SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 98 (18 February 2005)

SQMB and SQNB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

SAD 557 of 2003

MANSFIELD J
18 FEBRUARY 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 557 OF 2003

BETWEEN:	SQMB & SQNB APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	18 FEBRUARY 2005
WHERE MADE:	ADELAIDE

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 557 OF 2003

BETWEEN:	SQMB & SQNB APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	18 FEBRUARY 2005
PLACE:	ADELAIDE

1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for orders by way of certiorari, prohibition and mandamus in respect of a decision of the Refugee Review Tribunal (the Tribunal) dated 1 May 2003 and published on 23 May 2003. The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (the respondent) not to grant to the applicants protection visas for which they had applied under the Migration Act 1958 (Cth) (the Act).

2 The applicants arrived in Australia on 2 December 2001. Shortly thereafter, they applied for protection visas under the Act. To be eligible for the grant of those visas, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the criteria specified under the Act and the Migration Regulations were met. Relevantly, s 36(2) of the Act provides that a criterion for a grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the decision-maker is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention), or is the spouse or dependent of such a person. The first named applicant was the principal applicant. He claimed to be a person to whom Australia has protection obligations under the Convention as he claimed to be a refugee as defined in Art 1A(2) of the Convention, namely that he is a person who:

3 The second named applicant herself claimed to satisfy s 36(2) of the Act simply in her capacity as a spouse of the first-named applicant. Her entitlement to a protection visa clearly stood or fell with the application of the first named applicant. In the circumstances, I shall hereafter call the first named applicant the principal applicant.

4 The applicants are husband and wife. They are citizens of India. The principal applicant is a Sikh from Punjab. He claimed to be a refugee and in broad terms to have a well-founded fear of persecution by reason of his ethnicity and religion, because he was not prepared to pay a bribe to a police officer who sought to elicit a bribe from him in the course of him conducting his trucking business, and that thereafter he had been framed by the police who had charged him with drug offences. He claimed that he was targeted for such extortion because he was a Sikh. He also claimed that, because he is a member of the Congress Party, his local Member of Parliament has refused to assist him.

6 As the Tribunal was not satisfied that the principal applicant met the criterion for eligibility for a protection visa specified under s 36(2) of the Act, s 65(1) of the Act required it to affirm the decision not to grant him a protection visa. It followed that the application of the second named applicant was also dismissed.

7 The applicants sought judicial review of the decision of the Tribunal by application made on 18 June 2003. On 8 September 2003, directions were given directing to prepare their application for hearing. They did not comply with those directions. The matter came before the Court for further directions on 17 October 2003. On that occasion counsel appearing for the applicants said:

8 In those circumstances, the application was dismissed by order made on 17 October 2003.

9 On 9 November 2003 the applicants appealed to the Full Court from the decision dismissing their application. They contended that they had not given their solicitor who appeared for them on the directions hearing on 17 October 2003 instructions that they did not wish the matter to proceed to a hearing. Directions were given by the Full Court on 20 August 2004 with a view to any evidentiary issues being identified and further orders made as to how the appeal might be disposed of. The appeal next came on for hearing on 18 November 2004. On that occasion, by consent, the appeal was allowed and the orders made on 17 October 2003 set aside. The respondent consented to that order on the basis that the solicitor appearing for the applicants on 17 October 2003 did not have instructions that they did not wish to proceed with the application.

10 The matter has been remitted to the Court for hearing. Consequently, the present application is a re-hearing of the application for orders by way of constitutional writs in respect of the decision of the Tribunal made on 1 May 2003.

11 At the time of the application to the Court first being made, the grounds upon which jurisdictional error was asserted were expressed in quite general terms. An amended application was filed on 16 December 2004. The grounds of the application are:

12 The foundation for those grounds concerns the circumstances of the Tribunal’s decision-making, in particular the circumstances in which it made its decision without any hearing at which the principal applicant was present.

14 Section 426(1) and s 425A then provide for the content of the invitation to appear which must be given. Those sections specify the means by which the notice must be given and as to the contents of the notice.

16 On 1 April 2003 the Tribunal sent to the principal applicant and to his migration agent an invitation to appear before the Tribunal to give evidence and to present arguments concerning the issues arising in the application for a protection visa. The hearing was to take place on 12 May 2003. In this matter there is no dispute that the document which the principal applicant received complied with ss 425A and 426.

17 On 9 April 2003 the principal applicant signed a document entitled ‘Response to Hearing Invitation’. It was returned to the Tribunal. When it was returned to the Tribunal it had marked the box indicating that the principal applicant did not want to attend the hearing. The document, when returned to the Tribunal, also contained the principal applicant’s personal details and those of his migration agent. It was signed by the principal applicant. The Tribunal then, as it was apparently entitled to do under s 426A, proceeded to determine the application. In the written submissions of the applicants, their counsel quite properly acknowledged that on the face of the documents, the Tribunal had apparently complied with the requirements of s 425 and the supporting sections, and was entitled to so proceed.

18 The particulars of the grounds of the application explain why, despite that, it is now sought to set aside the Tribunal’s decision. It is alleged that the applicants understood only limited English, and relied upon their migration agent to advise them in relation to their application for protection visas under the Act. It is further alleged that the migration agent did not explain to them that on 11 July 2002 he had filed on their behalf an application to the Tribunal for review of a decision of a delegate of the respondent to refuse them protection visas, made on 13 June 2002 or the nature, effect or requirements of making such an application to the Tribunal. Directly applicable to the present claim, it is then asserted that the migration agent did not inform them that the Tribunal had invited them to appear before it to give evidence, but simply told the principal applicant to sign a response to the hearing invitation form which was then returned to the Tribunal indicating that the applicants did not wish to appear to give evidence and present argument. It was on the basis of that conduct on the part of the migration agent that, it is asserted, the applicants did not attend before the Tribunal and the Tribunal then proceeded to determine the visa applications adversely to the applicants.

19 That conduct on the part of the migration agent of the applicants was said to be fraudulent and to permeate the decision of the Tribunal (notwithstanding its compliance with the requirements of the Act apparently) so as to invalidate it. It is also said to result in the Tribunal having failed to extend an objectively meaningful invitation to the applicants to attend a hearing as required by s 425 of the Act, and to have led to the Tribunal failing to accord procedural fairness to the applicants in connection with the making of its decision because the applicants were not informed of the case which they had to address and were denied a reasonable opportunity to answer that case. As a consequence of those matters also, it is alleged that the Tribunal failed to conduct a review in accordance with the requirements of s 414 of the Act.

20 The starting point to address those issues is the complex of factual allegations that the principal applicant was not advised about, and did not understand, the purport of the application to the Tribunal at all, and in particular the invitation to attend the hearing. Consequently, he claims he did not understand that he had the opportunity to, and did not take up the opportunity to, attend before the Tribunal at a hearing but instead signed a document completed by his migration agent which indicated to the Tribunal that he did not wish to attend the hearing before it.

21 In view of the serious allegation of fraud on the part of the migration agent, the material adduced by the applicants was served upon the migration agent and the migration agent attended in person and participated at the hearing of the application.

22 At the hearing, evidence was given by the principal applicant (through an interpreter) by the migration agent and by Hiran Kulatilaka (Mr Kulatilaka) and Gurkipal Singh Nagra (Mr Nagra), both employees of the migration agent at the relevant time, as well as by the wife of the migration agent. In addition, an affidavit of a solicitor of the respondent was tendered, exhibiting the documents held by the applicants’ former solicitor which had been received by him from the migration agent.

23 The principal applicant’s evidence was to the effect that the applicants put all their trust in the migration agent, and that in effect they did not receive any advice from him as to the contents or effect of documents relevant to their visa application and that they simply signed documents as required by him because the migration agent simply told them not to worry about documents as he had it all in hand. The principal applicant said that he could not read or understand those documents as he could not read or understand English, and in fact could barely speak it. The principal applicant said that he did not have explained to him the fact that a delegate of the respondent would first make a decision with respect to the visa application, nor even that the delegate of the respondent had refused the application, nor anything about the Tribunal or its processes. He said they simply got documents from the migration agent indicating where they were to sign, and they did so. He did not remember receiving the letter of 1 April 2003 inviting him to attend the hearing before the Tribunal on 12 May 2003, although he accepted that he had signed that document. He said he did not understand what he was signing, and his normal procedure was to telephone his migration agent to ask what any document received was about. He said his migration agent invariably did not tell him the Tribunal was inviting him to attend a hearing. He said he would have accepted an invitation to attend before the Tribunal to explain why he claimed to be entitled to a protection visa, and that he had further documents to provide in support of his claim.

24 The principal applicant explained that he was introduced to the migration agent through a contact at the Sikh temple he attended. As he lived in the country, when he first met the migration agent he stayed with him at his home in Sydney. He was given the telephone numbers of the migration agent, and whenever he received a letter about his application he contacted the migration agent. He said he always followed the advice of the migration agent, which was simply to the effect ‘I will look after you’, but otherwise involved no real advice or explanation. Mainly, the migration agent already had also received a copy of any correspondence and would tell the applicant about that and that he had the matter in hand so that the principal applicant should not worry.

25 I do not accept that the principal applicant was so unaware of the nature or processes by which his application for protection visa was to be determined. The letter of 1 April 2003 was accompanied by a brochure of the Tribunal dated January 2003 and entitled ‘What is a Hearing?’. It was in English but it also contained in a number of languages including Punjabi (the applicants’ language) the following:

The principal applicant did not remember receiving that brochure although the letter refers to it as an enclosure. He did not remember reading it. He did not contact the TIS. It is somewhat surprising that the principal applicant was so indifferent to the processes of the application that he does not recall that information being received or considered by him.

26 Indeed, the whole of the principal applicant’s evidence was to the general effect that he really understood very little about the protection visa application or the processes by which it would be determined. He claims he left it all to the migration agent, who encouraged him to do so. That was even to the point that the principal applicant barely supplied to the migration agent the information upon which the application for the protection visa was based.

27 I observed the principal applicant carefully during his evidence. He struck me as an intelligent man. I found it surprising that he was so uninformed about the processes by which the application for a protection visa would be determined, and about his preparedness (as he described it) simply to accept that the migration agent would do what was necessary and that he need not worry about anything. The level of indifference to learning of any details about the processes generally by which the protection visa application would be determined and in particular how the application for a protection visa was progressing, was not one which struck me as consistent with his apparent level of intelligence. He sought to explain that as a total trust in the migration agent, but such trust does not of itself lead to the lack of any attempt whatsoever to learn about how the protection visa application was progressing. He was even unaware of the decision of the delegate. Moreover, as set out below, his evidence is inconsistent with other evidence.

28 In determining whether the principal applicant was as unaware as he claimed of the processes of the Tribunal, and in particular with respect to the invitation of 1 April 2003 in accordance with s 425 of the Act inviting him to participate in the hearing, I have borne in mind the fact that the principal applicant’s evidence was given through an interpreter. Obviously that process slows the exchange of information through questions, and answers and may make responses more stilted and less spontaneous than might be the case if evidence were given in a native language. However, despite making allowance for those matters, I formed the impression that the principal applicant was quite calculating in certain of his responses, and that his delay or apparent difficulty in answering certain questions in cross-examination was due to him searching for the response he thought would best serve his case and would be consistent with the picture which he was seeking to present, rather than that he was simply seeking properly to respond to a question. On a few occasions, he appeared to me to have selected a response, and then to backtrack when he realised that it was not entirely consistent with the picture he presented.

29 Certain material submitted to the Court on behalf of the applicants when the application was first made to the Court included information regarding the principal applicant’s financial position. He provided certain material to his migration agent on the topic, including certain brief invoices of income received from fruit picking work. On one of those invoices is recorded detail of how much work had been done. The principal applicant denied that that detail (‘For 20 days for me & my wife’) was inserted by him, although it appeared immediately above his signature and date. He offered no explanation as to who else did or might have written those words. I think his denial was because he wished to emphasise his inability to read or write or understand English. In my view that was an exaggerated position. The lack of his capacity to read or write or understand English is not consistent also with the evidence of Mr Kulatilaka or Mr Nagra, both of whom impressed me as straightforward and honest witnesses. Mr Nagra, who was at the time employed by the migration agent, gave evidence that on one occasion he accompanied the principal applicant to Court to lodge an application for constitutional writs. He heard the principal applicant speak to Court staff in English, and discerned that the principal applicant had a reasonable command of English. He was also present when the principal applicant explained to another solicitor at some length what his claim was about. That too is inconsistent with the principal applicant’s evidence that he had no understanding of what his claim was about. Mr Kultilaka, also at the time an employee of the migration agent, also observed the principal applicant on a number of occasions at the office of the migration agent when the principal applicant spoke in English ‘reasonably well’, including to Mr Kultilaka (who does not speak Punjabi). Mr Kultilaka confirmed that the principal applicant asked him questions as to the application for protection visa indicating that he had a clear awareness of the issues in the case, including as to the procedural steps which were being taken to pursue the claim, including through the Tribunal. Again, that is inconsistent with the principal applicant’s evidence.

30 I also formed the view that the migration agent’s evidence was generally reliable and should be accepted. He has ceased to be registered as a migration agent. He acknowledged that he withdrew his registration, as it happened more or less coincidentally with an investigation of the Migration Agents Registration Authority (MARA), which subsequently came to suspend his registration (or his entitlement to be registered). The grounds of MARA’s concern about the migration agent do not relate to his handling of the application for a protection visa of the applicant. Despite that cloud over the migration agent, the very sparse record keeping which he acknowledged, and despite his relatively laconic communications, I think he was a generally truthful witness. He did not attempt to conceal those matters. He said that when he first saw the principal applicant he explained the nature of a protection visa, and briefly the decision-making processes by which a protection visa application is determined, including through the Tribunal. He obtained particulars from the principal applicant as to why he claimed to be a refugee, and personal details, for insertion into the protection visa application. The principal applicant barely acknowledged that he had provided that information through the migration agent, but he must have done so. He may simply have forgotten that conversation took place, but it is inherently likely that he did and indeed it is hard to see how the protection visa application was made without it. The migration agent also said that, following the decision of the delegate refusing the grant of the protection visa sought, he discussed with the principal applicant the prospect of applying for review of that decision to the Tribunal and was given instructions to proceed. Again, I think it is inherently likely that there was some such conversation, despite the principal applicant’s claim that at the time he had no such understanding and, indeed, did not even know of the existence of the Tribunal. There is no reason why the migration agent would not have had such a conversation. I do not see any reason why the migration agent would want to have concealed that information, or have acted without instructions. No particular motive for doing so was put forward in submissions, other than the desire of the migration agent to earn money from further progressing the application, but such a motive (if it existed) would be equally consistent with conveying information about the process as with concealing it. No particular motive was put to the migration agent for his comment in the course of cross-examination.

31 I also found that the evidence of the migration agent about the conversation concerning the invitation to attend the hearing before the Tribunal, made by letter of 1 April 2003 was inherently likely. It is consistent with the impression I formed about the principal applicant’s intelligence, and with the view I have that he is now presenting a picture of a degree of unawareness about the protection visa application, and the processes of determining it, which is inaccurate. When the letter of 1 April 2003 was received, it is common ground that there was at least one conversation between the principal applicant and the migration agent. I find that there were at least two, and possibly more, such conversations between them. I accept the evidence of the migration agent that he explained the nature of a hearing, including the availability of an interpreter, and discussed with the principal applicant the pros and cons of the principal applicant attending the hearing. I reject the principal applicant’s evidence that the migration agent simply told the principal applicant to leave the matter to him, and then arranged for the response to be sent to indicate that the principal applicant would not attend the hearing. After the conversations, and the decision having been made by the principal applicant, the migration agent said that he completed the form to indicate that the principal applicant would not attend the hearing and sent it to him for execution.

32 In my judgment the decision not to attend the hearing was made by the principal applicant, knowing of the application being before the Tribunal and knowing of the opportunity to attend the Tribunal hearing to give evidence and to make submissions. It was not as a consequence of fraud on the part of the migration agent, nor any gross dereliction of his responsibility to the principal applicant, that the decision was made by the principal applicant not to attend that hearing. It was not simply the principal applicant leaving the matter entirely to the migration agent that the form was completed and submitted to the Tribunal indicating that the principal applicant did not wish to attend the hearing.

33 There is a further piece of evidence from the migration agent which impressed me as inherently accurate rather than a fabrication, and which accords with the view which I formed as to the principal applicant’s awareness of the nature of, and progress of, his protection visa claim. It took place following the decision of the Tribunal, and in the context of the principal applicant and the migration agent determining whether the principal applicant should make an application to the Court to set aside the Tribunal decision. At that time, I accept that one option which was discussed was for the applicants to apply to the first respondent under s 417 of the Act to exercise the power available to make a decision more favourable to them notwithstanding the Tribunal’s decision. That is a procedure commonly adopted by unsuccessful applicants for protection visas and a procedure well known to persons such as the migration agent. There is no reason why it would not have been the subject of discussion between the migration agent and the principal applicant. The migration agent said that when he raised that option with the principal applicant, the principal applicant indicated that he should not pursue that avenue because it would preclude the applicants from working. On the other hand, an application to the Court to set aside the Tribunal’s decision would, as the principal applicant understood, entitle them to an ongoing visa which enabled them to keep working.

34 Counsel for the applicants indicated that the applicants sought findings that, when the principal applicant received the letter of 1 April 2004, he did not understand it and that he telephoned the migration agent, but was not then told that it amounted to an invitation to attend a hearing or that there was the possibility of a hearing before the Tribunal, but was simply told ‘not to worry’. I do not make those findings. In my judgment the principal applicant, having received the letter of 1 April 2004, did have some discussions with the migration agent. As a consequence of the enclosures with that letter, his knowledge of English including his capacity to read a little, and his discussions with the migration agent, I find that he understood that there was at the time an application to the Tribunal and that there was at the time an opportunity for him to attend the Tribunal to present evidence and to make submissions as to why a protection visa should be granted to him. He did not take that opportunity up.

35 In the consequence of that finding, the foundation of the applicant’s claim for jurisdictional error on the part of the Tribunal is not established. The application must be dismissed. It is not necessary to address the careful and thorough submissions prepared by Mr Ower of counsel for the applicants that constitutional writs are available where the decision of an inferior court or tribunal has been obtained by a fraud or perjury of a third party. The contentions relied upon the decisions of R v Gillyard (1848) 12 QB 827; R v Recorder of Leicester; Ex party Wood [1947] KB 726; R v Sussex Quarter Session; Ex parte Albert and Maud Johnson Trust Ltd [1974] 1 QB 24 and Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 721-713. My brief reference to those submissions does not, of course, do justice to the well-developed nature of them.

36 The application is dismissed. The applicants must pay the respondent’s costs of the application.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant:	SD Ower

Solicitor for the Applicant:	Refugee Advocacy Service of South Australia Inc.

Counsel for the First Respondent:	M Roder

Solicitor for the First Respondent:	Sparke Helmore

Counsel for the Second Respondent:	The Second Respondent did not appear

Date of Hearing:	12 January 2005

Date of Judgment:	18 February 2005

1.	The application is dismissed.
2.	The applicants pay to the first respondent costs of the application.

Federal Court of Australia

SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 98 (18 February 2005)