FEDERAL COURT OF AUSTRALIA

SZKET v Minister for Immigration and Citizenship [2008] FCA 653

Migration Act 1958 (Cth) ss 424A, 430, 477(1) 

Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565

Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17

SZKET v Minister for Immigration & Citizenship & Anor [2008] FMCA 142

SZKET v Minister for Immigration & Citizenship [2007] FCA 1705

SZKET v Minister for Immigration & Anor [2007] FMCA 1007

SZKET v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 137 of 2008

MCKERRACHER J

14 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant is to pay the costs of the first respondent fixed at $1,500 pursuant O 62 r 4(2)(c) of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of a Federal Magistrate (Scarlett FM) delivered on 4 February 2008 (SZKET v Minister for Immigration and Citizenship & Anor [2008] FMCA 142) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 September 1998.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as the Department was then known) to refuse to grant a protection visa to the appellant.

Background

2                     The appellant is a citizen of the People’s Republic of China and arrived in Australia in 1997.  Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his anti-communist opinions.  The appellant claimed that he had actively participated in the pro-democracy movement in 1989 and that he would be persecuted on his return because he applied for refugee status.

3                     The appellant claimed to fear persecution in China by reason of his political views and because he had lodged an asylum application in Australia. 

4                     He claimed that:

(a)               after failing to get into university, he joined an organisation which was an underground secret organisation intent on overthrowing the Chinese government;

(b)               he joined pro-democracy demonstrations in 1989.  In the ‘latest protests’, he and 70-80 people waved big banners outside the provincial government offices.  The banners called for the overthrow of the Chinese government.  He and his colleagues were ‘dragged away’ by the PSB and detained for three days before being released;

(c)               he organised a third round of demonstrations demanding compensation in a dispute.  As a result, he and his fellow demonstrators were taken away by the PSB;

(d)               he attempted to organise another bigger demonstration but found that he was on a PSB wanted list so he fled the city;

(e)               if he returned to China, he would be imprisoned because he was on the PSB wanted list. 

5                     The Tribunal found that the appellant was never persecuted for his political opinion and was not a high or even low level political activist.  The Tribunal accepted that the appellant may have participated in pro-democracy demonstrations in 1989, however, given his age at the time and independent country information that the authorities were only interested in a handful of key activists, the Tribunal did not accept that the appellant was or would be a person of interest to the authorities for anything he may have done in 1989.

6                     The Tribunal did not accept that the appellant had organised public demonstrations, and if he had, he would not have been released by authorities after three days’ detention.  Further, claims that he had fled after a third demonstration were contradicted by evidence given earlier in the hearing.  The Tribunal did not accept the explanation for this contradiction.  The Tribunal also did not accept that the appellant would be persecuted because he had applied for refugee status in Australia as the application had been treated confidentially and independent country information did not indicate that people face retribution from the Chinese government.  Based on problems with credibility of the appellant, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967).  

Federal Magistrate’s decision

7                     Before the Federal Magistrate the appellant claimed that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act) and that the decision was affected by fraud by the migration agent.  On 18 June 2007 the Federal Magistrate dismissed the application on the basis that it was incompetent due to s 477(1) of the Act (SZKET v Minister for Immigration & Anor [2007] FMCA 1007).  On 7 November 2007 Jacobson Jallowed an appeal from the earlier decision of the Federal Magistrates Court.  His Honour remitted the matter to the Federal Magistrates Courtby following the Full Federal Court decision of Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565 which required actual notification of the written statement required by s 430 of the Act (SZKET v Minister for Immigration & Citizenship [2007] FCA 1705).

8                     On remittal, his Honour held that as s 424A of the Act did not commence until 1 June 1999, it did not bind the Tribunal at hearing of 10 September 1998 (SZKET [2008] FMCA 142).  Secondly, his Honour noted that the Tribunal had invited the appellant to the hearing and that the appellant had indicated that he had attended after being informed of it by his migration agent.  Further, after the migration agent had informed him he was not acting for the appellant, the Tribunal wrote to the appellant and invited him to the hearing, which he did attend and gave evidence.  His Honour therefore found no evidence of fraud and no other statutory breach or breach of natural justice.  Finally, his Honour noted that there had been a delay of seven years between the decision of the Tribunal and the application to the Court.  However, his Honour found it unnecessary to make a finding on this issue and the application was dismissed on the basis that the grounds did not establish jurisdictional error.

Grounds of Appeal

9                     The appellant now pleads the following grounds in his notice of appeal:

(a)               ‘his Honour failed to consider the Applicant’s submissions of evidence about fraud by the migration agent’ (Ground 1);

(b)               ‘his Honour rely on evidence of court book.  The Tribunal had notify to the applicant residence address (Ground 2);

(c)               ‘the Court erred in holding that the finding of the RRT that it did not have jurisdiction error of law’ (Ground 3).

10                  At the hearing of the appeal before me the appellant submitted that his migration agent cancelled his representation without informing the appellant and without reference to him. 

11                  This complaint was essentially a repetition of the arguments which had been previously been upheld by Jacobson J when his Honour confirmed that actual delivery of the notice of the outcome of the decision of the Tribunal was required.  There is no doubt that the appellant attended the Tribunal hearing itself however and put his case which was duly considered by the Tribunal. 

12                  The appellant read to me from prepared notes which were interpreted and recorded.  In essence, however, there was nothing in this material which had not already been considered by Jacobson J in making the earlier order in his favour. 

13                  The judgment which is now the subject of appeal, however, is the decision of the Federal Magistrates Court by which the Court concluded, regardless of any question of service of the Tribunal’s decision, that the decision itself of the Tribunal was not in any way defective by virtue of jurisdictional or other error. 

14                  When I gave the appellant the opportunity to reply to counsel for the first respondent, he requested that he be allowed to go home to examine his records and reconsider the presentation of his submissions.  He said he had not adequately prepared and had not had the benefit of legal representation.  I asked the appellant to identify what materials at home he wished to examine and in the absence of him pointing to any particular materials, he simply made the point that he had not been as well prepared as he would like to be.

15                  I indicated to him that I had heard and understood his submissions and would consider them but that the burden was on him to prepare and present the appeal.  His understanding of that onus was reflected in the notes that he had prepared and from which he had read. 

16                  It did become apparent from his notes that by far his dominant complaint (apart from the adverse outcome) was the lack of receipt of the decision of the Tribunal.  As I have said, that issue has already been dealt with in the previous judgment.  As to the lack of legal representation, while the grounds of appeal might have been more skilfully drafted with the assistance of legal representation, for the reasons which follow, in my view legal representation would not have assisted or improved the possibility of success of arguing those grounds or grounds which might be discerned from the matters raised in oral submissions.  I did not permit the appellant the opportunity to have a further adjournment to reconsider the presentation of his appeal. 

Consideration

Ground 1

17                  The appellant claims that the Federal Magistrate failed to consider his submissions in relation to the alleged fraud by the migration agent.  On reading the Federal Magistrate’s reasons it is clear that at [18] to [22] his Honour did consider the appellant’s submissions on the issue.  His Honour rejected the appellant’s submissions on the basis that no evidence of any fraud could be discerned.

18                  Further, in Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30]-[33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal’s statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal.  The Full Court made the following comment at [33]:

… SZFDE requires that the agent in question is fraudulent in a way that affects 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. (emphasis added)

19                  It is clear that his Honour did consider the appellant’s submission on this topic but, in any event, it could not succeed. 

20                  There is no doubt that the appellant has had a substantive hearing and been granted relief in respect of this issue.  The decision of the Tribunal after the hearing was attended, was not of itself, tainted with any jurisdictional error.  The Tribunal rejected the appellant’s credibility.  The decision under appeal turned only on the question of whether or not the Tribunal had been in error in that regard.  The delay in filing the appeal was not the basis of the decision under appeal.

21                  The appellant has failed to establish this ground.

Ground 2 and Ground 3

22                  The appellant further alleges that:
 

 (2)       His Honour rely (sic) on evidence of court book.

            The Tribunal had notify (sic) to the applicant residence address.

(3)       The Court erred in holding that the finding of the RRT that it did not have jurisdiction to error of law.

23                  In relation to Ground 2, the appellant clarified orally, lest there be any doubt, that this ground related to the Tribunal’s failure to notify him of its decision.  That issue has already been dealt with (in his favour).  This is now the appeal from the re-hearing of his appeal by the Federal Magistrates Court.  At the re-hearing, the matter of service and late appeal did not affect the outcome as it was resolved on substantive grounds. 

24                  Ground 2 must be rejected. 

25                  In relation to Ground 3, it is submitted for the first respondent that the Tribunal did not find that it did not have jurisdiction to review the delegate’s decision, if that is the intended complaint.  To the contrary, the Tribunal reviewed the delegate’s decision.  The Federal Magistrate found that there was no jurisdictional error in the Tribunal’s decision and dismissed the appellant’s judicial review application on the basis that the Tribunal’s decision was a privative clause decision.  If it is assumed that the ‘error’ referred to in ‘erred’ in this ground, is intended as being an error of failing to find rather than in finding, there is still no basis advanced by particulars, argument or evidence for upholding this complaint. 

26                  Ground 3 must be dismissed. 

27                  No jurisdictional error has been identified.  In my view it follows that the appeal must fail.  In my opinion, the approach of the learned Federal Magistrate was entirely correct. 

Conclusion

1.         &nbMCKERRACHER J

14 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant is to pay the costs of the first respondent fixed at $1,500 pursuant O 62 r 4(2)(c) of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of a Federal Magistrate (Scarlett FM) delivered on 4 February 2008 (SZKET v Minister for Immigration and Citizenship & Anor [2008] FMCA 142) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 September 1998.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as the Department was then known) to refuse to grant a protection visa to the appellant.

Background

2                     The appellant is a citizen of the People’s Republic of China and arrived in Australia in 1997.  Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his anti-communist opinions.  The appellant claimed that he had actively participated in the pro-democracy movement in 1989 and that he would be persecuted on his return because he applied for refugee status.

3                     The appellant claimed to fear persecution in China by reason of his political views and because he had lodged an asylum application in Australia. 

4                     He claimed that:

(a)               after failing to get into university, he joined an organisation which was an underground secret organisation intent on overthrowing the Chinese government;

(b)               he joined pro-democracy demonstrations in 1989.  In the ‘latest protests’, he and 70-80 people waved big banners outside the provincial government offices.  The banners called for the overthrow of the Chinese government.  He and his colleagues were ‘dragged away’ by the PSB and detained for three days before being released;

(c)               he organised a third round of demonstrations demanding compensation in a dispute.  As a result, he and his fellow demonstrators were taken away by the PSB;

(d)               he attempted to organise another bigger demonstration but found that he was on a PSB wanted list so he fled the city;

(e)               if he returned to China, he would be imprisoned because he was on the PSB wanted list. 

5                     The Tribunal found that the appellant was never persecuted for his political opinion and was not a high or even low level political activist.  The Tribunal accepted that the appellant may have participated in pro-democracy demonstrations in 1989, however, given his age at the time and independent country information that the authorities were only interested in a handful of key activists, the Tribunal did not accept that the appellant was or would be a person of interest to the authorities for anything he may have done in 1989.

6                     The Tribunal did not accept that the appellant had organised public demonstrations, and if he had, he would not have been released by authorities after three days’ detention.  Further, claims that he had fled after a third demonstration were contradicted by evidence given earlier in the hearing.  The Tribunal did not accept the explanation for this contradiction.  The Tribunal also did not accept that the appellant would be persecuted because he had applied for refugee status in Australia as the application had been treated confidentially and independent country information did not indicate that people face retribution from the Chinese government.  Based on problems with credibility of the appellant, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967).  

Federal Magistrate’s decision

7                     Before the Federal Magistrate the appellant claimed that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act) and that the decision was affected by fraud by the migration agent.  On 18 June 2007 the Federal Magistrate dismissed the application on the basis that it was incompetent due to s 477(1) of the Act (SZKET v Minister for Immigration & Anor [2007] FMCA 1007).  On 7 November 2007 Jacobson Jallowed an appeal from the earlier decision of the Federal Magistrates Court.  His Honour remitted the matter to the Federal Magistrates Courtby following the Full Federal Court decision of Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565 which required actual notification of the written statement required by s 430 of the Act (SZKET v Minister for Immigration & Citizenship [2007] FCA 1705).

8                     On remittal, his Honour held that as s 424A of the Act did not commence until 1 June 1999, it did not bind the Tribunal at hearing of 10 September 1998 (SZKET [2008] FMCA 142).  Secondly, his Honour noted that the Tribunal had invited the appellant to the hearing and that the appellant had indicated that he had attended after being informed of it by his migration agent.  Further, after the migration agent had informed him he was not acting for the appellant, the Tribunal wrote to the appellant and invited him to the hearing, which he did attend and gave evidence.  His Honour therefore found no evidence of fraud and no other statutory breach or breach of natural justice.  Finally, his Honour noted that there had been a delay of seven years between the decision of the Tribunal and the application to the Court.  However, his Honour found it unnecessary to make a finding on this issue and the application was dismissed on the basis that the grounds did not establish jurisdictional error.

Grounds of Appeal

9                     The appellant now pleads the following grounds in his notice of appeal:

(a)               ‘his Honour failed to consider the Applicant’s submissions of evidence about fraud by the migration agent’ (Ground 1);

(b)               ‘his Honour rely on evidence of court book.  The Tribunal had notify to the applicant residence address (Ground 2);

(c)               ‘the Court erred in holding that the finding of the RRT that it did not have jurisdiction error of law’ (Ground 3).

10                  At the hearing of the appeal before me the appellant submitted that his migration agent cancelled his representation without informing the appellant and without reference to him. 

11                  This complaint was essentially a repetition of the arguments which had been previously been upheld by Jacobson J when his Honour confirmed that actual delivery of the notice of the outcome of the decision of the Tribunal was required.  There is no doubt that the appellant attended the Tribunal hearing itself however and put his case which was duly considered by the Tribunal. 

12                  The appellant read to me from prepared notes which were interpreted and recorded.  In essence, however, there was nothing in this material which had not already been considered by Jacobson J in making the earlier order in his favour. 

13                  The judgment which is now the subject of appeal, however, is the decision of the Federal Magistrates Court by which the Court concluded, regardless of any question of service of the Tribunal’s decision, that the decision itself of the Tribunal was not in any way defective by virtue of jurisdictional or other error. 

14                  When I gave the appellant the opportunity to reply to counsel for the first respondent, he requested that he be allowed to go home to examine his records and reconsider the presentation of his submissions.  He said he had not adequately prepared and had not had the benefit of legal representation.  I asked the appellant to identify what materials at home he wished to examine and in the absence of him pointing to any particular materials, he simply made the point that he had not been as well prepared as he would like to be.

15                  I indicated to him that I had heard and understood his submissions and would consider them but that the burden was on him to prepare and present the appeal.  His understanding of that onus was reflected in the notes that he had prepared and from which he had read. 

16                  It did become apparent from his notes that by far his dominant complaint (apart from the adverse outcome) was the lack of receipt of the decision of the Tribunal.  As I have said, that issue has already been dealt with in the previous judgment.  As to the lack of legal representation, while the grounds of appeal might have been more skilfully drafted with the assistance of legal representation, for the reasons which follow, in my view legal representation would not have assisted or improved the possibility of success of arguing those grounds or grounds which might be discerned from the matters raised in oral submissions.  I did not permit the appellant the opportunity to have a further adjournment to reconsider the presentation of his appeal. 

Consideration

Ground 1

17                  The appellant claims that the Federal Magistrate failed to consider his submissions in relation to the alleged fraud by the migration agent.  On reading the Federal Magistrate’s reasons it is clear that at [18] to [22] his Honour did consider the appellant’s submissions on the issue.  His Honour rejected the appellant’s submissions on the basis that no evidence of any fraud could be discerned.

18                  Further, in Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30]-[33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal’s statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal.  The Full Court made the following comment at [33]:

… SZFDE requires that the agent in question is fraudulent in a way that affects 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. (emphasis added)

19                  It is clear that his Honour did consider the appellant’s submission on this topic but, in any event, it could not succeed. 

20                  There is no doubt that the appellant has had a substantive hearing and been granted relief in respect of this issue.  The decision of the Tribunal after the hearing was attended, was not of itself, tainted with any jurisdictional error.  The Tribunal rejected the appellant’s credibility.  The decision under appeal turned only on the question of whether or not the Tribunal had been in error in that regard.  The delay in filing the appeal was not the basis of the decision under appeal.

21                  The appellant has failed to establish this ground.

Ground 2 and Ground 3

22                  The appellant further alleges that:
 

 (2)       His Honour rely (sic) on evidence of court book.

            The Tribunal had notify (sic) to the applicant residence address.

(3)       The Court erred in holding that the finding of the RRT that it did not have jurisdiction to error of law.

23                  In relation to Ground 2, the appellant clarified orally, lest there be any doubt, that this ground related to the Tribunal’s failure to notify him of its decision.  That issue has already been dealt with (in his favour).  This is now the appeal from the re-hearing of his appeal by the Federal Magistrates Court.  At the re-hearing, the matter of service and late appeal did not affect the outcome as it was resolved on substantive grounds. 

24                  Ground 2 must be rejected. 

25                  In relation to Ground 3, it is submitted for the first respondent that the Tribunal did not find that it did not have jurisdiction to review the delegate’s decision, if that is the intended complaint.  To the contrary, the Tribunal reviewed the delegate’s decision.  The Federal Magistrate found that there was no jurisdictional error in the Tribunal’s decision and dismissed the appellant’s judicial review application on the basis that the Tribunal’s decision was a privative clause decision.  If it is assumed that the ‘error’ referred to in ‘erred’ in this ground, is intended as being an error of failing to find rather than in finding, there is still no basis advanced by particulars, argument or evidence for upholding this complaint. 

26                  Ground 3 must be dismissed. 

27                  No jurisdictional error has been identified.  In my view it follows that the appeal must fail.  In my opinion, the approach of the learned Federal Magistrate was entirely correct. 

Conclusion

1.                  The appeal will be dismissed.

2.                  The appellant is to pay the costs of the first respondent fixed at $1,500 pursuant O 62 r 4(2)(c) of the Federal Court Rules.

Associate:

Dated:         14 May 2008