FEDERAL COURT OF AUSTRALIA

SZLQI v Minister for Immigration and Citizenship [2009] FCA 1458

SZLQI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1133 of 2009

GRAHAM J

24 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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                                             The appellant, who is identified for the purposes of these proceedings as ‘SZLQI’, was born in South Korea in 1961.  He left South Korea, travelling on a passport issued to him by the Republic of Korea on 18 March 2003.  His departure date from South Korea was 2 April 2003.  On 3 April 2003, he arrived in Sydney.  On 7 May 2003, the appellant applied for a Protection (Class XA) visa.  He claimed to be a person who, owing to well-founded fear of being persecuted for reasons of political opinion, was outside South Korea and was, owing to such fear, unwilling to avail himself of the protection of that country.  He expressed his claim to refugee status in his application for a Protection (XA) visa in the following terms:

‘… In 1998 I started my own chicken farm business.  I borrowed money to operate my business.  However, in 1998 the IMF crisis in Korea had become very serious and business was not that good.  As a result, I lost about 30,000,000 won (Korean currency).  I was in debt and found it very hard to survive.  I could not pay back my debts. …

It was at that point that I was recruited into an underground group of businessmen who blamed the government for causing the IMF crisis.  Our group organised secret meetings at night to try to find ways to change the government because we disagreed with the government’s policies on monetary and financial affairs.

Our activities came to the notice of the authorities, who sent secret service agents and armed police to break up our meeting one night and several members of the group were arrested.  I therefore cannot return to Korea for fear of being arrested for my political activities.

…’

2                                             On 22 May 2003, the appellant’s application for a Protection (Class XA) visa was refused by a delegate of the Minister.  On 5 June 2003, he applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the Minister’s delegate’s decision.  On 28 August 2003, the Tribunal extended an invitation to the appellant to attend a hearing of the Tribunal.  The Tribunal’s letter inviting the appellant to attend the Tribunal hearing was addressed to him, care of his authorised recipient, who had been named in his application for review.  There was a discrepancy between the address given for the authorised recipient in the application for review and that appearing on the authorised recipient’s covering letter, under cover of which the application for review form was submitted to the Tribunal.  The point of variance was in the omission of one number at the end of the number given as the authorised recipient’s post office box number. 

3                                             The invitation to the hearing was posted by registered post on 28 August 2003 to the appellant, care of his authorised recipient at the correct post office box number for that recipient, to the authorised recipient himself at that post office box number, and also to the appellant at the address which he included in his application form for a Protection (Class XA) visa as his current residential address.  The invitation to the Tribunal hearing included:

‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above to come to a hearing of the tribunal to give oral evidence and present arguments in support of your claims.  You can also ask the tribunal to obtain oral evidence from another person or persons.’

The appointed time for the tribunal hearing was 10:00am on Tuesday 11 November 2003. 

The invitation would appear to have been accompanied by a brochure explaining what would happen on the day of the hearing entitled ‘What is a Hearing?’, multilingual advice and also a ‘Response to Hearing Invitation’ form.

4                                             On 8 September 2003 a Response to Hearing Invitation was submitted to the Tribunal by or on behalf of the appellant.  The response form was signed by the appellant and dated 8 September 2003.  It indicated that the appellant did ‘not want to come to a hearing’, a cross having been placed in the box adjacent to the word ‘NO’.  On 20 November 2003 the responsible Tribunal member decided to affirm the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa. 

5                                             The Decision and Reasons for Decision included a reference to the invitation to attend the hearing and the receipt by the Tribunal of an advice in writing that the appellant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.  In the circumstances, the Tribunal member proceeded to determine the matter on the evidence available to the Tribunal which was confined to the material contained in the original application form.  The Tribunal member concluded that the Tribunal was:

‘… not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.’

6                                             Decisions upon the grant or refusal of protection visas are made in the first instance by the Minister, his or her powers normally being exercised by one or other of the Minister’s delegates for the purposes of s 65 of the Migration Act 1958 (Cth) (‘the Act’).  Section 65 of the Act relevantly provides:

‘65(1)  After considering a valid application for a visa, the Minister:

(a)        if satisfied that:

…

(ii)        the other criteria for it prescribed by this Act or the regulations have been satisfied;  …

…

is to grant a visa; or

(b)        if not so satisfied, is to refuse to grant the visa.’

7                                             The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which, relevantly, for present purposes, provided as follows:

‘36(2)  A criterion for a protection visa is that the applicant for the visa is:

(a)        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; …’

The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 

8                                             Satisfaction under s 65 (1) is not to be addressed by deciding where the truth lies on the balance of probabilities. 

9                                             As has been said many times, proceedings in the Tribunal are not adversarial, but rather, inquisitorial.  The Tribunal is not in the position of the contradictor of the case being advanced by the applicant.  The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair.  In the present case, the Tribunal member was not satisfied that the appellant had a well-founded fear of being persecuted for reasons of his political opinion who, owing to such fear, was outside the country of his nationality and who, owing to such fear, was unwilling to avail himself of the protection of his country. 

10                                          On 5 January 2004 the appellant’s migration consultant wrote to the Minister requesting, pursuant to s 417 of the Act, that she substitute for the decision of the Tribunal a decision more favourable to the applicant.  By letter dated 14 September 2004, the appellant was advised through his migration consultant that his case had been referred to the Minister.  However, on 27 July 2004, the Minister decided not to consider exercising her power under s 417 in the circumstances of his case. 

11                                          The appellant proceeded to institute proceedings for constitutional writ relief in the Federal Magistrates Court of Australia in respect of the decision of the Tribunal of 20 November 2003, which had been handed down on 16 December 2003.  That Application was not, however, lodged until 14 November 2007.  It was superseded by an Amended Application of 28 April 2008, a Further Amended Application filed 17 November 2008, a fresh Further Amended Application filed 15 December 2008 and a Final Amended Application filed 9 February 2009.  The grounds contained in the various iterations of the application changed from one form of application to the next.  The ultimate application, being the Final Amended Application filed 9 February 2009, contained four grounds, but the second and third grounds were not pressed when the matter came on for hearing.  The two grounds that were pressed were as follows: 

‘1.        The Tribunal constructively failed to exercise its jurisdiction as a result of third party fraud by the Applicant’s migration agent and or Ms Hong, a person associated with the Applicant’s migration agent

Particulars

A.        Mr Eyeson-Annan [the migration agent] was recklessly indifferent to the truth of whether the Applicant declined to attend the hearing before the Tribunal, such that there was third party fraud on the Tribunal, by:

(i)        relying on an oral communication to him from Ms Hong that the applicant did not wish to attend the hearing, when she was not a NAATI accredited translator or interpreter for Korean to English and when he had received the hearing form signed in blank by the Applicant;

(ii)        and by then having the hearing form completed and then faxing it to the Tribunal declining the hearing invitation

when the Applicant did not decline the hearing invitation.

B.         Ms Hong was recklessly indifferent to the truth of whether the Applicant declined to attend the hearing before the Tribunal, such that there was third party fraud on the Tribunal, by:

(i)        communicating to Mr Eyeson-Annan that the Applicant did not wish to attend the hearing, when the Applicant did not decline the hearing invitation. 

…

4.         The Tribunal breached s426 of the Migration Act 1958

            Particulars

(i)         The Tribunal did not comply with s426(1)(b) as the requisite s425A notice did not notify the Applicant of the effect of s426(2).’

12                                          The application came before Barnes FM on four days in 2008 and two days in 2009.  Her Honour’s reasons for decision were handed down on 17 September 2009.  Her Honour ordered that the application be dismissed and that the applicant pay the costs of the first respondent, fixed in the amount of $22,000.  Her Honour dealt with the grounds of appeal that were pressed in reverse order.  In respect of ground 4, she concluded (see SZLQI v Minister for Immigration & Anor [2009] FMCA 910) at [27]:

‘27.      It has not been established that there was a failure to comply with s.426 of the Act in the manner contended for by the applicant. …’

13                                          In respect of the first ground in the Final Amended Application, her Honour found at [96] that the ground had not been made out.  She then said:

‘96.      … As no jurisdictional error has been established, the application must be dismissed.’

14                                          In the course of her process of reasoning on the ‘fraud’ ground, her Honour said at [85] – [86]

‘85.      The applicant in essence could not recall the discussion and said he did not ask what he was signing or why [referring to the response to hearing invitation form], but suggested that had he known about the Tribunal hearing, he would have gone.  Ms Hong’s evidence was not only that the applicant told her that he did not wish to attend the Tribunal hearing but also that he provided an explanation that he had to work.

86.       As the applicant could not recall the purport of discussions with Ms Hong, Ms Hong’s testimony as to what the applicant told her remains uncontroverted.  Indeed, it was not put to Ms Hong that her testimony in that respect was fabricated.  I accept her testimony, not being satisfied that there is a basis for an inference to the contrary …’

15                                          By a Notice of Appeal filed 8 October 2009 in this Court, the appellant appealed from the whole of the judgment of the learned Federal Magistrate given on 17 September 2009.  The grounds of appeal relied upon in this Court were as follows:

‘1.        The Federal Magistrate failed to identify the fraud conducted by Appellant’s migration agent which directly caused the failure of Appellant’s protection visa application;

2.         The Second Respondent affirmed the First Respondent’s decision not to grant the Appellant protection visa based on incomplete information and evidence.  The decision consequently contains jurisdictional error.’

16                                          The appellant chose not to file any written submissions in support of his grounds of appeal in response to the Court’s invitation that he do so.  He chose to present his arguments in support of his Notice of Appeal orally. 

17                                          In his submissions before me, he indicated that it was regrettable that he did not attend the hearing before the Tribunal.  He said, in respect of the response to hearing invitation, words to the effect, ‘I didn’t make it because I signed I couldn’t attend the court, but I don’t know why I signed.’  He then said words to the effect, ‘I was busy at work, so I couldn’t make it.’

When he was asked to identify what was the fraud of which he complained on the part of his migration agent, he simply said words to the effect that Mr Eyeson-Annan‘didn’t play his role as an agent’.  He indicated that he had nothing more to say. 

18                                          In respect of his ground of appeal number 2, the appellant did not understand what it was that he had asserted.  When the ground was further explained to him with the assistance of his interpreter, he indicated that his agent never told him to prepare for a possible hearing.  He said that he had not been told by Mr Eyeson-Annan that he should engage in preparation.

19                                          The findings of the learned Federal Magistrate in respect of the appellant’s communications with Ms Hong were not the subject of challenge.  In the circumstances, it is not open to the appellant on the hearing of this appeal to assert that he had not advised Ms Hong that he did not wish to attend the Tribunal hearing.  There has been no identification by the appellant of anything said to him that was said to be fraudulent, nor has there been any indication as to how any such communication may have been fraudulent, nor has there been any indication as to how the appellant may have acted to his detriment on the basis of any fraudulent communication. 

20                                          As the High Court held in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53]:

‘[53]   … 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. …’

(footnote omitted)

21                                          Nothing has been advanced by the appellant which would warrant a finding of fraud on the part of his migration agent or of Ms Hong.

22                                          In relation to the second ground of appeal before this Court, the respondent has submitted, quite rightly, that it was for the appellant to satisfy the Tribunal of the matters for which s 65(1)(a)(ii) of the Act provided.  The appellant failed to satisfy the Tribunal in respect of the requisite criteria for a Protection (Class XA) visa, and it is not open to the appellant to seek to have the benefit of a merits hearing in respect of that decision as part of his appeal. 

23                                          The appellant has failed to establish any grounds which would demonstrate jurisdictional error on the part of the Tribunal member.  There was no relevant fraud on the Tribunal and the appeal should be dismissed.

Associate:

Dated:         8 December 2009

The Appellant appeared in person.

The Second Respondent filed a submitting appearance.