FEDERAL COURT OF AUSTRALIA

SZVDC v Minister for Immigration and Border Protection [2016] FCA 1382

ORDERS

THE COURT ORDERS THAT:

1.    The application for review be dismissed.

2.    The applicant pay the respondents’ costs of the application as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This proceeding is brought by an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Federal Circuit Court of Australia delivered on 3 September 2015 to refuse an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth). The extension of time application was made in order to enable the applicant to bring an application in the Federal Circuit Court for review of a decision of the second respondent, the Administrative Appeals Tribunal (in fact, the former Refugee Review Tribunal at the time of the decision in this case).

2    The application had to be brought under s 39B because that is the only way in which this Court has any jurisdiction to entertain this application at all, having regard to the limitations on this Court’s jurisdiction in migration matters contained in s 476A of the Migration Act: see Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at 56-9 [2]-[11], especially the last sentence in [9]; see also SZTES v Minister for Immigration and Border Protection [2015] FCA 719, upheld on appeal: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158.

3    Because of the strictly limited nature of the application before this Court, its success depends upon the applicant being able to demonstrate jurisdictional error on the part of the primary judge; it will not suffice to demonstrate any jurisdictional error on the part of the Tribunal as may be sufficient for an appeal: Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 at [3]; SZTES [2015] FCAFC 158 at [50].

4    For the reasons that follow, I not satisfied that the primary judge fell into jurisdictional error in refusing the extension of time application. This s 39B application must therefore be dismissed with costs.

Background

5    On 5 July 2007, the applicant, a citizen of Egypt, arrived in Australia on a student visa. Over five years later, on 13 August 2012, he applied for a protection visa. That application was supported by a statutory declaration and translations of documents comprising a purported police report, a purported “patients receiving ticket” relating to his brother’s medical treatment and a purported death certificate relating to his father.

6    The applicant claimed that he supported the Egyptian President and feared that he would be killed by the President’s political opponents. He claimed that his father had been killed and his brother shot by political opponents of the President.

Before the delegate

7    On 3 January 2013, the applicant attended an interview with a delegate of the Minister (the first respondent in these proceedings). During that interview, the applicant indicated that his mother had the original of his father’s death certificate and that he would provide it to the delegate for assessment. On 8 February 2013, the applicant’s representative and authorised recipient, Mr Graham Scarratt, advised the Minister’s Department that the applicant was unable to get this further evidence, and asked that the delegate proceed without it.

8    On about 1 May 2013, the Department received an anonymous “dob-in” by telephone, stating, amongst other things, that the applicant had supplied a false death certificate to the Department, that the applicant’s father was still alive, and that the applicant had also lied about his brother being shot. The anonymous caller supplied telephone numbers said to be for the applicant’s father in Egypt.

9    On about 30 May 2013, at the request of the Minister’s Department, a “Locally Engaged Integrity Officer” at the Australian Embassy, Immigration and Citizenship, Cairo, made a telephone call during which it was said that a conversation was had with the applicant’s father. If that conversation did take place, and it was with the applicant’s father, it necessarily entailed verifying that the father was still alive.

10    On 14 June 2013, the Department wrote to the applicant via his representative, asking him to comment on the information received by the Department which indicated that he had fabricated his claims that his father was dead and that his brother had been shot, and also that he had submitted a false death certificate for his father. On 26 June 2013, the applicant responded via his representative stating that the “immigration department” had spoken to his uncle rather than his father when they called his house, and that his father was indeed dead. The applicant was therefore able to address the issue of his assertion that his father was still alive. The applicant’s factual case on this issue was not that the call was not made, or that a conversation did not take place. Nothing apparently turned on the call being made, or on the information which gave rise to that call.

11    The documents recording that “dob-in” call and what was done with that information and other related information were not before the Tribunal, being the subject of a certificate under s 438(1)(b) of the Migration Act. The certificate was annexed to an affidavit read in these proceedings because it was not before the primary judge and was brought to the Court’s attention by the Minister as a model litigant. I was informed by the solicitor for the Minister that all of the documents referred to in the s 438(1)(b) certificate pertaining to the issue of the applicant’s father still being alive were included in the Court Book before the primary judge. I have checked for myself and that appears to be correct in that the original “dob in” report, the request to check as to whether the applicant’s father is still alive and the email reporting on that check are all reproduced, being the sources of the information in the preceding paragraph.

12    It follows that there does not appear to be any factual or legal issue in these proceedings arising from the s 438(1)(b) certificate and the relevant documents to which it partly relates not being before the Tribunal. Further, the issue that arose in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 does not seem to arise in this case legally either, because this application does not have anything to do with any jurisdictional error on the part of the Tribunal, and in any event, as already noted, the underlying information concerning a telephone call being made was not apparently in dispute. For the same reasons, this case is similarly not affected by the pending appeal to the Full Court in Minister for Immigration and Border Protection v Avtar Singh & Anor, being an appeal by the Minister from Singh v Minister for Immigration & Anor [2016] FCCA 2464 to address the certificate issue raised in MZAFZ. The issue covered by the relevant s 438(1)(b) certificate documents was able to be addressed by the applicant in any event.

13    On 2 July 2013, the delegate refused to grant the applicant a protection visa. In reaching that decision, the delegate had serious concerns about the credibility of the applicant’s claims. It appeared to the delegate that the applicant had exaggerated or contrived details about his father’s death to support his protection visa application.

Before the Tribunal

14    On 6 August 2013, the applicant applied for a review of the delegate’s decision by the Tribunal. The applicant again nominated Mr Scarratt as his representative and authorised recipient. The application for review attached, amongst other things, a copy of the delegate’s decision record of 2 July 2013.

15    On 3 December 2013, the Tribunal wrote to Mr Scarratt, inviting the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision of the delegate under review. The letter enclosed a letter to the applicant, also dated 3 December 2013, given to Mr Scarratt as the authorised recipient. That enclosed letter addressed to the applicant was an invitation to him to appear before the Tribunal. The letter advised that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone.

16    The Tribunal invited the applicant to a hearing to take place on 15 January 2014. On 13 January 2014, the applicant called the Tribunal to advise that he was unwell and subsequently provided a medical certificate. The Tribunal agreed to postpone the hearing until 30 January 2014. The applicant provided a response dated 21 January 2014 that he would attend, signed by Mr Scarratt.

17    On 15 January 2014, Mr Issam (Sam) Issa of Firmstone Associates, Solicitors & Migration Agents, sent a letter to the Tribunal which enclosed:

(1)    a completed appointment of representative form nominating Mr Issa as the applicant’s authorised recipient; and

(2)    a signed authority from the applicant which stated (verbatim):

“I, [applicant’s name], authorise and direct my solicitor Sam Issa to request a decision to be made on the papers before the Tribunal”.

18    On 20 January 2014, the Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa. Because the applicant had declined the opportunity to attend the hearing, the Tribunal was unable to discuss with the applicant the significant credibility issues raised in the delegate’s decision record. The Tribunal specifically noted that it had been unable to explore with the applicant the evidence that his father was still alive and the applicant’s claim that this was not so because it was his uncle and not his father who spoke to the Locally Engaged Integrity Officer.

19    Based on the evidence that was before it, the Tribunal was unable to be satisfied that the applicant’s father was in fact dead or that his brother had in fact been attacked and injured. That necessarily meant that the Tribunal could not be satisfied of that death or that injury being due to political activities and therefore that this was a Convention reason for any well-founded fear of persecution. The Tribunal was therefore not able to be satisfied that there was a real risk that the applicant would face serious harm due to his political opinion. Such a conclusion had been effectively foreshadowed by the letter sent to the applicant via his then representative and authorised recipient, Mr Scarratt, dated 3 December 2013.

Before the Federal Circuit Court

20    On 23 September 2014, the applicant filed an application for judicial review in the Federal Circuit Court. Such an application was required to be filed within 35 days of the date of the Tribunal’s decision: s 477(1), Migration Act. The applicant therefore required, and sought, an extension of time under s 477(2) of the Migration Act to bring his application 246 days after the Tribunal’s decision and 211 days after the statutory deadline.

21    Before the Federal Circuit Court the applicant relied upon one ground of review with three particulars as follows (text and formatting per original):

1.    The Tribunal denied the Applicant procedural fairness by failing to the Applicant adverse evidence which led the Tribunal to make an adverse credibility finding.

Particulars

i)    The Tribunal made a number of adverse credibility finding without properly putting its concerns to the Applicant or properly putting to the Applicant the implications of such concerns.

ii)    Although the Applicant elected not to attend the oral hearing, the Tribunal failed in its duty to put the adverse evidence referred to in paragraph 25 of decision record for comment.

iii)    The Tribunal applied the same reasonings and findings of the Delegate of the Minister without making further enquiries or making its own findings.

22    On 6 August 2015, the primary judge heard the application for an extension of time. As part of that hearing, the applicant gave evidence and was cross-examined. His Honour reserved his judgment.

23    On 3 September 2015, the primary judge ordered that the application to extend the 35 day period in which to bring an application for review of the Tribunal’s decision be dismissed with costs. Concise but reasonably detailed reasons were provided for reaching that conclusion. Those reasons make it clear that his Honour:

(1)    was not satisfied that the applicant had provided an acceptable explanation for the delay in lodging the judicial review application in that Court;

(2)    was not satisfied that the pleaded ground had merit;

(3)    had considered a new allegation raised at the hearing that the Tribunal’s decision was vitiated by fraud on the part of the applicant’s migration agent but found that the matters stated before his Honour raised no arguable case of any fraud by the applicant’s lawyer; and

(4)    concluded that it was not necessary in the interests of the administration of justice that the time for filing the application be extended, this being the statutory test required to be met before granting an extension of time application under s 477(2) of the Migration Act.

Before the High Court of Australia

24    On 22 January 2016, the applicant filed a summons and application for an order to show cause in the High Court of Australia, seeking a review of the Tribunal’s decision in that Court’s original jurisdiction. On 19 May 2016, Bell J dismissed that summons and application with costs: Plaintiff S32/2016 v Minister for Immigration and Border Protection [2016] HCATrans 120.

Before this Court

25    On 16 June 2016, the applicant filed the present originating application under s 39B of the Judiciary Act in this Court.

26    The solicitor appearing for the Minister specifically advised the Court that no issue was taken with the delay between the handing down of the decision of the primary judge on 3 September 2015 and the bringing of this application on 16 June 2016, a delay of almost nine months. The explanations for this delay advanced by the applicant were problems in obtaining legal representation, his unsuccessful attempts to persuade the Minister to intervene, and the unsuccessful application to the High Court. In my view, none of those reasons would be sufficient to disregard the extensive delay in bringing this application.

27    Because of the conclusion reached on the question of jurisdictional error it was not necessary to consider whether to accept the Minister’s concession that the delay should not be taken into account. That concession may have been given because the Minister was of the view that the success of his case did not depend on relying on the applicant’s delay. However, I would not consider myself to be bound to accept such a concession in an appropriate case, for the reasons I have previously discussed in AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [56]-[58]. In my view, it remains the obligation of a judge to consider whether the exercise of discretion to grant relief should be exercised independently of, although of course influenced by, the position taken by the parties.

28    A document entitled “statement of claim” was filed with the present s 39B application and contained the following grounds of review (as per original):

1.    The Third Respondent erred by failing to find that the decision of the Second Respondent was affected by a jurisdictional error due to the failure of the my migration agent to comply with his statutory obligations under s 314(1) of the Migration Act 1958 (Cth).

2.    The Third Respondent erred by failing to consider relevant integers of the case.

3.    The Third Respondent’s judgment was affected by a breach of natural justice.

Submissions and fresh evidence advanced by the applicant at the hearing

29    At the commencement of the hearing of the present application, the applicant handed up written submissions apparently prepared by a friend of his, without objection from the Minister’s solicitor. He also sought leave for that friend to sit with him and assist him as a “McKenzie friend”, which was not opposed provided that person did not make submissions on the applicant’s behalf. That limited degree of assistance was permitted.

30    The applicant also sought to rely upon an unsworn affidavit which was drafted in the applicant’s name and was accompanied by 13 annexures. Those annexures broadly fell into two categories: first, documents pertaining to the applicant’s unsuccessful attempt to secure ministerial intervention; and, secondly, documents pertaining to complaints made against Mr Issa by other clients which formed the basis of proceedings in the Migration Agents Registration Authority and in the Administrative Appeals Tribunal.

31    The Minister initially objected to those documents being received principally upon the ground of relevance, but also upon the basis that the material was not before the primary judge. Ultimately, the Minister did not object to the documents sought to be tendered by the applicant in the first category being taken into account as to the general history of the applicant’s dealings with the Department, but not as to the content or factual assertions made in any of those documents.

32    In relation to documents in the second category, the Minister’s solicitor made an additional objection to lack of relevance and the material not being before the primary judge, namely that this appeared to be impermissible tendency evidence.

33    I rejected the tender of the additional material, upholding the Minister’s objection. As it turned out, if there had been any need to rely upon the Minister’s concession concerning delay in bringing the proceedings in this Court, that might well have obviated the need to consider even the fact of unsuccessful attempts to secure ministerial intervention.

Consideration of grounds of review

Ground 1 – allegation of fraud by the migration agent

34    The first ground of review effectively asserts that the primary judge erred by not finding that the decision of the Tribunal was vitiated by the fraud of the applicant’s migration agent. The Minister’s solicitor submitted in writing:

(1)    as noted in the primary judge’s reasons, the applicant complained that his lawyer failed to advise him about what evidence he should give to the Tribunal, and failed to inform the applicant of any hearing before the Tribunal;

(2)    despite those complaints, before the primary judge, the applicant acknowledged that he signed a document which authorised his lawyer to request that the Tribunal decide his application for review “on the papers”;

(3)    a finding of fraud is a serious matter which must be distinctly pleaded and proved: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 196 [15];

(4)    the Court must be satisfied that serious allegations of fraudulent conduct have been proved to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363, 368 and more recently by Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 at 509-510 [33];

(5)    to constitute jurisdictional error, the conduct in question must not only amount to fraud, but must amount to fraud on the Tribunal, and poor advice from a migration agent is not sufficient to amount to a jurisdictional error: SZFDE at 207 [53];

(6)    this allegation was not pleaded before the Federal Circuit Court, but was only raised orally at the hearing before the primary judge;

(7)    the applicant gave oral evidence at that hearing in support of that allegation in which he conceded that he instructed his migration agent to request that the Tribunal decide his application for review “on the papers before the Tribunal”, an instruction that the agent complied with; and

(8)    it therefore followed that there was no error at all, let alone jurisdictional error, demonstrated in the primary judge’s finding that there was no evidence before his Honour to enable him to conclude that the decision of the Tribunal was vitiated by fraud on the part of the applicant’s migration agent.

35    The Minister’s solicitor also submitted that the gravamen of this ground appeared to be an allegation that the Tribunal’s decision to proceed to judgment without convening a hearing was tainted by non-compliance of a third-party, being the applicant’s migration agent, with an imperative duty under s 314(2) of the Migration Act that the migration agent conduct himself in accordance with the Code of Conduct for registered migration agents: see regulation 8 and Schedule 2 of the Migration Agents Regulations 1998 (Cth). Such an argument would rely on reasoning analogous to that in Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 327 ALR 28, which was handed down after the primary judge’s decision.

36    It was submitted by the Minister’s solicitor that no such argument was ever put before the primary judge such that there could not be any jurisdictional error in failing to address it. It was further submitted that s 314(2) of the Migration Act does not create an imperative duty in the same sense as the provision under consideration in Wei, being s 19 of the Education Services for Overseas Students Act 2000 (Cth); and, in any event, there was insufficient evidence before the primary judge to support any conclusion that the migration agent breached the Code of Conduct.

37    In his written submissions the applicant stated the following (text and formatting per original) in relation to what had happened at the Tribunal stage and prior to any hearing in the Court below:

Misconducts of Mr Issa

4.    In January 2014 I had two Migration Agents acting for me for my review process before the Second Respondent. Mr Issa, second agent, made me sign some documents in English; I am not sure what they were. Apparently, he took my authorisation to proceed at the tribunal without a hearing.

5.    He kept hiding his faults and when I received a bill from the AAT at my home address and asked Mr Sam what was it about, only then I learned about the Decision.

6.    He kept hiding his faults all the way till he finally withdrew from my Federal Circuit Court proceedings. This way he breached his legal obligations and codes as an employee of the court which the Court below overlooked.

7.    He did not follow most of my instructions and went out of control with his misconducts. He breached Clauses 1.10, 2.1, 2.3, 2.4, 2.6, 2.7, 2.8 and 2.9 of the Code of Conduct for the registered migration agents. Thus he breached s 314(2) Migration Act 1958 (cth). Which was also overlooked by the Primary Judge.

38    The Minister’s solicitor addressed these submissions orally, essentially adhering to his written submissions. It was pointed out that [7] of the applicant’s submissions relied upon material that was not before the primary judge. It is worth noting that it is highly unlikely that the majority of this additional material, the tender of which was rejected in this Court as noted above, would have been admissible before his Honour. The additional material was tenuous evidence of a tendency nature, trying to rely upon alleged conduct by Mr Issa in relation to other clients to bolster his case in trying to establish the conduct towards the applicant that he complained about. While the Code of Conduct could have been received, that would not of itself achieve the applicant’s purpose. He wanted to rely on what had happened in other cases, but that was not allowed because, apart from the admissibility reasons already given, at a practical level it would not assist in determining whether there had been any relevant misconduct by Mr Issa in the applicant’s case. It would not assist in establishing any error at all on the part of the primary judge, let alone jurisdictional error.

39    A final point that needs to be addressed in relation to this ground concerns the reason why the applicant did not appear before the Tribunal. The primary judge observed at [18] (footnotes omitted):

At the hearing before me, the applicant complained that his lawyer “destroyed my case”. The applicant complained that his lawyer failed to advise him about what evidence he should give to the Tribunal, and he failed to inform the applicant of any hearing before the Tribunal. The applicant, however, acknowledged he signed a document which authorised his lawyer to request the Tribunal to decide the applicant’s application for review “on the papers before the Tribunal”.

40    The applicant also acknowledged in the course of the hearing of his application before this Court that he had indeed signed the consent for the Tribunal to proceed on the papers referred to by the primary judge.

41    The applicant suggested before me from the Bar table that he had done so without appreciating the significance of what he was signing. There was no evidence in support of that assertion before me. More importantly, however, the above quote from the primary judge’s reasons strongly suggests that the applicant did not make this particular allegation before the primary judge of not appreciating what he was signing when he consented to a Tribunal review on the papers. It carries the hallmarks of recent invention. In any event, no question of error on the part of the primary judge therefore arises on this further issue.

42    This ground must fail because no error on the part of the primary judge has been established in relation to what was before his Honour, let alone jurisdictional error.

Ground 2 – allegation of “failing to consider relevant integers of the case”

43    The Minister’s solicitor submitted in writing that this ground was a general and unparticularised assertion that the primary judge failed to consider “relevant integers” of the applicant’s case. Moreover, the ground did not disclose any jurisdictional error on his Honour’s behalf. The applicant did not attempt to make any submissions orally or in writing in support of this ground, despite it being specifically confirmed with him that he had received and read the Minister’s written submissions. As there is no substance whatsoever to this ground, it must fail.

Ground 3 – allegation the primary judge’s decision was “affected by breach of natural justice”

44    The Minister’s solicitor submitted in writing that this ground was also a general and unparticularised assertion, this time to the effect that the primary judge failed to provide the applicant with “natural justice”, and again did not disclose any jurisdictional error on the part of his Honour. The applicant did not attempt to make any submissions orally or in writing in support of this ground. As there is no substance whatsoever to this ground, it must fail.

Conclusion

45    There is no proper basis to grant the relief that the applicant seeks. His application for review must therefore be dismissed with costs.

Associate:

Dated:    22 November 2016