraud practised on the Tribunal by a person other than the respondent which disabled it from the due discharge of its statutory functions with respect to the conduct of the review: SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 at [51]-[52]. In our opinion it was not. 2 Given the issue in the appeal, it is necessary to set out in detail the evidence, such as it was, that informed his Honour's decision.

Background 3 The respondent, a Chinese national, founded his claim of fear of persecution by the Chinese authorities on the ground that he was a Falun Gong practitioner in China. His application having been refused by a delegate of the Minister, he applied for review by the Tribunal and a hearing date was later fixed for 12 April 2006. The respondent received a s 425 invitation to attend the hearing. He made no contact with the Tribunal prior to the hearing date but did attend on that date, albeit after the scheduled hearing, and stated that he wanted to give oral evidence and to present arguments. A re-scheduled hearing was fixed for 26 June 2006 and an invitation to attend was sent to the respondent. He neither made contact with the Tribunal nor attended the hearing. The Tribunal then dealt with his application as was permitted by s 426A of the Migration Act 1958 (Cth). It affirmed the decision not to grant him the visa. 4 Put shortly, the Tribunal's reasons for so doing were that his claims were vague and general amounting, in effect, to no more than unsupported allegations; he provided no details either of his activities as a Falun Gong practitioner in the six year period from when he claimed he joined to when he left China, or of any activity against, or adverse interest in, him; he provided no documentary evidence to support his claims; and, importantly for present purposes, the Tribunal was unable, because of his non-appearance, to question him about concerns raised by his written application. Central to the present appeal are the circumstances leading to the respondent's failure to attend the hearing after which his application was dismissed. 5 Following the Tribunal's decision, the respondent was placed in immigration detention and steps were put in train to have him removed from the country. It would appear that on 21 September 2007, one day before that removal was to occur, the respondent filed in the Federal Magistrates Court an application to show cause why (inter alia) the Tribunal's decision should not be quashed and the Minister be forbidden from putting the Tribunal's decision into effect. That application was heard on 24 September 2007 and judgment was delivered on 28 September 2007. This haste in the disposition of the matter probably explains in some degree the quite unsatisfactory state of the evidence before the Federal Magistrate. 6 Annexed to the respondent's application to the Federal Magistrates Court was an affidavit to which was attached the following typed document: "1. When I lodged the application for a Protection Visa on 28 November 2005, I hired and fully authorized a migration agent to take care of my application due to my language barrier and lack of legal knowledge. I signed some documents as the agent advised without knowing what they are. After my application was refused by the Department, the agent noticed [sic] me he will file a review application with the RRT on my behalf. Shortly after that, he gave me date and time of the hearing and advised me to attend the hearing by myself. When I arrived at the RRT according to the time I was given, I was advised by an interpreter that the Member would not attend the Tribunal. I showed the Tribunal my intention of providing oral evidence and was advised I will be given another hearing. The Tribunal also advised that I would receive the new hearing invitation within 2 weeks. 6 weeks after that I still have not received anything from the Tribunal. I then moved to Brisbane and worked there. I informed the agent my new contact address and left him my phone number before I left. Since the agent was my authorized correspondence receiver, I required him to inform me the next hearing date promptly once it is set. However, I have never received anything from him since. 2. I only realized I missed the second RRT hearing after I was put in VIDC. I filed a FOI request for the documents regarding my PV application but could not have it when I lodged the judicial review application with the Federal Magistrates Court. The application was therefore rejected. I believe if I could have attended the RRT hearing, I would have a chance to present oral evidence and clarify some major issues lay out in the RRT's decision record regarding my refugee claims. I also believe the migration agent has not acted professionally. He never intended to discuss with me my persecution experience due to my Falun Gong background. This is the reason why the Tribunal states that my claims were vague and general. I strongly believe this is why the agent did not want me to attend the RRT hearing."

The Hearing before the Federal Magistrate 7 At the hearing on 24 September 2007, the Federal Magistrate identified several issues at the outset about which he required information. One was the identity of the migration agent. Another was whether the respondent's original application for a protection visa appointed this migration agent as the recipient of his correspondence. There was no green book before the Federal Magistrate and the Tribunal's file was not in Court. 8 The respondent (through an interpreter) said in unsworn evidence that the migration agent's surname was "Guo"; he was introduced to him by a friend and he gave him $800 to take care of his case; he did not know much about the migration agent; and it was his migration agent who gave him the date and time of the first Tribunal hearing. 9 Early in the hearing the Federal Magistrate indicated that he had to have sworn testimony from the agent and the respondent-applicant. The matter was twice adjourned and the hearing resumed in the afternoon of the same day. The solicitor who was appearing for the Minister then filed and read an affidavit which annexed various documents from the Tribunal's file. The first was a copy of the application to the Tribunal to review the delegate's decision. In the document the respondent indicated he did not want to appoint an authorised agent; he gave as his address for correspondence a post office box in Auburn; he gave a residential address in Blacktown; and he answered "no" to the question in Section C of the form, "Do you have an adviser you authorise to act for you in relation to this application?" and no details of any migration agent were provided. When he was later questioned on this document, he denied he ever lived at the stipulated residential address; he lived in Auburn for one month; the post office address was that of one of his friends and it was where he wanted mail sent; he denied that the signature on the application was his and he speculated that "maybe it's written by my migration agent". He added that when he left Auburn he went to a farm near Campbelltown but he could not provide an address. 10 The four other documents annexed to the affidavit were letters to the respondent from the Tribunal advising him, variously, of the first hearing date (12 April 2006), the second hearing date (26 June 2006), the handing down of the decision and the provision of a copy of the Tribunal's reasons. All were addressed to the respondent care of the Auburn post office box. 11 The respondent was examined by the Federal Magistrate on the attachment to his affidavit. Importantly for present purposes, he reiterated that he was introduced to the migration agent by a friend; he paid the agent money; he only saw him once and never heard from him again; if the agent needed to contact him, the agent contacted his friend who told the respondent about "anything they want to know". The Federal Magistrate's initial questioning of him concluded with the following exchange: "FEDERAL MAGISTRATE: How did you expect that you'd be notified by the Tribunal that you were required to go to a second hearing, when you said it was going to go to your agent? You just told me there wasn't any agent, or you couldn't contact the agent or you hadn't heard from the agent. So the notice was going to go to your friend's post office box, wasn't it? INTERPRETER: My friend just said he would give me whatever he received, letters sent to me, so I don't know if he gave me all the letters he received. FEDERAL MAGISTRATE: That's not what that document says. Do you still maintain that the contact is correct? INTERPRETER: Yes."

12 The respondent was later recalled and, in response to the Federal Magistrate's questioning, he emphatically denied that his friend and the migration agent were the same person; his friend's name was Mao Pong Chong, but he could not provide an address as he had lost contact with him. 13 Towards the end of the hearing the following exchange took place between the Federal Magistrate and the Minister's solicitor: "MS NANSON: Your Honour, if your Honour wishes to pursue the issue of who gave the applicant migration advice, if your Honour considers that to be necessary, I think that's a little difficult, actually, because the migration agent's surname only has been provided and normally one would require that person to appear before this Court for the purpose of cross-examination. FEDERAL MAGISTRATE: Yes. MS NANSON: I don't think that avenue can be pursued, in light of the applicant's inability to provide a name. FEDERAL MAGISTRATE: When I read the documents this morning that was a course that I thought I would pursue but it becomes apparent that - - - MS NANSON: Yes, your Honour. FEDERAL MAGISTRATE: My suspicions arose because of the address used of the post office box, because I've just noticed that a very similar address is used in many applications to this Court, similar to the post office boxes that appear at 226 Elizabeth Street, Surry Hills, which have moved around Pitt Street to various premises and have now been relocated at 226, of which there is an unofficial agent operating those boxes. I have a strong suspicion the same thing applies at Auburn. MS NANSON: I see. I didn't know that, your Honour."

The Federal Magistrate's Decision 14 The evidence, documentary and oral, referred to above was recounted by the Federal Magistrate. His Honour noted that the evidence the appellant gave concerning his review application to the Tribunal, and notably that the signature on it was not his, indicated that the application as a whole was invalid "because of a breach of s 412 of the Act." This observation would seem to suggest that his Honour regarded the application as not having been "made by the non-citizen who is the subject of the primary decision": s 412(2). In the event, this finding had no operative effect in his Honour's disposition of the matter, but it did elicit the comment that: "However, an applicant who has recently arrived in Australia and is unable to understand English or the legal requirements of a protection visa application, and is forced to rely upon the assistance of others is, unfortunately, at the mercy of unscrupulous people." 15 The Federal Magistrate then noted both the "apparent inconsistencies" between the respondent's oral evidence and the contents of the document attached to his affidavit relating to his dealings with the migration agent and the participation of his friend in them, and the respondent's insistence that the attachment to his affidavit was "true". 16 His Honour continued: "16. I am satisfied that the Tribunal fulfilled its obligation to provide the applicant with an opportunity to appear before it and give further evidence. The initial invitation contained notification that the Tribunal was not satisfied that the applicant had provided sufficient material to satisfy it that any protection obligations existed. To this extent, I am satisfied that the Tribunal did not make any jurisdictional error. Nor is it apparent from a fair reading of the Tribunal decision that any other jurisdictional error exists. 17. However, I am concerned about the role of the person who held himself out to be a migration agent to the applicant when he made his original visa application. I acknowledge that the applicant's evidence is inconsistent and, in relation to certain aspects, evasive. Nevertheless, some of the material in this application shares commonalities with other protection visa applications made by Chinese nationals. An increasing number of applications before this Court have, as the address for receipt of correspondence, post office boxes in Auburn, New South Wales. A pattern is clearly emerging with the use of these particular post office boxes as the receiving point for correspondence addressed to applicants, whatever their actual physical location within the Sydney metropolitan area. 18. The applicant's Tribunal application listed an address in Blacktown as his residential address. In sworn evidence, the applicant denied ever residing in Blacktown and claimed that he resided in Auburn before moving to Campbelltown and then to Brisbane. The applicant claims that when his initial visa application was denied by the Minister's delegate, the migration agent informed him that he would lodge a review application and that the agent would notify him of that application's progress. Although evidence given by the applicant is inconsistent in this respect, the material before the Court supports the view that this was probably what took place. 19. Another similarity amongst these Court applications is that the grounds of review are brief, formulaic and unparticularised, usually raising broad general concepts of administrative review or bland statements of jurisdictional error. A similar cluster of these types of applications have as their mailing address post office boxes at 226 Elizabeth Street, Surry Hills. The grounds of review in those applications are also formulaic, although more expansive in nature than in the present case. 20. Consistent across all these applications is that they were assisted by a friend and that the friend introduced them to a migration agent; but none of the applicants will name or identify the business address, telephone number or provide any contact details for the agent. Various reasons are advanced, but usually that they have lost contact with both the agent and the friend and cannot recall these relevant details. The applicant in this case reluctantly identified the alleged friend but could not provide any contact details. Similarly, the agent was identified as Mr Guo but no other details were forthcoming. 21. The recent High Court decision of SZDFE [sic] v Minister for Immigration and Citizenship [2007] HCA 35 applies to the circumstances in this matter. In this matter, an unqualified person holding himself out to be a migration agent has accepted money to prepare and submit various applications on behalf of the applicant in his attempt to obtain a protection visa. Similar to SZFDE, the Tribunal, in its decision-making process, was compromised by 'third party fraud'. I believe there is sufficient evidence before the Court to indicate that this has occurred despite the applicant's reluctance to identify the party involved. I believe that the applicant has been frustrated by being denied the opportunity to state his claims to the Tribunal. Equally, he has been intimidated by the activities of the alleged migration agent. 22. In the circumstances, I believe that the matter must be returned to the Tribunal for proper consideration of the applicant's claims." 17 The initial comment we would make on his Honour's reasons is that findings of fact are sparse indeed with the consequence that it is difficult to divine the precise basis upon which particular conclusions were reached.

The High Court's Decision in SZFDE 18 Put shortly, the issue in SZFDE was whether the conduct of a person engaged for reward by four unsuccessful protection visa applicants to whom he falsely held himself out to be a registered migration agent and practising solicitor and had advised them not to appear at a Tribunal hearing of their review application because the Tribunal was "not accepting any visa applications at all at the moment" (which advice was acted on and their review application was rejected), had in the circumstances disabled the Tribunal from the due discharge of its imperative statutory functions with respect to the conduct of the review: SZFDE at [51]; such that its decision was, in law, no decision at all. 19 The alleged agent was not present at the proceedings giving rise to the appeal. Nonetheless, the Court indicated that the identification of his motives in acting as he did may be a matter of inference drawn from the available material: at [38]. The Court concluded that the inference was well open upon the evidence that the agent acted as he did for self protection, "lest in the course of a tribunal hearing there be revealed his apparently unlawful conduct [in receiving reward for giving immigration assistance as an unregistered migration agent and not being a lawyer] in contravention of restrictions imposed by Pt 3 Div 2 of the Act, and particularly by s 281": at [45]. That section imposes restrictions on charging fees for immigration assistance. 20 Having identified the agent's fraud, the Court indicated the ultimate issue as being the effect of the agent's fraud upon the Tribunal's decision-making process for which the Parliament provided in Pt 7 of the Act. As was noted at [48]-[49]: "… the provisions of Pt 7 obliging the tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)) and empowering the tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B to 429A) for the conduct of reviews. By s 422B that Division provided that it is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule. The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. That this is so is manifest by the reasons given by the tribunal, which included the statement: The [first] applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention." 21 Having concluded that the agent had practised a fraud on the tribunal such that its decision was, in law, no decision at all, the Court went on to observe (at [53]): "The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations."

The Grounds of Appeal 22 It is convenient to set out six of the seven grounds verbatim as they reveal the layered challenge made to the Federal Magistrate's judgment. Ground 6 (relating to the validity of the review application to the Tribunal) is not live in this appeal. The remaining grounds are: "1. His Honour erred in finding that this was a case where the Tribunal, in its decision-making process, was compromised by 'third party fraud'. The elements of 'third party fraud' were not made out on his Honour's findings and a finding to that effect was not open to his Honour. 2. His Honour's finding that the 'agent' who assisted the applicant was not registered as migration agent was made without evidence in support, or was not open to his Honour. 3. There was no finding by his Honour - or, alternatively, it was not open to his Honour to find - that any advice by the 'agent' was fraudulent, or that the Tribunal's process was corrupted by any 'fraudulent' conduct of the 'agent'. 4. To the extent that his Honour relied upon suggested commonalities or similarities with other cases that his Honour indicated had come before the Court, of the kind described by his Honour at [17] and [19]-[20], his Honour erred as those matters were not sufficient to find fraud. 5. Alternatively to paragraph 4, to the extent that his Honour erred by relying upon suggested commonalities or similarities with other cases that his Honour indicated had come before the Court, his Honour erred by not particularising those to the Minister and giving the Minister a reasonable opportunity to answer whether those matters showed fraud in the present case. … 7. In the event that his Honour's judgment was based wholly or in part upon the finding that the applicant before the Tribunal was 'intimidated by the activities of the alleged migration agent', his Honour erred. This is because upon all or each of the following bases it was not open to his Honour to find: i) that the applicant before the Tribunal had been intimidated; or ii) that such intimidation amounted to fraud; or iii) that any intimidation affected the Tribunal's process."

Consideration 23 The state of the evidence before the Federal Magistrate was, in our view, such that it revealed little about the alleged agency of the migration agent, but it suggested much about the veracity of the respondent. While the confused picture that emerged in the hastily conducted hearing may have engendered real suspicion in the Federal Magistrate - a suspicion obviously exaggerated by his Honour's experience with what he considered to be relatively comparable cases - that suspicion did not constitute proof of the serious allegation being made in the show cause application. 24 The evidence, insofar as it went, was that the respondent relied upon the services of a person said to be a migration agent named "Guo" to whom he was introduced by his friend through whom, the introduction apart, he had his dealings with the agent. The agent, according to the attachment to the respondent's affidavit in the show cause application, was authorised to take care of the protection visa application; he notified the respondent he would file a review application on his behalf; he informed the appellant of the date and time of the first scheduled hearing and advised him to attend by himself; he was the respondent's "authorised correspondence receiver" (a statement contradicted both in the respondent's oral evidence and in the review application form itself); and, before moving to Brisbane, the respondent informed the agent of his new contact address and phone number and required the agent to inform him of the next hearing. 25 We simply note in passing that, if the respondent's evidence is accepted that, their introduction apart, the dealing between him and his migration agent were via his friend - "[the agent] never contacted me" - then all of the above dealings followed that rather circuitous and vulnerable chain of communication. His Honour did not address this. Neither did he explore the inconsistencies and contradictions in the respondent's evidence nor address their significance. 26 Nothing in the above evidence, in our view, sheds any light on the question whether the migration agent was, or was not, registered. Counsel for the respondent asks us to infer such was the case from the fact that no reference was made to the migration agent in Section C of the review application form notwithstanding that the agent on the respondent's evidence filed (and presumably prepared) that application. All that Section C required was the disclosure of the "adviser you authorise to act for you in relation to this application". If there was a failure to disclose that the registered migration agent had so provided immigration assistance, this may have provided evidence of a strict liability offence under s 312B of the Act: see also s 276 which defines "immigration assistance". If an unregistered migration agent had provided such immigration assistance for reward, that person would commit an offence under s 281 of the Act even though such a person's details were not required to be provided in Section C. Either one of these contingencies may have occurred in the present matter. In short, even if it be accepted that there was a person assisting the respondent to some extent (as his Honour found), the conclusion that that person was "unqualified" could be no more than speculation, albeit speculation that may have been informed by experience. What could not be said was that this was an inference that was reasonably drawn as the most probable deduction from the established facts: cf Holloway v McFeeters (1956) 94 CLR 470 at 477. There simply was no adequate substratum of facts. For this reason we consider Ground 2 of the Grounds of Appeal has been established and that it was not open to his Honour to make a finding that the appellant's agent (if there was such a person) was an unregistered migration agent. 27 Distinctly, the evidence concerning the conduct of the agent could not itself support a finding of fraudulent conduct by that person which occasioned the respondent's failure to attend the second scheduled Tribunal hearing. The respondent was notified of, and attended (albeit late), the first scheduled hearing of the Tribunal. On his evidence, he did so on the advice of his migration agent. Seemingly, whatever fraud the agent wished to practise on the Tribunal was not put into effect in relation to that hearing. 28 The Tribunal, in notifying the respondent of the second scheduled meeting, followed the same course of notification as it did in relation to the first. It addressed the invitation to the respondent care of the Auburn post office box. The wrong alleged to have been done by the agent is the dishonest failure to honour his representation to convey to the respondent the date of the new hearing. 29 If the respondent's oral evidence is to be accepted concerning his chain of communication with his agent - this is not the subject of any explicit finding - again it is not possible properly to infer from the material before his Honour that it was the agent's dishonest failure that resulted in the content of the Tribunal's invitation not being conveyed to the respondent. It is equally probable that that failure could be ascribed to an error or omission of his friend. 30 Even assuming both that the invitation reached the agent and that the agent had undertaken to notify the respondent - his Honour (at [18]) appears to make this latter finding - there is again, in our view, no substratum of facts which would justify the inference that the agent dishonestly omitted to inform the respondent. That failure could as easily be ascribable to oversight or negligence. 31 Counsel for the respondent has sought to avert the above conclusion by contending, in effect, that the fraud inhered in the agent holding himself out to be registered when he was not registered, so depriving the respondent of the services of a registered agent who was subject to the regulatory regime of Pt 3 of the Act. Whether or not the failure to inform the respondent was deliberate or negligent, the agent's actions as an unregistered person were, it is said, causally connected to the frustration of the procedural fairness scheme of Pt 7 Div 4. 32 We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent's acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal's discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a "fraud on the Tribunal". 33 The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent's submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant's absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud. 34 We will order that the decision of the Federal Magistrate be set aside, and that the first respondent pay the appellant's costs of the appeal and of the hearing before the Federal Magistrate. Because of the unsatisfactory state of the evidence upon which his Honour was asked to make his decision - we imply no criticism of him in this - we consider that the appropriate course is to remit the matter to his Honour for re-hearing. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Finn and Dowsett.

Solicitor for the Appellant: Australian Government Solicitor

Date of Hearing: 22 February 2008

Migration Act 1958(Cth)ss 276, 281, 312B, 412(2), 425(1), 422B, 426A, 429A, Pt

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