FEDERAL COURT OF AUSTRALIA

 

SZFNX v Minister for Immigration and Citizenship [2010] FCA 562

Citation:		SZFNX v Minister for Immigration and Citizenship [2010] FCA 562
Appeal from:		SZFNX v Minister for Immigration [2009] FMCA 1159
Parties:		SZFNX v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File numbers:		WAD 230 of 2009
Judge:		BARKER J
Date of judgment:		8 June 2010
Catchwords:		MIGRATION – appeal from decision of Federal Magistrate – whether delay of 15 months between hearing and judgment amounts to jurisdictional error – whether delay deprived Federal Magistrate of the capacity to give proper consideration to the appellant’s case – whether delay affected capacity of Federal Magistrate to make credibility findings
Legislation:		Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 425, s 426A
Cases cited:		Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189 Greater Wollongong City Council v Cowan (1955) 93 CLR 435; [1955] HCA 16 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 Pierrot Song Pty Ltd v Lee [1999] NSWCA 474 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 SZFDE v Minister for Immigration and Citizenship [2005] FMCA 1979 SZFNX v Minister for Immigration and Citizenship & Anor (No 2) [2007] FCA 1980 SZFNX v Minister for Immigration and Citizenship & Anor (No 2) [2007] FMCA 47 SZFNX v Minister for Immigration and Citizenship & Anor (No 2) [2009] FMCA 1159 Vernon v Bosley (No 2) [1999] QB 18; [1997] 1 All ER 614
Date of hearing:	10 March 2010 and 10 May 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	175
Counsel for the Appellant:	Dr JL Cameron (pro bono)
Counsel for the First Respondent:	Ms ECJ Needham
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 230 of 2009

 

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

 

BETWEEN:	SZFNX Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent   REFUGEE REVIEW TRIBUNAL Second Respondent

 

JUDGE:	BARKER J
DATE OF ORDER:	8 JUNE 2010
WHERE MADE:	PERTH

 

THE COURT ORDERS THAT:

 

1.                  The appeal be dismissed.

2.                  The appellant to pay the first respondent’s costs to be taxed if not agreed.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 230 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

 

BETWEEN:	SZFNX Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent   REFUGEE REVIEW TRIBUNAL Second Respondent

 

JUDGE:	BARKER J
DATE:	8 JUNE 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

Issue

1                                             The primary issue on this appeal against a decision of a Federal Magistrate dismissing an application for judicial review of the appellant’s unsuccessful application for a protection visa under the Migration Act 1958 (Cth) (the Act) is whether, by reason of the delay between the hearing of the judicial review application by the Federal Magistrate and the date the Federal Magistrate handed down his judgment and reasons for judgment dismissing the judicial review application, it should be inferred that the Federal Magistrate deprived himself of the capacity to give proper consideration to the appellant’s case as he was required to do by law. 

delivery of judgment in court below

2                                             On 30 November 2009, Lucev FM dismissed the appellant’s application for judicial review of the decision of the Refugee Review Tribunal (RRT) that previously had dismissed the appellant’s application for review of the decision of the delegate of the Minister refusing to grant him a protection (Class XA) visa, which the appellant had earlier claimed on the basis that he was a refugee.

3                                             The hearing of the judicial review application in respect of the RRT’s decision took place on two dates in 2008.  First there was a hearing on 3 June 2008, at which the primary evidence of the parties was adduced and submissions made.  Subsequently, on the application of the Minister to reopen and adduce some further evidence concerning the provision of an invitation to the appellant to appear at the RRT hearing, the Federal Magistrate reopened the hearing in that regard and took evidence and submissions on 25 August 2008.

4                                             Accordingly, depending on whether one calculates the delay to judgment from 3 June 2008 or 25 August 2008, the delay is a matter of days less than 18 months, or approximately 15 and a half months.  Either way it is a lengthy period.

5                                             The proceedings concerning the appellant’s claim to refugee status in Australia, culminating  in the judicial review hearing before Lucev FM, have their own long history which it is relevant to note.

application for protection visa

6                                             The appellant is currently about 57 years of age.  He entered Australia in late August 2004 on his passport issued by the People’s Republic of China (PRC).  On 24 September 2004, his application for a protection (Class XA) visa was received by the Department of Immigration and Multicultural and Indigenous Affairs.  The application was completed in hand written block letters, although the name and signature of the appellant on it was hand written in Chinese characters.  It is clear enough that the appellant spoke only Mandarin at the time he made the initial application for a protection visa and that some person, other than himself, completed the application so far as the English language aspects of it are concerned.  That includes the “written submission” attached to it, being a typed document setting out in brief the basis of the appellant’s claim to refugee status in Australia.

7                                             In the written submission, so as far as is presently material, the appellant stated as follows:

I was a Falungong practitioner and one of the Falungong organisation in … .   Falungong is based on the traditional Chinese culture and it emphasis on truth, kindness and restraint…

The Chinese authority … outlawed Falungong all over the country, nobody will be allowed to practice Falungong.  Those who break orders will be arrested, dismissed from their employment positions and will be forced to receive re‑education in the detaining houses in the local places.

I was detained by the police for almost one month in a … detention centre, tortured by the policeman and forced to declare not to practice Falungong.  After I was released, I was informed that my company were noticed by the authorities reduced my salary.  I suffered spiritually and economically.

Policeman and police cars could be found in every Falungong practising sites, more and more people were arrested, and even those who were suspected to be Falungong followers were under strict surveillance.  I did not know what would happen to me in the future.

8                                             The application for a protection visa, both in response to the appellant’s “current residential address” in Australia and in respect of all addresses in Australia where he had lived for any period (sections 14 and 35 of the application form) stipulated one address only, namely:

160/422 Pitt Street, Sydney NSW 2000

9                                             By letter dated 29 September 2004, addressed to the appellant at 160/422 Pitt Street Sydney NSW 2000, the delegate of the Minister advised the appellant that he had been refused a protection visa because he did not satisfy the criterion that the applicant be a non‑Citizen in Australia to whom Australia has protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol.  He was, however, granted a bridging visa Class WA, with permission to work pending any review of that decision in the RRT.  The decision record of the delegate of the Minister was provided to the appellant under cover of the letter.

application for review to rrt

10                                          The letter from the Minister’s delegate was obviously received, if not by the appellant, then by some agent or person with an interest in the appellant’s application for the protection visa, because the right to seek review in the RRT was soon taken up.  An application for review signed by the appellant was received by the RRT on 1 November 2004.  One hardly needs to be a handwriting expert to express the view that, due to a number of common features, the person who completed in upper case handwriting the details of the application for review to the RRT that was lodged on 1 November 2004, is one and the same person as the person who completed the application for a protection visa. 

11                                          The application for review had attached to it a typed English language document that restated the reasons for the appellant’s claim to refugee status, with additional emphasis, as follows:

I am a common Falun Dafa practitioner.  Falun Dafa brought me a better life.  With government estimates of as many as 100,000,000 practising Falun Gong, China’s President Jiang Zemin outlawed the peaceful practice in July 1999, fearful of anything touching the hearts and minds of more citizens than the Communist Party.  I was arrested and tortured and arrested by the Chinese authorities.  I believe that I will be arrested if I returned to my home country and my fear of a risk of being is well‑founded.  Australia is a real democratic country which is also a signatory to the United Nations 1951 General Convention relating to the Status of Refugees and its 1967 Protocol.

12                                          The application for review again specified the appellant’s residential address in Australia as 160/422 Pitt Street Sydney NSW 2000.

13                                          By letter dated 2 November 2004, the RRT wrote to the appellant at 160/422 Pitt Street, Sydney NSW 2000 and acknowledged receipt of the application for review on 1 November 2004.  The letter was in the form of a standard letter dealing with a number of issues that an applicant for review would ordinarily like to know the answers to, including information about ‘when and where a hearing will take place’.  Under that heading, the letter advised that the RRT would tell the appellant the date and time of the hearing and where the hearing would be held. 

14                                          By letter dated 8 November 2004, sent to the appellant again at the 160/422 Pitt Street Sydney NSW 2000 address, the RRT invited the appellant to come to a hearing of the RRT to give oral evidence and present arguments in support of his claims on Thursday 2 December 2004 at 1pm, Level 29, Pacific Power Building, 1 Elizabeth Street, Sydney.

15                                          By letter dated 3 December 2004, sent to the appellant again at the 160/422 Pitt Street Sydney NSW 2000 address, the RRT advised that it had “considered all the material relating to your case and has made its decision”, which decision would be delivered on 22 December 2004 at 11am at the same address as previously specified.

16                                          As it transpires, neither the appellant nor any person on his behalf attended the hearing to which he had been invited on Thursday 2 December 2004, as a result of which the RRT determined the application for review in the absence of the appellant.

17                                          On 22 December 2004, the decision of the RRT dismissing the application for review was handed down and a Decision Record signed on 3 December 2004 was made available.

18                                          By letter dated 22 December 2004 to the appellant, again addressed to him at the 160/422 Pitt Street Sydney NSW 2000 address, the RRT advised the appellant that the RRT had decided that he was not entitled to a protection visa, and a copy of the decision and reasons were attached to the letter.

19                                          Each of the letters referred to in this account to this point, including that of the Minister’s delegate dated 20 September 2004, that of the RRT dated 2 November 2004, that of the RRT dated 8 November 2004, that of the RRT dated 3 December 2004 and the letter of the RRT dated 22 December 2004 (all sent to the appellant at the 160/422 Pitt Street Sydney NSW 2000 address) were sent by Registered Post.  Evidence subsequently given in the hearing before the Federal Magistrate in the decision appealed from discloses that this form of Registered Post provides for a person to sign for receipt of the letter at the time of delivery or, in the case of non‑delivery, for return to sender.

20                                          As noted above, obviously the letter sent by the Minister’s delegate by registered post to the appellant at 160/422 Pitt Street Sydney NSW 2000 dated 29 September 2004, advising the appellant of the refusal of the application for a protection visa and the availability of review in the RRT was received, because it led to the reasonably prompt lodgement of the application for review to the RRT, an application obviously completed by the same person who had completed the earlier application for a protection visa.  The appellant, as noted, signed both applications.

first application for judicial review

21                                          On 20 January 2005, just less than a month after the RRT refusal of the application for review, the applicant made an application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (in accordance with O 54B of the Federal Court Rules 1979 (Cth)) to the Federal Magistrates Court of Australia at Sydney, in which he stated that he was notified of the decision the subject of the application on 4 January 2005.  In his judicial review application, the appellant claimed:

·                    that he was entitled to a protection visa; and

·                    an order restraining the respondent Minister from removing him from Australia.

He stated as grounds of the application that:

·                    He faced a risk of being jailed if he returned to China because he belongs “to a particular social group”.

·                    He believed that his fear was “well-founded”.

The appellant personally signed the initial judicial review application.

22                                          The initial judicial review application, however, specified a new address for service of the appellant, namely:

148/422 Pitt Street Sydney NSW 2000

23                                          On the face of it, this new address in Pitt Street is in the same handwriting as appears on both the earlier application for a protection visa and application for review to the RRT.  The numerals “422” that appear, for example, on the initial judicial review application are extremely similar to those which appear in section 35 of the protection visa application and section B of the application for review to the RRT.

24                                          The initial judicial review application, however, also shows an additional residential address for the appellant, namely, 45 Simpson Street Auburn NSW 2144.  This suggests that between the time of lodgement of the application for review to the RRT on 1 November 2004 and the lodgement of the initial judicial review application on 20 January 2005, the appellant had moved his actual residential address from 160/422 Pitt Street Sydney to 45 Simpson Street Auburn.

25                                          The initial judicial review application was first listed for hearing at 2.15pm on Tuesday 8 February 2005.  However, it appears that the matter did not proceed to a substantive hearing at that point.

26                                          It appears (having regard to [13] of the decision of Lucev FM that is the subject of this appeal – SZFNX v Minister for Immigration [2009] FMCA 1159) – that an amended application signed by the appellant was subsequently filed on 27 April 2005, with amended grounds.  This application does not appear to have been advanced with any degree of expedition.  On 29 June 2006, the appellant filed submissions attached to which was a proposed further amended application.  Leave to file a further amended application dated 7 June 2006 was granted when the matter finally came on for hearing before Cameron FM on 20 October 2006.  The grounds then considered were as follows:

1.       The Tribunal failed to take all reasonable steps to bring to the applicant’s notice an invitation to the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

2.       In the circumstances of the case the applicant, by not being given a hearing, was denied procedural fairness.

27                                          It is worth interpolating at this point that, in late November 2004, the question of the validity of a decision of the RRT that might have been produced or affected by the “fraud” of another person, for example a migration agent or person who purported to be a migration agent, had been raised in other judicial review proceedings in the Federal Magistrates Court.  On 29 November 2004, the applicants in SZFDE v Minister for Immigration and Citizenship [2005] FMCA 1979 filed an application in the Federal Magistrates Court in Sydney under s 39B of the Judiciary Act for judicial review of a decision of the RRT and seeking certiorari to quash the decision and an order in the nature of mandamus and prohibition.  A single ground was expressed as follows:

The decision was affected by fraud, being the fraud of one Fahmi Hussain.

The particulars stated that Hussain represented himself to the applicants to be a solicitor and migration agent when he was not.

28                                          On 20 December 2005, Federal Magistrate Scarlet upheld the judicial review application in SZFDE, made an order in the nature of certiorari to quash the decision of the RRT and made an order in the nature of mandamus requiring the RRT to review the delegate’s decision according to law: see Minister for Immigration and Multicultural Affairs v SZFDE 154 FCR 365; [2006] FCAFC 142 at [38] – [40], per French J (SZFDE Federal Court).  In SZFDE Federal Court, by a majority (Allsop J and Graham J), the Full Court determined that the validity of the RRT’s decision was not affected by fraud.  However, French J, dissenting, considered there was jurisdictional error in the sense that the RRT had made a decision which it did not have the power to make as it did not have before it a real consent of the kind contemplated by s 425 of the Act.  The decision of the Full Federal Court was handed down on 3 October 2006.

29                                          In SZFDE v Minister for Immigration and Citizenship 232 CLR 189; [2007] HCA 35 (SZFDE High Court), the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) considered that the conduct of the purported migration agent (and solicitor) was that of a rogue and was fraudulent.  The Court held that the legislative scheme established by s 425 and s 426A of the Act was of central importance to the provision of natural justice in the conduct of applications for review by the RRT.  The actions of the rogue “stultified the operation of that scheme”.  The fraud was accordingly perpetrated on the RRT as well as on the applicants in the proceeding before the RRT.  The jurisdiction of the RRT therefore had not been exercised and writs of mandamus and certiorari were issued. The decision of the High Court was handed down on 2 August 2007.

30                                          In April 2006, at a time when the Federal Magistrate upheld the fraud grounds in SZFDE at first instance, and just before SZFDE was argued on appeal in the Full Federal Court, the appellant in these proceedings amended his initial judicial review application to raise the question of the RRT’s failure to bring the notice of invitation to the attention of the applicant.  He then put on an affidavit made 3 May 2006, in support of the amended application in which he alleged a number of things:

·                    That he did not speak, understand and/or read English.

·                    That “on 30 August 2004 I arrived in Sydney. In China I was a Falun Gong practitioner.  I fear returning to China because I was a Falun Gong practitioner.  I want (and continue to want) to remain in Australia”.

·                    Shortly afterwards “I was introduced to a person called Songtao Lu.  I explained to Mr Lu that I was a Falun Gong practitioner in China and I feared returning to China.  Mr Lu said he would help me apply for a refugee visa in Australia”.

·                    That “annexed and marked with the ‘A’ are two receipts dated 18 September 2004 and 30 September 2004.  I paid this money to Mr Lu and he gave me these receipts”.

·                    The witness then identified his signature in certain documents in a bundle of “relevant documents”.

·                    On page 2 of that bundle, as to the address “160/422 Pitt Street, Sydney”, he did not “recognise” this address.

·                    He had spent a “few weeks living in an apartment in the city.  I lived in the apartment with Songtao Lu.  I did not know the address of the apartment.  I then moved to Auburn.  I lived in Auburn for about one year.  In about June 2005 I moved to Cabramatta where I continue to live.”

·                    That information stated in the attachment to the application for a protection visa, that “I was detained by the police for almost one month in a … detention centre, tortured by the policeman and forced to declare not to practise Falungong”, was not correct and that he never gave that information to Songtao Lu.

·                    That over the next few months Mr Lu occasionally phoned him and asked him to come to his office to sign documents in relation to his refugee visa application, which he did.  Mr Lu did not tell him how the refugee application was progressing.

·                    The signatures in Chinese characters in the book of relevant documents were his.

·                    He is now aware that in December 2004 there was a hearing in the RRT but, at the time, he was not aware of the hearing. He never received a letter from the RRT telling him about it. Mr Lu never told him anything about the hearing. If he had been aware of it, he would have attended.

·                    The appellant also stated in [12] of this affidavit that if he had attended the RRT hearing in December 2004, he “would have told the Tribunal that I was a Falun Gong practitioner in China and I feared persecution if I am forced to return to China”.

31                                          The affidavit made by the appellant on 3 May 2006, was accompanied by a certificate of interpreter, by which the interpreter certified that he spoke Mandarin and English fluently and that he had read the document in Mandarin to the appellant before the appellant signed the affidavit and that the appellant indicated that he understood the affidavit.

32                                          The appellant’s initial judicial review application, as amended, came on for hearing before Federal Magistrate Cameron in Sydney on 20 October 2006.  While the proceeding seems to have been that of a self‑represented party to that point (although one obviously conducted with assistance), the appellant was represented at the hearing by Mr Ben Zipser of counsel.  The Minister, as first respondent, was also represented by counsel.

33                                          At the outset of this hearing, Mr Zipser sought leave to file in Court the proposed further amended application which had been signed by the applicant and which was attached to written submissions mentioned above.  Mr Zipser also indicated that the appellant was available for cross‑examination on his affidavit of 3 May 2006, upon which he relied.

34                                          Mr Zipser drew attention to the fact that in the affidavit the appellant made allegations against a person who was a current migration agent.  Consequently, “steps were taken to notify the migration agent of the allegations”.  Mr Zipser drew attention to the fact that a solicitor, Mr Levingston, was present in the Court that day.  Mr Zipser added:

Mr Levingston is a solicitor and registered migration agent, and on the documents that I have he is here as a representative for the migration agent.

Mr Levingston then advised the Federal Magistrate:

Your Honour, can I indicate that I have a watching brief, and so I will be present in Court to hear the allegations and advise my client in respect of those allegations, but otherwise I don’t make any appearance or seek to play any role in the proceedings.

35                                          The appellant was then cross‑examined by counsel for the Minister.  He maintained his evidence.  Counsel for the Minister it seems did not have any instructions concerning what Mr Lu, the migration agent concerned, would say about the allegations the appellant made about his conduct if he were to be called to give evidence in the proceeding.

36                                          Counsel for the Minister asked the appellant in cross‑examination when he became aware that his application for a refugee visa had been refused.  Through the interpreter, the appellant answered (Transcript, 18):

When I went to Immigration, the Mandarin speaker staff told me that you don’t have work permission.

He indicated that maybe that was in September 2004.

37                                          Submissions then ensued concerning the application of the decision in SZFDE Federal Court which had been handed down only some two weeks or so earlier on 3 October 2006.  Counsel for the appellant divided his submissions into two parts:  the ‘fraudulent agent’ issue and the ‘wrongful agent’ issue.  Counsel for the appellant noted that the migration agent had elected not to give evidence and whilst it did not prove the appellant’s case, it was a relevant factor for the Federal Magistrate to consider.  Counsel for the appellant accepted, however, that on the authority of SZFDE Federal Court, regardless of the findings of fact the Federal Magistrate might make, his client must lose the case.  Counsel for the Minister, nonetheless, submitted there was nothing to indicate that there was any sort of fraud or conduct analogous to fraud on the facts alleged.

38                                          Federal Magistrate Cameron subsequently delivered a reserved judgment wherein he dismissed the initial judicial review application: SZFNX  v Minister For Immigration & Anor [2007] FMCA 47.  A subsequent appeal to the Federal Court was heard by Besanko J who upheld the appeal: SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980.  The matter was then remitted to the Federal Magistrates Court for rehearing.

39                                          Federal Magistrate Cameron had found that it was apparent from the sequence of events that letters sent by the Department and the RRT to the Pitt Street address came to the attention of the appellant.  The Federal Magistrate noted that the appellant did not allege any fault on the part of the RRT.   It was not necessary for the Federal Magistrate to make any findings as to whether the appellant was aware of the proposed hearing of the RRT or whether, assuming he was not aware, that this came about as a result of fraud or negligence or mistake on the part of Mr Lu.  This was because, on the authorities as they then stood, it could not be said that there was jurisdictional error on the part of the RRT even in the case of fraud of the migration agent or a person who purported to act as such.

40                                          Before Besanko J, however, in SZFNX [2007] FCA 1980, which judgment was delivered on 13 December 2007, his Honour noted at [32] that the effect in SZFDE High Court was that, if an agent is fraudulent in his or her dealings with an applicant for review which results in the applicant not being heard by the RRT, then the RRT’s decision may be void, the RRT’s jurisdiction being “constructively unexercised”.  His Honour also considered that while it was not entirely clear, it would not be enough for it to be shown that an agent had acted “negligently or incorrectly”.  The agent must be shown to have acted fraudulently: see [33].  Accordingly, the giving of bad or negligent advice would be insufficient to make out the jurisdictional error. 

41                                          Besanko J considered on the information before him that the question of whether there was even an arguable case of fraud raised before Cameron FM was “finely balanced”: see [37].  In particular, Besanko J observed:

There is considerable force in the Minister’s submissions. The appellant appears to have changed his story on whether his signature appears on one of the documents. More importantly perhaps is that, on the face of it, it is difficult to discern a motive for any fraudulent dealing on the part of Mr Lue (sic). Despite these considerations, I do not think I should go so far as to conclude that on no possible view of the evidence before the Federal Magistrate could fraud be established. If the appellant’s signature was falsely placed on a relevant document and part of a statement ‘made up’, then that may go some way towards establishing fraud, although it will still be necessary for the appellant to show that the fraud (if there be fraud) has affected the process prescribed by the Act.

In these circumstances, a re‑hearing of the initial judicial review application was ordered.

42                                          It seems that some time after the hearing of the matter in the Federal Magistrates Court before Cameron FM, the appellant moved to live in Perth.  The rehearing ordered by Besanko J then proceeded before the Federal Magistrates Court in Perth.  Dr JL Cameron, the appellant’s current counsel, then accepted a direct brief on the matter to act pro bono for the appellant in the proceeding.

second judicial review application

43                                          On 8 May 2008, when the appellant was represented by Dr Cameron and no longer by persons who were apparently assisting the appellant in relation to the initial judicial review application, the appellant made a further affidavit that referred to his earlier affidavit of 3 May 2006 and made the following points in respect of it:

·                    It contained errors.

·                    The statement that he was a Falun Gong practitioner in China was not correct, rather the “authorities there suspected that I was a Falun Gong practitioner, but I became a practitioner only after I came to Australia”.

·                    What he said had happened in China and his dealings in relation to his application for a protection visa and the review application in the RRT since he had been in Australia.

·                    That the accommodation he lived in soon after his arrival in Australia was found for him by a friend, Mr Z, who had been a neighbour in China, but was living in Sydney at the time of his arrival.

·                    Mr Z had met him at the airport and that same day took him to buy a mobile phone, the account for which was paid by the appellant’s sister, who also lived in Australia at that time (and who still lives here).

44                                          From this preceding account of the facts, it is plain that the appellant claimed before Lucev FM, in relation to the decision now on appeal before this Court, that he was entitled to benefit of the High Court’s ruling in SZFDE, that the conduct of Mr Lu constituted a fraud that stultified the operation of the legislative scheme of the Act and meant that the RRT, at material times in December 2004, had not exercised its jurisdiction.

45                                          To get the benefit of such a legal outcome it plainly was incumbent upon the appellant to satisfy the Federal Magistrate of the facts he alleged, particularly the allegation that at all material times Mr Lu had prepared, submitted and generally been responsible for the conduct of the application for a protection visa and the application for review in the RRT of the decision of the Minister’s delegate refusing the application for the protection visa, when these events occurred in late 2004 and early 2005.

46                                          It might have been thought from the account of the documented facts provided above, that some things were unarguably clear, including that:

·                    At all material times in late 2004 and early 2005 the appellant did not speak or write English.

·                    Some person other than the appellant with some knowledge of the forms and procedures for seeking a protection visa and seeking review in the RRT of the refusal of the Minister’s delegate to grant such a visa, was primarily responsible for the preparation of the application for the protection visa and the application for review in the RRT that the appellant signed.

·                    Having regard to the handwriting in upper case English language on the application for a protection visa and application for review in the RRT, that the same person had prepared both applications, as well as the initial judicial review application.

·                    That on the face of it, the letter of the Minister’s delegate, sent by registered post, to the appellant, care of 160/422 Pitt Street Sydney NSW 2000, had been received by a person aware of the appellant’s application for a protection visa, because relatively soon afterwards on 1 November 2004 the application for review to the RRT  was duly lodged with the RRT.

47                                          What was unclear was the identity of the person who prepared the application for a protection visa and the subsequent application for review in the RRT (not to mention the initial judicial review application).

48                                          The appellant’s affidavit made 8 May 2008, purported to provide a detailed account of his circumstances in China and in Australia in regard to all these various matters. If the account given by the appellant were to be discounted, then the only proper inference to be drawn, given the background recounted above, would be that the appellant’s claims were unreliable and either reconstructions or untruths.

49                                          It became important then, if the Minister were to challenge the factual claims of the appellant, that he should call Mr Lu, if he existed, as a witness in the proceeding to account for his dealings, if any, with the appellant.  As it transpired, the Minister received an affidavit initially prepared by an independent legal representative for Mr Lu (Mr Levingston), which the Minister then put on in the proceeding before Lucev FM. 

the appellant’s evidence before the federal magistrate

50                                          Something of the essence of the appellant’s claims before Lucev FM has been set out above by reference to the affidavit made 8 May 2008.  However, at the hearing the appellant gave viva voce evidence and his affidavit of 8 May 2008 was only later adduced into evidence in the course of cross‑examination. 

51                                          The appellant stated in oral evidence that:

·                    Despite earlier statements to the contrary, including in his affidavit made 3 May 2006, he had never been a Falun Gong practitioner in China.

·                    Rather he had only conveyed Falun Gong practitioners to an event in Beijing.

·                    As a result, the company for which he worked suspended him for a month.

·                    He was suspected of being a Falun Gong practitioner or sympathiser.

·                    In late 1999 he had been arrested and held by the police but was released when his wife paid a bribe.  During that time, he was kept in solitary confinement and interrogated and cuffed and kicked.

·                    He then came to the view that he was under constant surveillance.

·                    Since coming to Australia he has practised Falun Gong.

·                    He is not familiar with the address of 422 Pitt Street Sydney and on the basis of inquiries made of the City of Sydney, believes that the two addresses given as 422 Pitt Street do not exist in the City’s database, although there is a building known as 420‑426 Pitt Street, Haymarket, which was recently converted to strata title units.  The highest number presently shows Unit 134.  He has seen a photograph of the building and it is not a building in which he has ever stayed.

·                    The accommodation that he did stay in when arrived in Sydney was arranged through his friend, Mr Z.  It was a rundown flat in a three storey building. He lived alone there except for two or three days “when Mr Lu stayed there”.  He then moved to Auburn and later to Cabramatta before coming to Perth.

·                    Mr Z helped him obtain a mobile phone on the day he arrived at the airport in Sydney and his sister pays the phone bill.

·                    If he had been told about the RRT hearing in December 2004, he would have attended it and he would have told the truth according to what is set out in this affidavit.

52                                          The appellant made a further affidavit on 29 May 2008, which he relied on, in which he made the following points:

·                    That when he first met Mr Lu he received from him a business card, similar to one that he produces to the Court.  He lost that card.

·                    The card produced “was obtained from Mr Lu’s office by a friend in Sydney and forwarded to me.  It is slightly different from the first card.  I recall that word “Manager” did not appear on the first card”.

·                    There is a Lu Songtao who is a registered migration agent.  He was not registered until 3 May 2005. 

·                    The appellant confirmed signing an application by an individual for fee exemption or waiver in respect of fees payable in the Federal Magistrates Court and identified his signature.  The date of the document is 20 January 2005.  He says that he paid $1000 but did not appreciate that the Court fees had been waived.  If he had been aware of that he would not have paid the $1000.

53                                          Prior to giving his evidence, the appellant had been made aware of the contents of the affidavit of Songtao Lu, made 28 May 2008, in which he stated as follows:

·                    He is a registered migration agent.

·                    He was admitted to his registration on 3 May 2005.

·                    He had read the affidavits of the appellant, made 3 May 2006 and 8 May 2008.

·                    The appellant was not his client and was not a person to whom he provided immigration assistance.

·                    He did not act for or advise the appellant in respect of an application for a protection visa or a subsequent appeal in the RRT.

·                    He did not prepare any statement or any claims made to the Minister with respect to any application made by the appellant.

·                    He had not met the appellant and did not assist him to apply for a protection visa.

·                    He did not reside with the appellant at the address nominated in his affidavit.

·                    He did not act for, nor did he assist, the appellant in respect of the making of any application to the Minister.

·                    He did not prepare any document annexed to the application.

·                    He did not prepare any receipt documents nor did he receive any monies as suggested by those receipts.

54                                          In response to the content of Mr Lu’s affidavit, the appellant said in evidence:

·                    He had only learnt two days previously that Mr Lu says he has never met the appellant.

·                    That he had met Mr Lu in the past, eight or nine times, four of these being in Mr Lu’s office.

·                    That he took “the escalator into the – to the third floor”.  This answer was given to a question from counsel for the appellant in these terms:

So could you describe to his Honour how you get to Mr Lu’s office in Chinatown.  Before you do that, can you imagine that you are standing in front of the building.  Are you describing an escalator?

·                    He recalled that the first office before you came to Mr Lu’s was a doctor’s surgery.

·                    The door was made of glass and the side of the wall was made of glass.  There was a pamphlet or advertisement sticker on the wall.  There was a small room inside with a fax machine.

·                    He went to appointments when he “was called.  I was notified by telephone”.  Mr Lu notified him by telephone.

·                    That he originally received the business card from Mr Lu when he arrived in 2004. However he had lost the card when shifting around. “When I moved to Perth, I had been given another card by my friend, which my friend took from Mr Lu’s office”.

·                    He had met Mr Lu outside the office in Chinatown on three occasions.  He had also met him “twice in my place”.  That is to say, where he then stayed.

·                    In answer to a question concerning the circumstances that Mr Lu came to the house that the appellant was staying at, the appellant answered: “In the evening”, “one or two hours”.  This was at the house where the appellant stayed for about two weeks when he first arrived in Australia.

·                    Mr Lu has an accent of South China, they spoke in Mandarin.  Mr Lu was about the same height as Dr Cameron, his counsel, and his age would have been about 35 or 36.  For the record, Dr Cameron noted his height was 5ft 10, 5ft 11.  Mr Lu was of a “big, solid build. He has normal hair”.

55                                          In cross‑examination of the appellant, the first topic covered was the appellant’s evidence concerning Mr Lu “staying” at the place he lived when he first arrived in Australia.  The appellant made it clear that he was saying that Mr Lu “came twice, but he didn’t live there”.  He was then shown the affidavit he had made on 8 May 2008.  He was then taken to [9], in which had stated:

That was an old run down flat in a three storey building.  I paid $110 per week to Mr Z … I lived alone in the house except for two to three days when Mr Lu stayed there.

He was asked whether he agreed that “Mr Lu stayed there”.  Through the interpreter the appellant said:

Sorry, I have to clarify.  Okay.  After he talked to me in an evening, I went back to my room and I am not sure if he stayed in the other room or he has left.

He then confirmed that he did not see Mr Lu out.  He was asked what made him think that Mr Lu “stayed”.  He answered that:

Okay, I didn’t see the moment that he went out of the flat.

56                                          The following exchange then occurred between counsel for the Minister and the appellant:

MS NEEDHAM:   Well, which is it, [ ... ]?  Did he only stay one to two hours or did he stay longer?

THE INTERPRETER:   Do you mean in my bedroom?

MS NEEDHAM:   I mean at the flat.

THE INTERPRETER:   He stayed in my bedroom for one or two hours and then he went to the other room but I don’t know how long he has stayed in that room.

MS NEEDHAM:   Okay.  Are you saying the flat was a two-bedroom flat?

THE INTERPRETER:   Yes.

MS NEEDHAM:   Now, when he came to the flat – I withdraw that, your Honour.  When you were living in that flat, other than Mr Lu, did anybody else stay there?

THE INTERPRETER:   No.

MS NEEDHAM:   Then what made you think Mr Lu stayed?

THE INTERPRETER:   I don’t know what happened after I moved out in two weeks.

MS NEEDHAM:   In the two weeks that you were there, [ ... ], that’s what I’m asking about.  Why did you not show Mr Lu out?

THE INTERPRETER:   He went to his room.  I don’t know how long he has stayed in that room.

MS NEEDHAM:   Okay.  You say it was his room.  What makes you think it was his room?

THE INTERPRETER:   I don’t know.  I have just arrived from China.

MS NEEDHAM:   Yes, [ ... ].  You said that the other bedroom was Mr Lu’s room.  What made you think that that room was Mr Lu’s room?

THE INTERPRETER:   I am not sure whether he has paid or not.

MS NEEDHAM:   No.  I’m not asking you whether he paid.  I’m asking you what – you’ve said that that room was Mr Lu’s room.  What was it that happened that made you think that it was Mr Lu’s room?

THE INTERPRETER:   What I paid is for my room only.

HIS HONOUR:   Madam interpreter, can you ask him whether Mr Lu ate his meals there?  Did he eat breakfast there to start with?

 

THE INTERPRETER:   Yes, yes.

HIS HONOUR:   Did he eat his lunch there, his midday meal?

THE INTERPRETER:   Yes.

HIS HONOUR:   Or his evening meal?

THE INTERPRETER:   Sometimes I leave the lunch.

HIS HONOUR:   Yes, I’m talking about Mr Lu, did Mr Lu eat his breakfast.

THE INTERPRETER:   Sorry, I missed – okay, I will ask again.

HIS HONOUR:   Yes.

THE INTERPRETER:   No, no, he doesn’t have his breakfast there, I couldn’t see him in the morning.

HIS HONOUR:   Did he sleep there?

THE INTERPRETER:   I’m not sure what time he has left so I’m not sure whether he has slept there.

MS NEEDHAM:   Did he eat dinner there?

THE INTERPRETER:   No.

MS NEEDHAM:   Did you go into the other room, the other bedroom?

THE INTERPRETER:   When he left he would have the room locked.

MS NEEDHAM:   There was a lock on the door to the other bedroom?

THE INTERPRETER:   Yes.

MS NEEDHAM:   Did you ever see Mr Lu unlock that room?

THE INTERPRETER:   When he came, he has to open that door.

MS NEEDHAM:   [ ... ], I need to clarify that, when he came to the flat he had to open that door.  Are you talking about the front door to the flat or the door to the bedroom?

THE INTERPRETER:   Bedroom.

MS NEEDHAM:   The bedroom, and you saw him unlock that?

 THE INTERPRETER:   There is a padlock and he has to use the key to open that, to unlock.

MS NEEDHAM:   Did you see Mr Lu unlock that padlock?

THE INTERPRETER:   Yes.

MS NEEDHAM:   Did you ever go into that room?

THE INTERPRETER:   No.

MS NEEDHAM:   So if I have this right, you say Mr Lu came to the flat and talked to you on each occasion in your bedroom for one to two hours.  You saw him unlock the padlock to the other bedroom but you didn’t see him leave.

THE INTERPRETER:   Slightly different order.  When he came he would unlock his room because there is no lounge room in this flat, it is very simple, and then he will go to my room, and after talking, he will go to that room.

MS NEEDHAM:   Right.  You see, [ ... ], what I’m going to be suggesting to the court is that your evidence has changed.  That you had previously said in the affidavit that Mr Lu stayed in the flat with you, that you’ve then told Mr Cameron that he stayed no longer than one to two hours, and that you’ve now changed that back again.

DR CAMERON:   Well      

HIS HONOUR:   Just wait for a moment, madam interpreter.  Yes, Dr Cameron?

DR CAMERON:   To be entirely fair to [ ... ], can we go back to what is in the affidavit.  It says:

I lived alone in the house except for two to three days when Mr Lu stayed there.

Much turns on the meaning of “stayed” and perhaps that was sloppy drafting on my part.  I understood by “stayed”, stayed overnight and it may well be that [ ... ] meant spent time there.  Now, are there different words in Mandarin for “spending time” and “staying overnight?”

HIS HONOUR:   I don’t know the answer to the last question, Dr Cameron.  Yes, Ms Needham?

MS NEEDHAM:   That might be something for re-examination, your Honour.  That is the case, isn’t it, [ ... ], that you’ve changed what you said?

THE INTERPRETER:   No, no, I didn’t.

 

MS NEEDHAM:   So how do you, [ ... ], explain the difference between your affidavit saying that Mr Lu stayed there and your evidence to Mr Cameron that he only stayed for one to two hours?

THE INTERPRETER:   He stayed in my room for one or two hours and then he went to the other room.  I’m not sure he stayed overnight or he left soon after because in the morning or in the evening he didn’t come to say, “Hi, I’m leaving, bye-bye.”  He didn’t say that at all.

57                                          Certainly the evidence in cross‑examination given by the appellant suggests that Mr Lu had access to another room in the apartment, although plainly from what he said at the end of the passage quoted, he was not suggesting that Mr Lu was living in the accommodation.

58                                          The next topic covered in cross‑examination was the evidence the appellant gave about the offices at which he said he had visited Mr Lu at the request of Mr Lu.  The appellant accepted that there are a number of migration agent offices in the area of Sydney he was describing.  He was certain though that the one that he had described was the one on the card of Mr Lu and that he had attended those offices in September 2004 and on four occasions in all.  Additionally, he had met Mr Lu on two occasions at his apartment.  He had also met him on three other occasions in Chinatown at a time when he was distributing information about Falun Gong.  Those other occasions were not arranged meetings.  The appellant also confirmed that he said there was an occasion when he went to the Department of Immigration with Mr Lu when he was applying for a bridging visa. 

59                                          The appellant agreed that he had met a number of other people in Sydney, in the Chinese community, who like him were trying to immigrate to Australia.  In the course of dealing with this evidence the appellant said that the same day when he arrived in Sydney, his friends took him out in the airport and the same day took him to Mr Lu’s office. 

60                                          He said that the business card that he had later obtained, following losing the one he had by the time he went to Perth was obtained by a Mr K, who at that stage was an Australian citizen.  He asked Mr K to obtain that card for him.

61                                          Counsel for the Minister made it clear to the appellant that she would be suggesting to the Court that the appellant had obtained a description of Mr Lu’s office from other people and that he had no knowledge of that place himself.  In response to a direct question to that effect, the appellant stated:

I actually been there, I took a train from Auburn to Central Station and then I walked to Dixon Street.  I went up to the lift to the third floor and then went – arrived at his office.

The appellant confirmed that he went to live in Auburn after his initial arrival, although he could not remember the exact date, but about four months after his arrival a friend found him a job in Cabramatta after that and that is why he then moved to Cabramatta.

62                                          The Federal Magistrate at that point asked a further question about Mr Lu’s office “in Dixon Street”.  The appellant through the interpreter responded:

No, it’s in China Town.  He’s not quite sure about Dixon, the spelling of the Dixon Street, but he went – when he go to his office he passed Dixon Street.

63                                          In re‑examination, counsel for the appellant asked him, concerning the apartment that Mr Z had initially provided for him, whether there was some kind of association between Mr Z and Mr Lu.  The appellant said that there was but he was not sure whether Mr Z owned the flat.  He confirmed that he paid rent to Mr Z and had access to one of the bedrooms only.  Another room was locked.

64                                          In relation to that part of his earlier affidavit where he had stated that “Mr Lu stayed there” on two to three days, counsel asked him whether by “stayed” he meant “stayed overnight” or “spent time there”.  The appellant responded:

I am not sure what time in the – night he left. 

That was obviously a non‑responsive answer and counsel then asked him whether there are different words in Mandarin for “stayed for a long period” and “stayed for a short period”, to which the appellant responded:

When we say ‘stayed’ that is stay could be long, could be short.  But if you particular like to say ‘stay overnight’ you have to say [foreign language] overnight.

The appellant then clarified that in his affidavit he was saying that:

He stayed in my room for a short period and then he went to the other room and I am not sure whether he has stayed overnight or not because when I get up in the morning I can see the locker there it is locked.

When further pressed about expressions in Mandarin, the appellant said that when he says “stay” in Chinese, it is usually a short period.

65                                          In relation to the topic of the appellant seeing Mr Lu on other occasions in Chinatown outside his office, the appellant indicated that he did speak with Mr Lu on one occasion.  The first time Mr Lu had said “Oh I didn’t realise you are a Falun Gong member”.  On the other occasions he saw him in Chinatown he did not talk to him.

66                                          As to the business card that he had been provided with recently, the appellant said that it was different in that the one he had before was a “vertical one and this means the long one”.

mr lu’s evidence

67                                          Mr Lu was called by the Minister to give evidence.  His affidavit made 28 May 2008, was tendered and received into evidence.  He was then further examined.  Mr Lu was first asked of his knowledge of the appellant and whether he had ever acted for him.  In answer to the question whether he had ever met the appellant, he said “I don’t know”.   As to whether he had ever acted for him, however, he answered “No”.

68                                          Mr  Lu was then asked about his registration as a migration agent.  He confirmed that he was first registered on 3 May 2005, having first made an application to be registered in July 2004.  He explained that the government had earlier “changed the law” so he had to reapply for registration and did so on 24 December 2004.  His registration then became effective from 5 May 2005.

69                                          Mr Lu indicated he had acted for another migration agent, Mr Lan Shan Gao, part time before that and in September 2004 had been working for Mr Gao.  His offices were in the Pacific Trade Building at 368 Sussex Street, Sydney.  He said he was just an office clerk and answered the telephone and such things.  He did not handle money, he did not issue receipts “at that time, no”, and he did not offer people migration assistance.

70                                          It is important to note that Mr Lu gave his evidence by video conference from Sydney, while the Federal Magistrate was sitting in Perth with counsel for the parties and the appellant.

71                                          Mr Lu was asked about his physical characteristics.  He said he was 176cm tall – about 5ft 10½ inches.  He was 34 years of age.

72                                          He said in the second half of 2004, he was living in Castlereagh Street, either 303 or 317 Castlereagh.  It was an apartment.  It was on level 28.  There were 30 or 35 floors.  He rented out two rooms.

73                                          Mr Lu said he did not live in his flat with a person with the same name as the appellant.  He said there was no locked room.

74                                          Mr Lu said he also had worked for another migration agent, Ying Ying Bau.   When he commenced operating as a registered migration agent in May 2005, he occupied the premises that Ying Ying Bau had previously occupied when he had worked for Mr Bau. 

75                                          When asked when was the first time he had heard of the appellant, Mr Lu answered:

Recently, when I received email or – fax or letter from you – from - …

76                                          Mr Lu was apparently perusing documents at this point of his evidence and counsel asked him to put the documents down for a moment and just tell the Court what he could recall.  First he was asked about Mr Levingston, who he confirmed was his solicitor.  Before he made his affidavit on 28 May 2008, he had received a fax or an email concerning the appellant.  He could not remember, however, whether he knew of the appellant in 2006. 

77                                          Mr Lu could not remember whether in 2006 he had instructed Mr Levingston to go to court with a watching brief as to what was happening in the initial judicial review proceeding involving the appellant.

78                                          When Mr Lu was asked if there were any complaints he was aware of that had been made about him to the Migration Agents Registration Authority he said, “At this moment, no, but yes, I just know that two other cases just in other – but no, this one, no”.  Questions concerning inadmissibility on grounds of relevance, amongst other things were then raised in relation to questions and answers of other complaints that may have been made against Mr Lu. 

79                                          The matter was then pursued in cross‑examination.  When asked however, whether he understood there would be another complaint to the Migration Agents Registration Authority, making similar allegations to those made by the appellant in this proceeding, he answered, “No”.

80                                          In cross‑examination, counsel for the appellant then asked and received permission from the Federal Magistrate for the appellant to stand before the camera so that he could be seen on the video conference screen in Sydney by Mr Lu.  A close up was then requested of the appellant.  Soon after seeing the appellant on the television screen in Sydney, the Federal Magistrate asked Mr Lu whether he needed to look more closely at the television screen.  Mr Lu then soon after answered:

I think – yes, I think maybe.  Yes, maybe I have – yes I met this person before.

81                                          In further cross‑examination, Mr Lu confirmed that he may have met the appellant before, but he could not remember the circumstances in which he had previously met the appellant.

82                                          He was then asked in relation to the apartment  he had in Castlereagh Street whether he also knew Mr Z.  When asked if Mr Z may have introduced the appellant to him, he replied: “I don’t think so, no”.

83                                          In relation to the premises he occupied in May 2005, Mr Lu confirmed that he had previously worked as a clerk in those same offices in around 2002 when he worked for Mr Bau.  But he had then finished with Mr Bau and worked for another migration agent.

84                                          As to the previous proceedings concerning the presence in Court of Mr Levingston on his behalf, Mr Lu said he was not aware that this was the second hearing of the appellant’s application and did not think he had instructed Mr Levingston to appear at an earlier hearing on 20 October 2006.

85                                          Mr Lu also said that he was aware that it is a serious offence for a migration agent under the Act to give migration assistance to a person and to receive money for giving that assistance if not registered. 

86                                          Mr Lu was, however, not cross‑examined at any time as to the whether the protection visa application or the RRT review application were in his handwriting. 

87                                          In re‑examination the question of Mr Levingston’s presence at the initial judicial review hearing in the Federal Magistrates Court in Sydney was canvassed with Mr Lu again.  He still said he did not instruct Mr Levingston to attend court previously.

88                                          He was also asked about the circumstances in which he may previously have met the appellant.  His answer was speculative.  He said:

Maybe when I work for Mr Lan Shan Gao or I – register, I went into the – after 3 May 2005.  But, yes, I cannot remember.  I cannot remember. 

89                                          Mr Lu also said that he did check records and could find no record of having worked for the appellant.  He added that there were many people handing out Falun Gong materials around Dixon Street.

90                                          He confirmed that his apartment in Castlereagh Street had three bedrooms and that he rented out two other bedrooms.  He said the appellant was not one of those.  Nor was Mr Z.

91                                          A little later the appellant was recalled and made available for further cross‑examination on his earlier affidavits.  This further evidence was taken on the basis that counsel for the Minister wished to contend that inconsistencies bore upon the credibility of the appellant.   It was pointed out to the appellant that in his affidavit of 3 May 2006 at [7], he said that he had lived in Auburn for about one year.  In his earlier evidence he said he had lived in Auburn for about four months.  When asked to deal with that apparent inconsistency he stated:

It should be less than one year.  I think it’s some times in winter, because I was wearing quite a lot of clothes and I think it is in March, because the boss I work for doesn’t have the visa and he has been caught, so I have to find another job, this is the time when I moved.

When pressed about how long he was in Auburn, before moving to Cabramatta, he responded (Transcript, 45):

Okay, it’s three years ago, almost three years ago, I can’t remember exactly how many months and I do keep the receipt for the rent, so I can find out and clarify it.

He then agreed it may have been that he was in Auburn over six months.

92                                          The appellant was further cross‑examined about handing out Falun Gong leaflets in Chinatown.  He said he saw Mr Lu on one occasion there, but he met him before that occasion.  He suggested that he first saw Mr Lu in Chinatown in August 2005.  He remembered that clearly “because the August 2005 I became Falun Gong member” (Transcript, 47).

93                                           The appellant was then cross‑examined on his affidavit made 8 May 2008 and the errors he said he previously made in earlier affidavits.  He said the affidavit made 3 May 2006 was with the assistance of “Mr Ben” (which was accepted by counsel to be a reference to the barrister, Mr Zipser).  He said that Mr Lu had prepared the affidavit of 3 May 2006.  As to the incorrect statement in it where he said he was a Falun Gong practitioner in China, the appellant explained how this happened, as follows (Transcript, 51):

When they interpret – start interpreting for me it was in a rush so I didn’t realise the mistake.

When it was pointed out by counsel that the error had been made twice, the appellant stated (Transcript, 52):

What I’ve done is back in ’99 those Falun Gong members went to Beijing to demonstrate and the company I worked for has an order which stop us from taking Falun Gong member to – which stop us from providing service to Falun Gong member, but I did against …

94                                          When asked whether he had told the barrister that what he says is the correct story for the purposes of the affidavit filed in relation to the initial judicial review hearing, he said “No”:

I know what you mean, but he’s not interested.  Sorry, I have to clarify.  Mr Ben asked me why you – sorry, why you didn’t mention - Mr Ben asked me why Mr Lu didn’t tell you going to RRT.

95                                          The appellant then agreed with a proposition put to him by counsel for the Minister in which counsel attempted to summarise his evidence to this point, namely:

So, from what you are saying, …, Mr Lu didn’t want to know your reason for wanting a protection visa and Mr Ben didn’t ask you about the information in the protection visa application either. 

96                                          In re‑examination the appellant has said that “Mr Ben” prepared the affidavit dated 3 May 2006.  He spent 20 to 30 minutes with him, including the time the interpreter was there with Mr Ben before the affidavit was signed.  By contrast, he spent quite a lot of time with Dr Cameron preparing his affidavit on 29 May 2008.

97                                          Upon the completion of the evidence of the appellant, counsel for the appellant and the Minister made oral closing submissions.  Counsel for the Minister made the point at the outset that the Federal Magistrate had had the benefit of hearing from Mr Lu, which, in cases such as this, is rather unusual in that the agent had come forward and given evidence.  Counsel submitted that the evidence of Mr Lu was unshaken so far as his cross‑examination and questions about alleged prior dealings with the appellant were concerned.  She stated that:

What I mean by unshaken is he acknowledged that he may have seen [the appellant] before, but stated very clearly that he had records of who he had dealt with and he had checked those records and [the appellant] was not one of the people that he had dealt with.

Counsel for the Minister submitted that more was required in any event than what had been put up to establish “fraud” for the purpose of applying the High Court’s decision in SZFDE.  Counsel for the Minister also drew attention to a number of aspects of the appellant’s evidence and apparent inconsistencies.  The question whether Mr Lu had “stayed” or had “lived” or had visited the premises where the appellant said he first lived when he arrived in Sydney was canvassed.

98                                          Counsel for the Minister made a submission that suggested that the evidence given by the appellant was not terribly convincing.  At that point (Transcript, 59), the Federal Magistrate said to Counsel for the Minister:

HIS HONOUR:            I’ve got to say to you, Ms Needham, to be fair to you, that I wasn’t particularly struck by Mr Lu.  When he wasn’t sure about something, I mean he kept on searching for the answer in the documents, I have to say.

MS NEEDHAM:   Yes, he did.

HIS HONOUR:   Which always makes one suspicious.

MS NEEDHAM:   It might also be a nervous habit, your Honour.

HIS HONOUR:   Yes and just in general terms I mean I just didn’t think that he was particularly impressive.

99                                          Counsel for the Minister also pointed out that Mr Z was nowhere to be seen and he was the person who could have given evidence as to the accommodation and who had been living there and whether Mr Lu was one of the people.

100                                       Counsel for the Minister’s closing submissions were shortly put.  Counsel for the appellant dealt with this last mentioned Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 first point and acknowledged that nothing was said to address the question of availability of Mr Z, but that his evidence could only be peripheral to the real question, “whether or not there has been a want of procedural fairness, which led to a constructive failure on the part of the Tribunal to exercise the jurisdiction conferred by the Act”.  Counsel for the appellant then dealt with the questions of law.  On this point and the question of the invitation having been issued from the RRT, in accordance with the written submissions earlier filed, counsel for the appellant submitted that the most significant aspect of Mr Lu’s evidence was that he denied any knowledge of the first hearing in the Court when Mr Levingston had apparently been present on a ‘watching brief’ on his behalf.

101                                       Counsel for the appellant also emphasised that the appellant had identified Mr Lu by his physical characteristics and had fairly accurately described him by reference to his height, his hair and his general build, as well as his accent from the southern part of China.

102                                       Before submissions were completed, the Federal Magistrate raised a question, particularly for counsel for the Minister, as to how an applicant can be invited to a hearing when the letter is sent to an address which, at least on one interpretation of the evidence, does not exist.

103                                       Counsel for the appellant raised a further question whether there was any evidence to support the fact that the letter of invitation was sent at all.

104                                       Counsel for the Minister pointed out that the various letters from the Department and the RRT in evidence had stickers suggesting the letters had been sent to the addressee at the address shown by registered mail.

105                                       Subsequent to the hearing, on 25 August 2008, the Federal Magistrate on the application of the Minister reopened the hearing.  First, the appellant was given leave to make two amendments to the application for judicial review:

·                    That the Tribunal did not give the invitation to the appellant to attend.

·                    If it was given to somebody, it was intercepted by Mr Lu and the effect of the invitation was stultified by Mr Lu’s fraudulent acts and omissions in concealing the invitation from the appellant.

106                                       Counsel for the Minister then tendered two affidavits on which the Minister relied:

·                    That of Peter John Corbould made 25 July 2008.

·                    That of Jonathan Willoughby‑Thomas made 24 July 2008.

107                                       These affidavits dealt in particular with the process undertaken by the Tribunal in relation to sending out letters of invitation by registered post and the fact that, in this case, no letters to the appellant had been returned unclaimed.

108                                       Further submissions were made concerning the amended grounds.  In essence, counsel for the Minister submitted that there was no evidence to show that Mr Lu had any association with the addresses used, either on the initial application for a protection visa or the subsequent application for review in the RRT.

109                                       Despite this additional evidence, neither party, particularly the appellant, took any steps to call Australia Post to deal with such questions as to what their records showed concerning the delivery to the Pitt Street addresses of the letters from the Department and the RRT.  Counsel for the Minister submitted it was for the appellant to prove the non‑delivery of the invitation.

110                                       Counsel for the Minister also referred to the decision of the Federal Magistrate in SZLZE v Minister for Immigration & Anor [2008] FMCA 560where an applicant had delayed for a period of years in finding out what happened to his application for a protection visa and such circumstances had found to be “recklessly indifferent” to his case and thereby could not rely on any lack of advice from the migration agent.

111                                       On 25 August 2008, the Federal Magistrate reserved his decision in the judicial review application.

decision of lucev fm

112                                       The reasons for judgment of Lucev FM are to be found in SZFNX v Minister for Immigration [2009] FMCA 1159 which was delivered on 30 November 2009.  It should be said at the outset that the reasons for judgment, although delivered after what I think should properly be classed as a period of just over 15 months, not just short of 18 months as contended for on behalf of the appellant, are comprehensive.

113                                       The reasons deal with:

·                    The agreed issue on the second judicial review application, namely, whether there was fraud on the RRT by a migration agent acting on the appellant’s behalf sufficient to vitiate the RRT’s decision.

·                    The related issue of whether the appellant was not given an invitation to the RRT hearing as required by s 425 of the Act.

·                    The procedural history of the matter, including the application for a protection visa, the application for review in the RRT, the initial judicial review application, the decision of Cameron FM, and the decision of Besanko J in the Federal Court.

·                    The re‑hearing that took place before Lucev FM on 3 June and 25 August 2008, including the circumstances in which the Minister sought reopening of the case.

·                    Evidence of the applicant at the hearing, including what he said in his affidavit of 3 May 2006, his affidavit on 8 May 2008, his affidavit of 29 May 2008 and his oral evidence at the hearing.

·                    Mr Lu’s position at the first judicial review hearing when Mr Levingston had a watching brief in the court, Mr Lu’s affidavit made 28 May 2008 and Mr Lu’s oral evidence at the hearing.

·                    The alleged fraudulent conduct of Mr Lu.

·                    The evidence analysed including the different assertions made by the appellant as to whether he was a Falun Gong practitioner in China, where he lived upon his arrival in Sydney, the 422 Pitt Street addresses, living in Auburn, the making of the protection visa application and the review application to the RRT, the receipts, the preparation of documents to the earlier hearings and the business card description.

·                    Mr Lu’s evidence of interaction or apparent dealings with the appellant.

114                                       It cannot be said that the Federal Magistrate failed to have regard to any relevant evidence given for or against the contentions put by the appellant and Mr Lu concerning their knowledge of and dealings with each other.

115                                       The Federal Magistrate then formed various conclusions on the evidence.  At [102] he stated that in assessing the evidence of the appellant and Mr Lu, the Court took account of the fact that:

·                    The appellant did not speak English and had to give his evidence through an interpreter.

·                    Mr Lu clearly spoke English as a second language.

·                    Neither was an impressive witness.

·                    Both looked distinctly uncomfortable in the witness box.

116                                       In assessing the appellant’s evidence, the Federal Magistrate particularly noted, at [103], that:

·                    The applicant was prepared to lie about his involvement with Falun Gong even when retracting other incorrect points in his evidence, and maintained that lie until shortly prior to the second hearing.

·                    There were numerous major and minor inconsistencies in relation to the major areas of the applicant’s evidence, inconsistencies which, in the Court’s view, diminished his credibility.

·                    There was a lack of detailed information concerning the alleged involvement of Mr Lu in relation to the preparation of the protection visa application and other documentation.

·                    The appellant was not able to say whether, or which of, Mr Lu or Mr Zipser carried out critical tasks in relation to the proceedings in the Tribunal, and in that respect the reliability of the appellant’s evidence identifying Mr Lu as the author of the review application must be doubted.

117                                       The Federal Magistrate, at [104], noted the failure of the appellant to call Mr Z to give evidence.  His Honour considered that the Court was entitled to infer from this failure, which was unexplained, that Mr Z’s evidence would not have assisted the appellant.  The Federal Magistrate, at [105], found that the failure to call Mr Z affected the appellant’s evidence concerning his living arrangements upon arrival in Sydney, and, in particular, the alleged interaction with and involvement of Mr Lu in relation to those living arrangements. His Honour found that:

That again diminishes the applicant’s credibility, and casts into doubt his evidence concerning Mr Lu’s alleged involvement, at about that time, with the making of the protection visa application.

118                                       The Federal Magistrate noted that there were also issues that arose in relation to Mr Lu’s evidence.  His evidence in relation to Mr Levingston’s watching brief was obviously incorrect.  The Federal Magistrate thought it could probably be explained as a mistake, “but it does raise concerns about the reliability of his evidence”.

119                                       Against that, at [106], the Federal Magistrate noted Mr Lu did concede that he had met the appellant, although in circumstances which he does not know recall, save that they were circumstances not associated with any migration advice or assistance.  His Honour noted that the admission by Mr Lu “goes favourably to Mr Lu’s credit, for if he were determined to resist the suggestion that he had been involved and assisted, a denial of ever having met the applicant would be more consistent with such an approach”.

120                                       The Federal Magistrate also took into account, at [107], whether Mr Lu’s denial of any involvement with the applicant was because of a concern that if it were found to be true by the Court that he had acted as a migration agent when he was not registered there could be difficult outcomes for him.  However, the Federal Magistrate considered there were two factors that suggested that Mr Lu did not have such a motive:

·                    His admission, after seeing the appellant on the video-link, that he had met the appellant (although not in connection with migration advice or assistance).

·                    Mr Lu’s unchallenged evidence that he did not receive and was not in a position to receive monies, or to issue receipts, prior to setting up in his own office and commencing practice as a registered migration agent in the second quarter of 2005.

121                                       The Federal Magistrate considered that Mr Lu’s evidence was more consistent, reliable and honest than that of the applicant.  On balance he preferred the evidence of Mr Lu.  The Court therefore found, as a matter of fact, that Mr Lu did not provide migration advice or assistance including by way of preparation of applications and documents.  It was therefore not him nor possible for it to have been him who failed to advise the appellant of the RRT hearing.

122                                       In the circumstances, the Federal Magistrate found, at [109], that the Court was not satisfied on the basis of the applicant’s evidence that the applicant had established fraud, either at all or to the relevant standard.

123                                       By way of completeness the Federal Magistrate added, at [113] and [114], that even if the evidence of the applicant concerning Mr Lu and his involvement were to be accepted the Court would nevertheless have found there was no fraud on the part of Mr Lu.

124                                       Finally, the Court found there was no evidence that the hearing invitation letter of the RRT was ever received by Mr Lu or that Mr Lu misled or misinformed the RRT.

125                                       The Federal Magistrate also found or at least suggested, at [117], that the applicant here was, taking his case at its highest, “substantially the author of his own misfortune”: SZLZE, at [17].

126                                       So far as receipt of the invitation letter itself was concerned, the Federal Magistrate accepted, at [125], that the unchallenged evidence of the District Registrar of the RRT made it clear that the letter was sent in accordance with the statutory requirements.

127                                       On the face of the reasons for judgment, the Federal Magistrate gave close consideration to all of the evidence he received including that of the applicant.  In the final analysis, for the reasons he explained, he was not satisfied by the evidence of the applicant that the person with whom the appellant had dealings in a migration agent context in late 2004 was Mr Lu, as the applicant had alleged. 

128                                       Counsel for the appellant on the appeal in this Court expresses some incredulity that the Federal Magistrate should have come to the conclusion that he did.  Counsel contends the Federal Magistrate’s findings are tantamount to a finding that the appellant had conspired with others to present an elaborate story.  However, it must be said at once that the findings made by the Federal Magistrate were, on the face of it, open to him. 

the grounds of appeal

129                                       The grounds of appeal set out in the notice of appeal are narrative in nature.  In short, they contend that the delay between hearing and judgment resulted in the trial judge failing to use or clearly misusing the advantage that he had as trial judge in:

·                    Properly considering and assessing the credibility of the appellant and the reliability of his evidence.

·                    Properly considering the credit of the witness, Mr Lu, and the reliability of his evidence.

130                                       Ground three of the grounds is perhaps less a ground and more of a submission, in  that the notice contends that:

His Honour could not in the circumstances have had a clear recollection or impression or demeanour of the applicant/appellant and/or the first respondent’s witness, Lu Songtao, by the time he came to deliver his judgments some eighteen months after seeing and hearing the witnesses give their evidence.

131                                       In development of that point, or perhaps as a separate ground of appeal, ground four of the notice of appeal states that his Honour found that:

·                    The witness Mr Lu was an honest witness when there was no or insufficient evidence to support that finding.

·                    The appellant had lied when there was no or insufficient evidence to support that finding.

·                    The RRT had invited the appellant to a hearing notwithstanding that the respondents had failed to provide evidence in the form of the receipt of a registered letter addressed to the appellant.

·                    There was no fraud on the part of Mr Lu, when there was ample evidence to support a finding of fraud sufficient to stultify the processes of the RRT in hearing the appellant’s application to the RRT.

consideration

132                                       In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 (NAIS), the High Court of Australia by a majority held that a decision of the RRT was affected by jurisdictional error by reason of the delay of the Tribunal in handing down a decision following the hearing of a proceeding before it.  The Tribunal had held oral hearings on 6 May 1998 and 19 December 2001.  On 14 January 2003, the Tribunal handed down its decision to affirm the decision of the delegate of the Minister to refuse to grant protection visas.  The Tribunal did not accept as credible certain claims made and evidence given by the applicants.  In proceedings for judicial review of the Tribunal’s decision, the applicants submitted that the delay in determining the review involved a denial of procedural fairness or a failure of the Tribunal to perform its statutory functions.  In the case now before this Court, the same claims of jurisdictional error are made by the appellant in respect of the decision of the Federal Magistrate.

133                                       In NAIS, Gleeson CJ, at [5], remarked that undue delay in decision‑making, whether by courts or by administrative bodies, is always to be deplored.  However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay.  The Chief Justice then added:

The circumstances in which delay, of itself, will vitiate proceedings, or a

decision, are rare.

134                                       The Chief Justice, at [6], then further observed that the context in which delay occurs will affect any legal consequences that may flow.  At [7], the Chief  Justice noted that there may be some circumstances in which delay has had a direct and demonstrable effect on the outcome of a proceeding.  On the other hand, there may be cases where it is difficult or even impossible to know the consequences of delay.  The Chief Justice noted that in context of NAIS what was said to be unfair was that the Tribunal made demeanour‑based findings against the appellants in circumstances where four and a half years elapsed between the observation of the demeanour and the making of the findings (the second hearing of 19 December 2001 was convened for only a limited purpose).  The Chief Justice, at [8], noted that some of the findings of the Tribunal adverse to the credit of the appellants were based not on demeanour but on their own admissions.  The Chief Justice, at [9], noted that because the Tribunal’s reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence “it can never be known how that assessment was in fact affected by the delay”.  The Chief Justice added however that what must be kept in mind is that the question concerns the “fairness of the procedure” that was followed.  It was an inquisitorial procedure that in the circumstances of the case depended to a significant extent upon the Tribunal’s assessment of the sincerity and reliability of the appellants.  That is one of the reasons they were entitled to and were given a “hearing”.

135                                       The Chief Justice, at [10], further noted that the appellants did not have to demonstrate that the Tribunal’s assessment of them probably would have been more favourable if made reasonably promptly.  What they had to demonstrate was that the procedure was flawed; and flawed in a manner that was likely to have affected the Tribunal’s capacity to make a proper assessment of their sincerity and reliability.  The Chief Justice then stated, at [10], that if the Tribunal by its unreasonable delay “created a real and substantial risk” that its own capacity for competent evaluation was diminished, it was not fair that the appellants should bear that risk.  The Chief Justice added that the delay on the part of the Tribunal in that case was so “extreme” that in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired.  It followed they did not have a fair hearing.

136                                       Kirby J, in coming to a similar conclusion to that of the Chief Justice, at [84], explained that one of the reasons why delay in reaching and providing a decision may not, of itself, entitle a party to relief is the recognition of the infinite variety of cases and the differing powers and capacities of those who decide them.  At [85], his Honour noted that

The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, whilst regrettable, might not affect the acceptability or validity of what has been done.

137                                       At [87], Kirby J noted an additional factor concerned with judicial delay that is equally applicable to decision-making by members of quasi-judicial tribunals.  Extensive delay may sometimes tempt (or appear to tempt) the decision‑maker to take the path of easy resolution, as his Honour put it.  His Honour noted the increasing pressure, which prolonged delay occasions, to publish a decision.  That pressure will bear upon the decision‑maker as time passes, leading to the possibility that pressure could well unconsciously affect the process of decision‑making and the process for giving reasons for decision.

138                                       Kirby J, at [88], said that where there is a possibility that the foregoing might have occurred, it is incumbent on a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance.  His Honour suggested that where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments. Where there is lengthy delay in the provision of a reasoned decision, whether by a judge or a tribunal, it may not be enough for the decision-maker simply to announce conclusions on credibility. It may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked. That it has not been would, in a timely provision of the decision, more readily be assumed.

139                                       In relation to the delay before decision of the RRT in question, Kirby J, at [102], considered it to have been “materially excessive”.  On the face of things, he held, it deprived the appellants of a “decision” of the type required by the legislation.  It was reached by a process that was not procedurally fair.  Accordingly, it was flawed by jurisdictional error. 

140                                       Callinan and Heydon JJ, in a joint judgment, at [167], agreed that delay of itself may undermine the basis for a judgment that requires the weighing of claims and facts.  At [168], their Honours found that it was not possible to say that the Tribunal’s decision, depending so much as it did on the credibility of the appellants who gave oral evidence, was made fairly.

141                                       Their Honours, at [172], emphasised that unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. They added that failure by the Tribunal to consider a case can arise not only from obstruction by the Tribunal of its presentation but also from “self-disablement” from giving consideration to that presentation by permitting bias to affect its mind.  Another way in which the Tribunal can disable itself arises where it permits so much time to pass that it can no longer assess the evidence offered.  Their Honours considered that is what happened in this case.  Ultimately, at [172], their Honours considered that a finding to that effect ought to be made because it could be “inferred from the delay” that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to do so, and there was no contrary evidence.

142                                       Gummow J, who dissented in the result stated, at [55], that excessive delay of itself does not prove a breach of the rules of natural justice. The question is whether it is to be inferred that the delay in the particular proceeding has denied to an interested party the opportunity to present its case.

143                                       His Honour concurred with the view that there is nothing which requires one to reach one conclusion in preference to another as to what consequences were likely to have flowed from the delay in that case. 

144                                       Hayne J also dissented, noting that the majority of the Court had reached the opposite conclusion to him.  His Honour considered that it was not possible to say when or how the Tribunal made the assessment it did of the evidence the appellants had given and it could not be said that the Tribunal did not receive the evidence they gave in such a way that their evidence could fairly be assessed.  Accordingly, it was not demonstrated that there was any breach of the relevant power of the Tribunal.

145                                       Hayne J, at [136], also observed that that there was a “risk” that the Tribunal’s capacity was impaired. He observed however that the appellants did not demonstrate that the risk had come to pass.

146                                       In my view, the decision in NAIS demonstrates that there may be rare cases where the delay between hearing and delivery of a decision and the reasons for decision are so great that a court will infer that the primary decision‑making function (whether by a court or administrative tribunal) has not been performed according to the relevant process.  The majority judges in NAIS inferred that there was, as the Chief Justice put it, a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired.  Kirby J said, at [102], that the decision was “presumptively flawed” by jurisdictional error.  Callinan and Heydon JJ, at [172], said that it could be “inferred from the delay” that the Tribunal had deprived itself of the capacity to analyse the oral evidence of the appellants. 

147                                       Some cases, such as Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189 (Expectation) referred to in NAIS,disclose that where a court on appeal can be shown that delay has led to a material error or omission in the fact finding process of the court below, then it will more readily find that delay has had a material effect on the decision‑making process and render the decision one reached not in accordance with the required statutory process.  In such a case, the risk has come to pass, in the sense referred to by Hayne J in NAIS.

148                                       In this case, as I have mentioned above, the reasons for decisions of the Federal Magistrate are comprehensive.  They deal with every relevant issue.  No issue raised by the parties is omitted from consideration.  All the material evidence is recounted and analysed.  There is nothing in the reasoning process to suggest that the Magistrate has not carefully sifted through the evidence, weighed the competing issues bearing on the credibility of Mr Lu and the appellant and arrived at a conclusion open to the Court.  This is not a case, therefore, where a party can point to errors or omission in the reasoning process of the decision challenged in order to invite the conclusion that delay must have had an effect on the reasoning process such as to invalidate it; that a risk of impairment to decide the case properly and fairly has come to pass.

149                                       What we are left with in this case, then, is a submission that a delay of just over 15 months between the last hearing day and the handing down of the decision, has rendered the reasoning process suspect, particularly in circumstances where the outcome of the case crucially revolves around whether or not the appellant or Mr Lu, the migration agent, is to be accepted as the more credible witness.  On behalf of the appellant, counsel submits that the Court should simply accept that a 15 month period in circumstances such as these is simply too long a period between hearing and decision for the Court to be satisfied that the Federal Magistrate has not disabled himself from making a proper assessment of the critical credibility issues. 

150                                       For my part, in the end, I am simply not satisfied that the appellant has made out this argument.  There is no doubt that a delay of 15 months is a long delay.  All courts, including the Federal Magistrates Court, are encouraged to bring down decisions in a timely period following hearing.  Undoubtedly, as the judgments in NAIS explain, there are a range of circumstances, not the least of which might be the workload of individual judicial officers, that explain why some decisions take longer to be delivered than parties might expect or would prefer.  Ordinarily, delay of itself is not sufficient to invalidate an impugned decision.  As NAIS explains, there may however be circumstances from which a court will be prepared to infer invalidity on the basis that, in effect, a decision‑maker (judicial or otherwise) has disabled himself or herself from properly considering the relevant evidence in order to arrive at a decision.

151                                       In this case, I do not consider that there are circumstances from which the Court can properly infer that the Federal Magistrate disabled himself from properly being able to consider and assess the evidence, particularly the evidence of the appellant and Mr Lu in relation to the critical finding that he needed to make concerning the credibility of these witnesses.  The transcript of the hearing before the Federal Magistrate shows that in the course of closing submissions, the Federal Magistrate made comments on the evidence of the critical witnesses.  No doubt in reviewing the evidence before handing down his decision, the Federal Magistrate would have given consideration to the transcript and some of the early evaluations he made therein of that evidence.  The reasons for decision betray a very careful consideration of all of the evidence, as I have explained. 

152                                       As to the appellant’s particular complaint that the Federal Magistrate erred in finding that the witness Mr Lu was an honest witness, there was ample evidence to enable the Federal Magistrate to make a finding one way or the other.  It is not now open to this Court, on appeal, to second‑guess the Federal Magistrate.  There is nothing so inherently improbable having regard to the competing evidence in such finding as to invalidate it. 

153                                       As to the appellant’s further argument that the Federal Magistrate found that the appellant had lied, again, as I have explained above, such a finding was open to the Federal Magistrate if he were to favour the evidence of Mr Lu, rather than the appellant.  As demonstrated in the Federal Magistrate’s reasons for decisions, there were a range of inconsistencies in the appellant’s evidence which tended to undermine his credibility.

154                                       Additionally, the Federal Magistrate’s finding that the appellant had been invited to a hearing of the Tribunal in accordance with the provisions of the Act are, having regard to the findings of fact of the Federal Magistrate that Mr Lu was not involved as a migration agent (registered or not), such that the attempt to impugne the validity of this finding must fail. 

155                                       Similarly, the complaint that the Federal Magistrate found that there was no fraud on the part of Mr Lu which was not supported by the evidence also must necessarily fail. 

156                                       This is a case where, in the result, the appellant expresses dismay that, on the evidence heard by the Federal Magistrate, the Federal Magistrate should have come to the view that the evidence of the appellant could not be relied upon.  The appellant contends that this dismay can only be explained by the fact that the Federal Magistrate took some 15 months to come to his decision and publish his reasons for it.  However, I am not satisfied that there is anything in the circumstances of this case that warrants such dismay.  There is nothing raised from which it can be said that obviously the Magistrate had forgotten something, or his reasons concerning credibility of the witnesses must be considered tainted by reason of delay. 

157                                       For these reasons I would dismiss the appeal.

APPLICATIONS TO AMEND NOTICE OF APPEAL AND REOPEN CASE

158                                      By notice of motion, filed 23 April 2010, following the hearing of this appeal and while the decision was reserved, the appellant applied for leave to reopen his case, an order of the Court “appointing an expert document examiner to assist the Court in determining whether Lu Songtao provided immigration assistance to the appellant by the preparation of documents provided to the respondents and filed in the Federal Magistrates Court” and leave to amend his notice of appeal by adding a new ground, in the following terms:

The first respondent failed to reveal to the appellant/applicant that in judicial review proceedings similar complaints had been made against the first respondent’s witness Lu Songtao in relation to protection visa applications and applications for review made by him for other clients, and by failing to reveal the complaints thereby deprived the Appellant/Applicant of the opportunity of cross-examining Lu Songtao in relation to those matters.

159                                      On 10 May 2010, following consideration of the appellant’s written submission and the oral submissions of the parties, I dismissed the application to reopen and associated orders and also refused leave to amend the notice of appeal.  I indicated I would publish reasons for doing so later.  These are those reasons.

160                                      In his written submissions, counsel for the appellant says that these applications arise out of [60] – [63] of the appellant’s outline of submissions dated 4 March 2009 in the appeal under the heading “Similar complaints made against Mr Lu”.  Counsel states that it was “anticipated at the hearing that such an application might be made”.

161                                      There is in my view some doubt about the extent to which the Court or the first respondent understood that such an application might be made.  Indeed, counsel for the Minister submits that so far as the proposal to amend grounds of appeal is concerned, the appellant was offered the opportunity to amend the grounds of appeal at the hearing and did not take it up.

162                                      The transcript discloses that the question was raised by counsel for the appellant during the course of the hearing of the appeal as to what information the first respondent had concerning other complaints concerning the migration agent.  That was an issue that counsel for the appellant was already aware of and made submissions about. 

163                                      In the transcript of the hearing of the appeal on 10 March 2010, at page 44, counsel for the appellant made reference to the fact that there were other reported cases in which former clients had claimed that Mr Lu gave immigration assistance, acted as their representative and failed to notify them of the hearing invitations.  I asked counsel whether that evidence was put to Mr Lu in cross‑examination in the court below.  Counsel indicated that it had not been because it was then assumed that Mr Lu was a “clean skin”.  I asked counsel what I was to do with that information in this proceeding given that there hadn’t been an earlier application in that proceeding to reopen.  Counsel responded that it was not in his submission necessary to reopen, but in fairness they are matters that should have been drawn to the attention of counsel at the time.  When counsel pressed the issue in relation to one of the cases to which he referred, I asked him what I was to do with all of this as I was sitting on an appeal.  After consideration, at transcript page 45, counsel responded “Yes, I accept your Honour’s point. I won’t take that further”.

164                                      However, I did subsequently raise with counsel for the Minister whether the Minister had given any consideration as a model litigant to whether or not there was any information held by the Minister that might bear upon the forensic issues concerning the authorship of the appellant’s protection visa application and review application in the RRT.  Counsel for the Minister later addressed the decisions involving Mr Lu to which counsel for the appellant made reference and also to the model litigant issues.  Nothing further then developed.

165                                      In these circumstances, it seems to me that it is not open to the appellant now, well after the hearing of the appeal, to raise this additional ground of appeal that goes to the very issue counsel for the appellant did not take during the appeal.

166                                      In any event, I doubt there is any merit in the proposed ground.  While counsel for the appellant relied on Vernon v Bosley (No 2) [1998] QB 18; [1997] 1 All ER 614 to support the ground, I do not consider that that case materially advances the situation here.  In that case, before final orders were issued by the English Court of Appeal, the defendant/appellant received from an anonymous sender copies of a Family Court judgment that materially touched on the question determined by the trial judge that the plaintiff/respondent had suffered from a psychiatric injury as opposed to a grief reaction when he witnessed unsuccessful attempts to rescue his two children from a motor vehicle.  The Family Court judgment showed that the plaintiff/respondent’s psychiatric health had dramatically improved since 1993, which rather conflicted with the judgment the subject of the appeal, which was given in January 1995.  The defendant/appellant applied to the Court of Appeal for the appeal to be relisted for rehearing and for production of relevant reports that were relied on in the Family Court judgment.  The Court of Appeal allowed the application, received additional evidence and altered the quantum of damages.  In doing so, the Court emphasised the duty of litigants not to mislead the Court or an opponent.  In the present case, the appellant submits that the failure of the Minister’s counsel to draw to the attention of the appellant and his counsel in the hearing before the Federal Magistrate the fact that “similar claims had been made” against Mr Lu raises a similar issue.

167                                      In Pierrot Song Pty Ltd v Jong Sang Lee [1999] NSWCA 474 the New South Wales Court of Appeal in the course of dismissing an appeal had regard to the rules governing the admission of fresh evidence in matters occurring after trial and referred to Vernon v Bosley (No 2) and other cases.  Hodgson CJ in Eq, with whom Priestley JA and Giles JA agreed, at [38], accepted that if a later statement or later evidence by a crucial witness “unequivocally contradicts evidence given by that witness” the acceptance of which was significant in a judge’s decision, and if that later statement or evidence is made in circumstances such as it raises a serious question about the evidence accepted by the trial judge, there would be a strong case for the admission of that evidence on appeal and for allowing the appeal and ordering a new trial.  As it transpired, in that case, the Court of Appeal did not consider later statements to be unequivocally inconsistent with relevant evidence.

168                                      The difficulty with the appellant’s submission is of a similar nature here.  None of the cases concerning Mr Lu to which counsel for the appellant refers, involve a “similar” issue to that in issue here.  There is no contradictory evidence, let alone any “unequivocally contradictory evidence”, that suggests some injustice would follow from the appellant not being able to explore those cases in cross‑examination with Mr Lu.  There is no document or statement attributable to Mr Lu, for example using the postal address that was used on the appellant’s applications, that contains information obviously inconsistent with Mr Lu’s evidence before Lucev FM.  There are no obvious similarities between applications apparently filled out by Mr Lu – filed on behalf of the Minister in relation to the application to reopen – and those filed on behalf of the appellant by the person assisting him at the outset.  In short, the appellant has not demonstrated that there has been a failure on the part of the Minister to disclose materials which contradict the evidence of Mr Lu (or even might be considered to give rise to some legitimate line of inquiry that might have enabled the appellant to have better contradicted Mr Lu in the proceeding before the Federal Magistrate).

169                                      It is also clear that the proposed ground is not merely intended to cover evidence currently before the Court but is intended to overlap with the proposal to reopen the case so that an expert document examiner can be appointed by the Court to deal with the question whether Mr Lu is in fact a person who provided immigration assistance to the appellant.

170                                      So far as the application to reopen is concerned, while the Court no doubt has the power to reopen an appeal, one can ordinarily expect that it might be to raise a ground of appeal that was not previously raised either on the appeal or possibly in the proceedings from which the appeal emanates.  In a case where a matter has not been argued at trial, one would not expect the application to reopen on the issue in the appeal could possibly succeed in the absence of a compelling case that suggests injustice will follow if the application is refused.

171                                      Indeed, in Greater Wollongong City Council v Cowan (1955) 93 CLR 435; [1955] HCA 16, at 444, Dixon CJ with whom Williams, Webb, Kitto and Taylor JJ agreed, stated that, if cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error, and, if the cases of surprise, malpractice or fraud are put to one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed “without some insistent demand of justice”.  The Chief Justice there noted that the discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial “unless certain well‑known conditions are fulfilled”.  Those well‑known conditions are that it must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would produced, it must have been so highly likely so as to make it unreasonable to suppose the contrary.  Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.

172                                      Obviously, as Chief Justice Dixon explained, there may be different rules in the interests of justice, in cases of “surprise, malpractice or fraud”.  Similarly, if there has been “misdirection, misreception of evidence, wrongful rejection of evidence or other error”.  In this case, those exceptional circumstances do not arise, nor is there any fresh evidence.

173                                      What the appellant seeks to do here is to have a further opportunity to gather evidence that could have been obtained for the purpose of the judicial review proceeding before the Federal Magistrate concerning the issue whether the handwriting on the protection visa application and review application was that of Mr Lu, as alleged by the appellant.  The time for gathering such evidence in support of the claims made by the appellant has long since passed.  As soon as the appellant became aware that the Minister intended to rely upon the affidavit of Mr Lu in the proceeding below, in which he denied any knowledge of the appellant, the question of authorship of the applications in question must have been raised in the mind of the appellant and his counsel.  It was open at all material times, including during the conduct of the judicial review application before the Federal Magistrate, for the appellant to have applied for an adjournment of the proceedings in order to pursue relevant lines of investigation.  In my view, there is nothing that presently constitutes fresh evidence or other evidence of surprise, malpractice or fraud that can support the application to reopen the case or for the Court to seek the assistance of a document examiner.

174                                      In my view, the obligations cast upon the Minister as a model litigant would oblige the Minister to consider the possibility that the migration agent in question was indeed the author of the applications mentioned concerning the appellant.  I am assured by counsel for the Minister, on the hearing of the application to reopen, that the advisers to the Minister have given close consideration to the issues and do not consider that there are any grounds for the Minister to himself appoint a document examiner in order to fulfil those obligations as a model litigant.  In all of these circumstances, I am not satisfied that leave to reopen should be granted for the stated purpose.

175                                      The essential claim of the appellant is that if he had more information made available to him concerning migration applications that Mr Lu may have been involved in and had available to him a document examiner, he might be able to produce more evidence to make out the case that he failed to make out before the Federal Magistrate, that Mr Lu was the author of the protection visa application and the review application in the RRT.

order

1.                  The appeal be dismissed with costs.

 

I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:         8 June 2010