FEDERAL COURT OF AUSTRALIA

SZMMF v Minister for Immigration and Citizenship [2008] FCA 1882

MIGRATION – application for a protection visa – whether conduct of appellant’s migration agent was fraudulent conduct which had the consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellant

Held: appeal dismissed

Migration Act 1958 (Cth)

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

SZMMF v Minister for Immigration [2008] FMCA 1403

SZMMF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD1692 of 2008

JAGOT J

12 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against an order of the Federal Magistrates Court of 30 September 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZMMF v Minister for Immigration [2008] FMCA 1403).  Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees).  Section 474 of the Migration Act protects “privative clause decisions” (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error.

2                     The appellant is a citizen of China.  He arrived in Australia on 26 March 1996.  On 10 April 1996 the appellant applied for a protection visa with the Department of Immigration and Multicultural Affairs.  A delegate of the respondent Minister refused the application on 5 March 1997.  On 25 March 1997 the appellant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the decision on 30 April 1998.  The appellant appealed to the Federal Magistrates Court from the Tribunal’s decision on 27 June 2008. 

3                     The period of over ten years between the Tribunal’s decision and the commencement of the appeal is explained by events recorded by the primary judge.  The appellant was arrested in June 2000 after trying to renew a driver’s licence.  He was placed in immigration detention.  He employed migration agents who obtained bridging visas on the basis of his promises to depart Australia, which he failed to do.  His bridging visas expired on 20 December 2000.  In June 2008 the appellant was again taken into immigration detention.  He requested and was given a copy of the Tribunal’s decision.  He then commenced his appeal in the Federal Magistrates Court.  The Federal Magistrates Court dismissed the appeal on 30 September 2008.

4                     In his application to the Federal Magistrates Court the appellant identified one ground of appeal, namely that the Tribunal’s decision remained “constructively unexercised” as it was influenced by the fraud of the appellant’s migration agent.  This appeal ground was particularised as follows: - (i) the migration agent failed to include details of the appellant’s persecution in his original application for a protection visa, (ii) the appellant’s application to the Tribunal lodged by the migration agent contained serious errors, and (iii) the migration agent failed to inform the appellant of the progress of his application, the decision of the Minister’s delegate, or the Tribunal’s invitation to attend a hearing.

5                     The appellant did not appear at the Tribunal hearing.  The Tribunal found as follows:

As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.

…

In this case, it has not been possible to satisfy the doubts that exist about the Applicant’s claims, first due to the conflicting information about where he was working and at what occupation, and second due to the indications from independent country information that the troop movements and stationing decisions which form the central core of his claims did not occur until some time later than he asserts which, in this case, tends to undermine the credibility of his story.  In the absence of the Applicant attending a hearing and giving direct evidence, I am unable to resolve these inconsistencies.

…

The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so.  Nor has he given the Tribunal the opportunity to explore aspects of his claims with him.  A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

6                     On 14 October 2008 the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court.  The notice of appeal specifies only one ground, being that the Federal Magistrates Court failed to identify the fraud committed by the appellant’s migration agent, who did not submit the appellant’s refugee claims to the Minister or keep the appellant informed of the progress of his application.

7                     The primary judge dealt with this issue concluding that, if the Court accepted the appellant’s version of events, “they fall far short of establishing a jurisdictional defect in the procedures of the Tribunal leading to its decision, of the sort which has been explained by the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189…”.  The primary judge found that, at most, the migration agent failed to inform the applicant of correspondence from the Tribunal inviting the appellant to attend the hearing.  This was not fraudulent conduct which “had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the [appellant]” (SZFDE at [49]).

8                     The appellant’s oral submissions did not identify any error in the decision of the Federal Magistrates Court.  The primary judge was correct to conclude that the appeal ground has not been made out.  Further, and in any event, I also agree with the primary judge’s observation that the long delay between the Tribunal’s decision (30 April 1998) and appeal (27 June 2008) warranted the refusal of relief in the exercise of the Court’s discretion.

Associate:

Dated:         12 December 2008