SQMB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This appeal needs to be understood in the context of its procedural history. The appellants, who are husband and wife and are citizens of India, were unsuccessful applicants for protection visas. The husband, the principal claimant, is a Sikh from Punjab. In broad terms, he claimed to have a well-founded fear of persecution by reason of his religion and ethnicity and because he was framed by the police who charged him with drug offences because he was not prepared to pay a bribe. That claim was rejected for reasons upon which it is not necessary to enlarge here. 2 The appellant sought judicial review of that decision on 18 June 2003. Directions were subsequently given for the preparation of the application for hearing. The appellants did not comply with those directions. The matter came on for further directions on 17 October 2003. On that occasion, counsel appearing for the applicant intimated that: "[t]he applicant has not complied with the [c]ourt orders and does not wish the matter to proceed to a hearing". In those circumstances the application was dismissed by order made on the same day. 3 On 9 November 2003 the appellants appealed to the Full Court from the decision dismissing their application. They contended they had not given the solicitor, who appeared for them on the 17 October 2003 hearing, instructions that they did not wish the matter to proceed to a hearing. When the matter came on for hearing by the Full Court on 18 November 2004, the appeal was allowed by consent and the orders made on 17 October were set aside. The respondent Minister's consent was on the basis that the solicitor appearing for the appellants on 17 October did not have instructions that they did not wish to proceed with their application. The matter was remitted to a single Judge for re-hearing of the application for judicial review. 4 At the time that application was first filed, the grounds upon which jurisdictional error was asserted were expressed in quite general terms. An amended application was filed on 16 December 2004. The grounds of the application were: "1. The decision of the Tribunal was affected by the fraud of the applicants' migration agent. 2. The decision of the Tribunal was invalid and constituted a failure to exercise the power vested in it by law, in that there was a failure to comply with s 425 of the Act. 3. A breach of the rules of procedural fairness occurred in connection with the making of the decision of the Tribunal. 4. The decision of the Tribunal was invalid and constituted a failure to exercise the power vested in it by law, as it failed to 'review' the decision of the delegate of the respondent as required by s 414 of the Act." 5 The particulars supporting each of those grounds were in the following terms: "1.1 The applicants understood only limited English, and relied upon their migration agent to advise them in relation to their application for protection visas under the Act. 1.2 The applicants' agent did not explain to them: (a) that, on 11 July 2002, he had filed an application with the Tribunal for review of the decision to refuse them protection visas made on 13 June 2002; or (b) the nature, effect or requirements of making such an application to the Tribunal. 1.3 On 1 April 2003, the Tribunal, pursuant to section 425 of the Act, wrote to the applicants inviting them to appear before it to give evidence and present argument. 1.4 The applicants' agent did not inform them that the Tribunal had invited them to appear before it to give evidence and present argument. 1.5 The applicants' agent did not provide any advice in relation to the invitation. 1.6 The applicants' agent told the applicants to sign a response to hearing invitation form, which was then returned to the Tribunal indicating that the applicants did not wish to appear to give evidence and present argument. 1.7 By reason of the conduct of the applicants' agent, the applicants did not appear before the Tribunal." 6 Section 425(1) of the Migration Act 1958 (Cth) requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 426(1) and s 425A provide for the content of the invitation to appear which must be given and the means by which the notice must be given. Section 426A(1) provides that if an applicant, having been invited under s 425 to appear before the Tribunal, does not appear at the time and place scheduled, "the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it". As is clear from the above history, the Tribunal took that course in the present matter. We would note in passing, there is no dispute that the document which the principal applicant received concerning the Tribunal hearing complied with s 425A and s 426. 7 The primary Judge (Mansfield J) took the view that in light of the serious allegation of fraud on the part of the migration agent, the migration agent should be served with the appellant's material. The migration agent in turn attended in person and participated at the hearing. Evidence was given by the principal applicant, by two employees of the migration agent at the relevant time, as well as by the migration agent and his wife. Additional documents held by the appellant's former solicitor which had been received by the migration agent were before the Court. 8 His Honour did not believe the principal appellant's story that he did not understand or was deliberately misled by the migration agent as to what was transpiring. Mansfield J found at [32]: "… the decision not to attend the hearing was made by the principal applicant, knowing of the application being before the Tribunal and knowing of the opportunity to attend the Tribunal hearing to give evidence and to make submissions. It was not as a consequence of fraud on the part of the migration agent, nor any gross dereliction of his responsibility … that the decision was made by the principal applicant not to attend that hearing." 9 His Honour was not impressed by the principal applicant as a witness; he was calculating in certain of his answers; and he answered so as best to serve his case and the picture he sought to present rather than seeking properly to respond to questions. His evidence, furthermore, was inconsistent with that of the migration agent and the two employees in critical respects (e.g. about the principal appellant's ability to speak English and the conversations concerning the invitation to attend the Tribunal hearing). The evidence of those witnesses was preferred over the appellant's and the application was dismissed. 10 The appellants' notice of appeal ("the Notice") is starkly uninformative. It states no more than that "the learned primary judge erred in fact and law". This does not comply with the requirements of O 52 r 13 of the Federal Court Rules. The Notice's deficiency has not been remedied. The appellants have not filed and served written submissions for the purposes of the appeal. 11 At the hearing of the appeal the male appellant, who was unrepresented, merely reiterated his allegations against the migration agent. He did not make any serious attempt at all to demonstrate error let alone appealable error on the primary Judge's part and, in the circumstances, as counsel for the respondent indicated in her submission, he could not. His Honour's decision simply discloses no error and no error of principle. 12 The appeal will be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Emmett and Bennett.