SZHIE v Minister for Immigration and Citizenship [2010] FCA 209 (12 March 2010)

Last Updated: 15 March 2010

FEDERAL COURT OF AUSTRALIA

SZHIE v Minister for Immigration and Citizenship [2010] FCA 209

Citation:		SZHIE v Minister for Immigration and Citizenship [2010] FCA 209
Parties:		SZHIE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 95 of 2010
Judge:		FOSTER J
Date of judgment:		12 March 2010
Catchwords:		PRACTICE AND PROCEDURE – application for an extension of time to appeal from a decision of a Federal Magistrate – relevant principles discussed – lengthy delay not satisfactorily explained – prospects of appeal weak – application refused
Legislation:		Migration Act 1958 (Cth) Pt 7 Div 4, s 424A, s 426A Federal Court Rules O 52 r 15
Cases cited:		SZHIE v Minister for Immigration and Citizenship [2007] FMCA 744 related Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 cited Jess v Scott (1986) 12 FCR 187 applied Parker v The Queen [2002] FCAFC 133 applied SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 cited Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 applied
Date of hearing:	4 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	CATCHWORDS
Number of paragraphs:	64
Counsel for the Applicant:	Mr SEJ Prince (Pro Bono) and Mr A Stenhouse (Pro Bono)
Counsel for the First Respondent:	Mr P Reynolds
Solicitor for the First Respondent:	Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 95 of 2010

BETWEEN:

SZHIE Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	12 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Application filed by the applicant on 3 February 2010 be dismissed.
2. The applicant pay the first respondent’s costs of and incidental to that Application.
3. The exhibits be returned.
   

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
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 95 of 2010

BETWEEN:

SZHIE Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FOSTER J
DATE:	12 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 3 February 2010, the applicant filed an Application in which he sought an order extending the time within which he might file and serve a Notice of Appeal from a judgment of a Federal Magistrate delivered on 13 March 2007 (SZHIE v Minister for Immigration and Citizenship [2007] FMCA 744).
2. The Federal Court Rules required that any Notice of Appeal in the present case be filed within 21 days after 13 March 2007 (as to which see O 52 r 15(1)(a) of the Federal Court Rules). Therefore, the applicant should have filed his Notice of Appeal by no later than 3 April 2007.
3. There has been significant delay on the part of the applicant in attending to his right of appeal. That delay is almost three years.
4. The Federal Magistrate dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 22 June 2005 and handed down on 12 July 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a protection visa to the applicant.
5. The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 12 December 2004, having legally left China on a Chinese passport issued in his own name and having been granted a business visa on 25 November 2004. The applicant travelled to Hong Kong and then to Australia, entering this country through Adelaide Airport.
6. On 19 January 2005, the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs (the Department). He claimed persecution in China as a practitioner of Falun Dafa. The applicant’s application for a protection visa was dated 4 January 2005. The delegate refused the applicant’s application for a protection visa on 5 March 2005 and notified that decision to:

Ms Holly Chen
PO Box 6168
PYMBLE NSW 2073

Notification of that refusal was given by letter dated 7 March 2005 under cover of which the delegate’s decision record dated 5 March 2005 was provided.

7. Holly Chen was the person nominated by the applicant in his application for a protection visa as the person authorised by him to receive all written communications concerning that application. The address for Holly Chen nominated in that form was the address to which the letter dated 7 March 2005 was sent viz:

PO Box 6168
PYMBLE NSW 2073

8. On 6 April 2005, by Application for Review dated 31 March 2005, the applicant applied to the Tribunal for a review of the delegate’s decision.
9. In his Application for Review lodged with the Tribunal, the applicant nominated:

PO Box 6168
PYMBLE NSW 2073

as his mailing address.

10. He did not nominate Holly Chen or any other person as his authorised recipient of correspondence in connection with the review which he was seeking in the Tribunal.
11. In his draft Notice of Appeal filed with his Application for an Extension of Time, the applicant raises four grounds of appeal. Those grounds may be summarised as follows:

(a) The Tribunal’s decision was vitiated by jurisdictional error by reason of the fraud of a Migration Agent engaged by the applicant, Mr Jing Xin Wu, in that Mr Wu concealed his involvement in the applicant’s application for a protection visa from the Department, the delegate and the Tribunal by failing to disclose in the protection visa application and in the Application for Review lodged with the Tribunal the fact and nature of his involvement with the applicant and the applicant’s applications and dishonestly and deliberately failed to tell the applicant of the time and place of the Tribunal hearing the details of which the applicant asserts were correctly notified to Mr Wu;

(b) Notwithstanding the fact that the ground summarised in subpar (a) above was not articulated in the applicant’s Amended Application for Review in the Federal Magistrates Court, the applicant had nonetheless made sufficiently clear to the Federal Magistrate that he was relying upon a ground in those terms but the Federal Magistrate nevertheless failed to deal with that ground; and

(c) The Federal Magistrate failed to give sufficient weight to the facts that, in the applicant’s application for a protection visa and in his Application for Review lodged with the Tribunal, the addresses which he notified as his residential address and address for correspondence were both addresses at which he had never lived.

12. At the heart of the appeal which the applicant wishes to be let in to prosecute is his allegation that the conduct of Mr Wu stultified the operation of the legislative scheme embodied in Div 4 of Pt 7 of the Migration Act 1958 (Cth) (the Act) thereby denying natural justice to him.
13. In addition, the applicant relies upon the alleged dishonest conduct on the part of Mr Wu and incompetent advice received by him from a second Migration Agent, Mr Lanshan Gao, as providing a satisfactory explanation for the lengthy delay between the date when the Federal Magistrate delivered her decision and the date when the applicant filed the application with which I am now dealing.

THE RELEVANT PRINCIPLES (EXTENSION OF TIME)

14. Order 52 r 15 of the Federal Court Rules is in the following terms:

15 Time for filing and serving notice of appeal
(1) The notice of appeal shall be filed and served:

(a) within 21 days after:

(i) the date when the judgment appealed from was pronounced;
(ii) the date when leave to appeal was granted; or
(iii) any later date fixed for that purpose by the court appealed from; or

(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.
(3) An application for leave under subrule (2) must:

(a) be in accordance with Form 54A; and
(b) include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and
(c) be accompanied by an affidavit setting out:

(i) the nature of the matter; and
(ii) the factual and legal issues in dispute; and
(iii) the reasons why leave should be given.

(4) If a respondent objects to an application being dealt with without an oral hearing, the respondent must:

(a) file a notice to this effect; and
(b) serve a copy of the notice on each other party to the application.

15. The applicant in the present case must satisfy subrules (2) and (3) of O 52 r 15.
16. The Full Court has held that a special reason within the meaning of O 52 r 15(2) of the Federal Court Rules is a circumstance which takes the case out of the ordinary run of cases in which an appeal should be filed within 21 days (Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [50] per Jessup J with whom Gyles and Besanko JJ agreed).
17. In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said:

What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.

18. In Parker v The Queen [2002] FCAFC 133 at [6], the Full Court said:
    6. In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour’s attention were set out at 348-349:
       1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;
       2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
       3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
       4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
       5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
          
19. It may often also be relevant for the Court to consider the importance of the issues raised in the proposed Notice of Appeal and the bona fides of the appeal.
20. In migration cases, depending upon the circumstances of each individual case, it may be appropriate to weigh the following facts and matters in the balance when the Court is considering whether special reasons exist:

(a) The fact that the applicant has been in immigration detention at all relevant times;

(b) The fact that the applicant requires the assistance of an interpreter; and

(c) The fact that the applicant has limited knowledge of the law and relevant practice (including, if relevant, no or limited awareness of his rights of appeal).
(See Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14] and [15]).

THE APPLICANT’S EVIDENCE TENDERED IN SUPPORT OF HIS EXTENSION OF TIME APPLICATION

21. Before me, in his affidavit sworn on 28 January 2010, the applicant testified that:

(a) On and after his arrival in Australia, he lived in Blacktown where he shared a room with a person who was a relative of a friend of his sister-in-law who lived in China. He stayed continuously at the same address in Blacktown until he travelled to Western Australia in July 2007. He has never lived in East Killara or in Pymble.

(b) The address in Blacktown where he stayed in the period from December 2004 to July 2007 was:

74 Sarsfield Street
BLACKTOWN NSW 2148

(c) His landlord at Blacktown introduced him to the Migration Agent, Jing Xin Wu who had an office in Chinatown in Sydney.

(d) On the first occasion when the applicant met with Mr Wu, he told Mr Wu his story and that he was a Falun Gong practitioner. Mr Wu advised him to apply for a protection visa. The applicant said that he had paid Mr Wu $800 on the first occasion that they met. On that occasion, he conveyed to Mr Wu some details of the persecution which he had experienced. He did not subsequently add to the instructions which he gave Mr Wu on that first occasion.

(e) When the applicant first met with Mr Wu, he was accompanied by his landlord. Mr Wu told the applicant that the first step in the process was to obtain a decision from an officer of the Department. If that decision was unfavourable, the applicant could apply to the Tribunal for a review of the departmental officer’s decision. The applicant said that he signed certain forms on the first occasion when he met with Mr Wu. He said:

... when Mr Wu asked what was my address, my landlord suggested Mr Wu put his own address because it was not clear at this stage where I would be staying in the future. My landlord assured Mr Wu he would inform him of any change of address.

(f) About one month after his first meeting with Mr Wu, the applicant went to Mr Wu’s office again and told him that his mailing address was now:

PO Box 6563
BLACKTOWN NSW 2148

and that his mobile telephone number was:

0423 808 322

(g) The applicant testified that he retained that mobile telephone number until at least July 2007.

(h) A few months after his second visit to Mr Wu’s office in Chinatown, the applicant:

... got anxious about whether there had been a decision about his [protection visa] application

so he again visited Mr Wu at his office in Chinatown and asked:

... When would we get a notice to go to the RRT?”

To which he replied:

Not yet

(i) In total, he made three to four visits to Mr Wu’s office in Chinatown and was always told “Not yet” when he asked about the Tribunal.

(j) On his last visit to Mr Wu, Mr Wu told him that the Tribunal had refused his application. When the applicant queried this given that he had not even been to the Tribunal, Mr Wu said that his wife had been in hospital at the time he received notification that the RRT had refused his protection visa application and that he had been very busy visiting her in hospital. Mr Wu said that he had failed to contact the applicant because of this.

(k) The applicant was very upset by this turn of events. His roommate recommended another Migration Agent. He went to see that person, Mr Lingshan Gao. Mr Gao prepared the documents for the Federal Magistrates Court and charged the applicant $700 for doing so. Mr Gao took the applicant to the Federal Magistrates Court on 13 March 2007 and then left. The applicant represented himself before the Federal Magistrate. He lost his application.

(l) The applicant repaired to Western Australia in July 2007. On 11 February 2009 he was detained in Perth by immigration authorities.

(m) He received the assistance of a refugee support group on an ongoing basis from about May 2009. In 2009, he wrote several letters to the Minister in which he sought the exercise of a Ministerial discretion in his favour. The Minister declined to assist. The Minister’s last refusal was on 8 January 2010.

(n) He said that one of the persons from the refugee support group which had been assisting him mentioned the possibility of appealing to the Federal Court. In his affidavit, he did not state when he was asked this.

22. In a second affidavit, sworn on the morning of the hearing (4 March 2010), the applicant said:

(a) Mr Wu had failed to tell him the date of the Tribunal hearing;

(b) The second Migration Agent, Mr Gao, told him on the morning of the hearing before the Federal Magistrate that he could not win and that documents were not important;

(c) After the Federal Magistrate dismissed his case, he went back to Mr Gao and asked whether Mr Gao would take his case to another court. Mr Gao said:

No—it can’t win anyway

(d) At pars 7 and 8 of this second affidavit, the applicant said:

7. I decided it was useless to find another MA to help me because both migration agents took my money and cheated me. I did not know there was anything else I could do and I was terrified to even think of returning to imprisonment in China and dying from even harsher treatment.
8. So I just continued working in Sydney as part of a construction team of 10 workers. One of my fellow workers then got a job in Perth and phoned me and invited me to come to Perth and live with him and do construction work there because there was plenty of work.
   
23. At the hearing before me, the applicant produced an original receipt dated 22 December 2004 which he said had been written out and given to him by Mr Wu. Some of the words on the receipt are in English and others are in Chinese characters. The words on the receipt are as follows:

Received from [the applicant], the sum of $800- (including government fees) deposit $400 – the other part is to be paid when taking back the passport.
The payment includes refuges [sic] applications, work permit, TFN, ABN, GST and RRT applications.
If no work permit is granted, only $200 is to be paid for cost of work.
$400 + $400 Signature:
Received 14/03/05 Holly

24. The second $400 shown on the receipt is in lighter ink from that with which the first $400 is written. The last line of the document under the signature is also in lighter ink.
25. The receipt shows that, contrary to what the applicant had said in his first affidavit, he had paid Mr Wu (or, perhaps, Holly Chen) $800 by way of two payments of $400 each.
26. There was also tendered at the hearing before me handwritten notes made by the solicitor for the Minister who attended the hearing before the Federal Magistrate together with a letter from Clayton Utz to Counsel for the applicant of recent date which contained a typescript extract from those notes. The handwritten notes and the typescript extract make clear that the applicant informed the Federal Magistrate that he had not received a notice from the Tribunal to attend the Tribunal hearing and that he wanted a further opportunity to present his case to the Tribunal. Before the Federal Magistrate the applicant also said that he had retained a Migration Agent to deal with his application to the Tribunal and had paid him money for that service. He told the Federal Magistrate that he had paid the Migration Agent $800. He also told the Federal Magistrate that the Migration Agent to whom he had paid that money was Mr Wu.
27. In his initial Application for Review in the Federal Magistrates Court, the applicant claimed that he had never been advised of the Tribunal hearing. He said that his “adviser” had never told him of the date and place that that hearing was to take place. In an Amended Application filed in the Federal Magistrates Court, the applicant maintained that he had been unaware of the Tribunal’s invitation to attend its hearing but no longer mentioned the additional factor that his adviser had failed to inform him of that hearing.
28. The applicant was cross-examined at the hearing before me. He seemed well versed in the issues presently calling for determination. He repeatedly asserted that his Migration Agent had not notified him of the Tribunal hearing and that his Migration Agents had cheated him. He said that he had been in a panic at the hearing before the Federal Magistrate, that he had no idea what he was supposed to do and that his mind was a mess. He said that he had told the Federal Magistrate that the Migration Agent had not told him about the Tribunal hearing and that he had not received notification himself.
29. During the course of the applicant’s evidence, a letter dated 18 February 2009 written on his behalf and signed by him when he was in detention in Perth was tendered in evidence. The first paragraph of that letter is in the following terms:

My name is [applicant’s name]. I came from the People’s Republic of China. I arrived in Australia on 12 December 2004. On 20 January 2005 I lodged an application for a Protection Visa with the Department of Immigration. On 7 March 2005 the Department refused my application. Then I applied for RRT review on 6 April 2005. Because I did not speak English, I had my application prepared by a friend. Unfortunately my friend forgot to advise me about the hearing, and I lost the hearing opportunity. In the end my review application was unsuccessful.

30. The applicant accepted that he had, at some stage, provided information and instructions to Mr Gao. Mr Gao was the person who compiled this letter on behalf of the applicant. I infer that the applicant himself was the source of the information set out in the first paragraph of the letter dated 18 February 2009.
31. In his protection visa application, the applicant informed the Department that his residential address was:

19 Murrumba Place
EAST KILLARA NSW 2071

32. In that application, he disclosed that he had received assistance in completing the application from Holly Chen, whose address was PO Box 6168 Pymble NSW 2073. On the form, he said that Holly Chen was not a registered Migration Agent and that he had not paid her money to assist him to complete the form. In that application, he authorised Holly Chen to be the person to whom all written communications from the Department should be sent. He gave her address as PO Box 6168 Pymble NSW 2073 and gave a mobile telephone number for her.
33. As I have already mentioned, the delegate’s decision was notified to the applicant under cover of a letter dated 7 March 2005. That letter was sent to Holly Chen at PO Box 6168 Pymble NSW 2073 with a copy to the applicant at the East Killara address. The letter sent to the East Killara address was returned to the Department marked “Wrong address. Return to Sender”. The letter sent to the Pymble PO Box was not returned.
34. On or about 14 March 2005, the applicant notified a change of address to the Department. He told the Department that his new address was PO Box 6563 Blacktown NSW 2148. He accepts that, whilst he lived in Blacktown, that PO Box was his.
35. In his Application for Review lodged with the Tribunal on 6 April 2005, the applicant informed the Tribunal that his residential address was the East Killara address and that his mailing address was PO Box 6168 Pymble NSW 2073. In that document, he did not authorise any person to be a recipient of correspondence from the Tribunal.
36. A letter of invitation sent by the Tribunal to the applicant dated 23 May 2005 was sent to him at PO Box 6168 Pymble NSW 2073.
37. It is clear that the delegate’s decision came to the notice of the applicant because the applicant signed the Application for Review lodged with the Tribunal and also apparently had conversations with Mr Wu about the progress of his Application in the Tribunal. It is likely that the owner of PO Box 6168 Pymble NSW 2073 brought the decision of the delegate to the attention of the applicant on or about 14 March 2005. The most likely date upon which the applicant’s attention was drawn to that decision was 14 March 2005, given the note at the foot of the handwritten receipt tendered in evidence before me. It is also very likely that Mr Wu was paid $800 by way of two payments of $400 each and that the second of these payments was made on 14 March 2005. The applicant did not give evidence as to the circumstances in which he had learnt of the delegate’s decision. Nor did he explain the circumstances in which he had completed and signed his Application for Review in the Tribunal.
38. The applicant said that he had never lived at East Killara, that he was not the owner of PO Box 6168 Pymble NSW 2073, that he did not know Holly Chen and that Mr Wu had failed to tell him of the time and place of the Tribunal hearing.
39. The precise role which Mr Wu, Holly Chen, Mr Gao and possibly others played in the attempts by the applicant to secure a protection visa is unclear. There are gaps in the applicant’s version of events concerning his dealings with Mr Wu and Mr Gao.
40. For present purposes, although I am not entirely convinced of this, I accept and find that the applicant was not told by any person of the date, time and place of the Tribunal hearing and that he did not receive the Tribunal’s invitation letter dated 23 May 2005.
41. The issue which I nonetheless need to consider is whether the applicant was denied an opportunity to attend the Tribunal hearing as a result of the dishonesty of Mr Wu or some person associated with him.
42. In his first affidavit, the applicant referred to a conversation he had with Mr Wu concerning Mr Wu’s wife. However, that conversation related to Mr Wu’s failure to communicate the fact that the Tribunal had affirmed the delegate’s decision to refuse to grant a protection visa to the applicant. It did not relate to Mr Wu’s failure to tell the applicant of the details of the Tribunal hearing itself. However, the letter dated 18 February 2009 signed by the applicant whilst in detention in Perth contains an admission by him that his Application to the Tribunal had been prepared by a friend and that that friend had forgotten to advise him of the time, date and place of the Tribunal hearing. There is no suggestion in that letter that the applicant had been cheated by his Migration Agent.

THE TRIBUNAL’S DECISION

43. The Tribunal rejected the applicant’s claims, having proceeded to hear his Application for Review in his absence. The Tribunal considered the terms of the claims made by the applicant in his written materials but was not satisfied that he was ever a practitioner of Falun Gong.

THE DECISION OF THE FEDERAL MAGISTRATE

44. The Federal Magistrate dealt with the matter by reference to the Amended Application for Review which had been filed by the applicant. She held that the invitation letter dated 23 May 2005 and the notification letter dated 23 June 2005 were both sent to the applicant in accordance with the legislative scheme mandated by the Act (as to which see s 424A and s 426A). The Federal Magistrate went on to hold that the Tribunal had fairly considered the applicant’s claims but had not accepted them. The Federal Magistrate held that that conclusion was clearly open to the Tribunal.

CONSIDERATION

45. The applicant must satisfy me that there are special reasons in this case which justify the grant of the extension of time sought. He must explain the lengthy delay between 13 March 2007 and 3 February 2010 and he must address to some extent the merits of the appeal which he seeks to be let in to argue.
46. Counsel for the applicant submitted that the present case falls squarely within the principles explained by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. In that case, in a unanimous judgment of all Justices of the High Court, the Court held that, on the facts of that case, the fraud of a person masquerading as a Migration Agent had stultified the operation of the legislative scheme designed to afford natural justice to applicants for visas in that, for dishonest motives, the agent had advised the applicants in that case not to attend the Tribunal hearing. The applicants in that case were thus denied the opportunity of being heard by reason of the dishonest conduct of the Migration Agent.
47. In order successfully to invoke the principles explained by the High Court in SZFDE [2007] HCA 35; 232 CLR 189, the applicant must demonstrate that there was fraud on the part of Mr Wu and that that fraud had the immediate consequence of denying him an opportunity to attend the Tribunal hearing.
48. It was submitted on behalf of the applicant that, for present purposes, he had demonstrated a sufficiently arguable case based upon the principles laid down in SZFDE [2007] HCA 35; 232 CLR 189 to justify an extension of time.
49. The applicant’s failure to lodge a Notice of Appeal within time and his subsequent delay are both explained, so it was submitted, by the fact that the fraudulent conduct on the part of the Migration Agent continued to operate on the mind of the applicant throughout the period from March 2007 to early 2010.
50. An allegation of fraud is a very serious allegation. Whilst I appreciate that I am not presently deciding the applicant’s foreshadowed appeal, it is nevertheless incumbent upon me to make some preliminary assessment of the applicant’s prospects for the purpose of deciding whether he should be let in to argue the case which he has foreshadowed.
51. It seems to me that the evidence adduced on the present application is just as amenable to being viewed as consistent with an innocent failure on the part of Mr Wu or some other person (for example, Ms Chen) to notify the applicant of the Tribunal hearing as it is to being seen as probative of the proposition that that failure was the result of fraud.
52. In his application for a protection visa, the applicant said that he had been helped by an adviser. In his initial Application filed in the Federal Magistrates Court, he said that he had been let down by his “adviser” who had not told him of the Tribunal hearing. In the letter which he signed and authorised to be sent to the Minister in early 2009 from Perth, the applicant also referred to his “adviser”. The three documents were not completed by the same person—the first was apparently filled out by Mr Wu or Ms Chen and the latter two were prepared by Mr Gao. The applicant had consciously and intentionally authorised Mr Wu to use his (Wu’s) address as the address for notices in connection with his visa application. The use of an address other than the applicant’s Blacktown address was specifically approved by the applicant. The idea had not been initiated by Mr Wu.
53. Counsel for the applicant drew my attention to the fact that Mr Wu did not disclose at any time his involvement in the applicant’s visa application. Counsel relies upon that circumstance as an indicator of fraud on the part of Mr Wu.
54. I do not think that Mr Wu’s failure to reveal some involvement with the applicant’s visa application necessarily bespeaks fraud vis-à-vis the applicant. It is just as consistent with Mr Wu providing assistance to the applicant of a kind which the applicant wanted and expected to receive. The applicant was, after all, informed of the delegate’s decision and appears to have been helped by others to progress his Application for Review in the Tribunal. Furthermore, there is nothing on the materials before me that provides a satisfactory motive for dishonesty on the part of Mr Wu. Mr Wu is a registered Migration Agent and was registered as such in 2004 and 2005. Finally, it is the failure to notify the details of the hearing that must be fraudulent, either as part of a more general fraudulent scheme or as a stand-alone event. There is nothing to support the proposition that that failure was motivated by fraud.
55. These matters contrast sharply with the facts in SZFDE [2007] HCA 35; 232 CLR 189. The fraudster in that case was an unregistered Migration Agent who had every incentive to conceal his involvement given that his activities were in breach of the Act and constituted offences under the Act.
56. I think that the fundamental ground of appeal relied upon by the applicant based upon SZFDE [2007] HCA 35; 232 CLR 189 is weak.
57. The evidence tendered by way of explanation for delay is unsatisfactory.
58. The applicant was apparently no longer assisted by Mr Wu after he learned that the Tribunal had affirmed the delegate’s decision and was thereafter assisted by Mr Gao. Mr Gao advised him on prospects of an appeal from the Federal Magistrate, suggesting to him that those prospects were weak. The applicant appears to have accepted that advice and made a conscious decision not to take the matter further. It was only when detained in Perth that the applicant sought assistance to press his claims.
59. The applicant then chose to pursue the merits of his claims (rather than judicial review of the Federal Magistrate’s decision) by writing to the Minister on several occasions throughout 2009 and made no effort to bring the present Application until his attempts to procure a satisfactory outcome by means of a discretionary decision from the Minister had finally been exhausted—unsuccessfully.
60. Counsel for the applicant submitted that I should not hold against the applicant his failure to move promptly because he was a victim of bad advice as well as fraud and simply did not understand that he was at risk of losing his rights should he not act swiftly in accordance with the various time limits imposed on the potential applications which he might have had.
61. The applicant gave me the impression that he well understood that there was a time limit on the lodgment of any appeal from the Federal Magistrate’s decision. That impression was confirmed by his evidence to the effect that he had, in fact, asked Mr Gao about the prospects of appeal.
62. I have made due allowance in considering the above matters for the fact that the applicant does not speak English and needs an interpreter when dealing with formal matters. I have also taken into account the fact that the applicant is undoubtedly under considerable stress at the present time.
63. However, I have come to the conclusion that, in the exercise of my discretion, the applicant has not demonstrated special reasons why I should extend the time in which he may file the foreshadowed appeal. As I see matters, I am required to weigh the various considerations to which I have referred and make a judgment as to whether the requisite special reasons exist. I am not satisfied on the material before me that they do.
64. Accordingly, I propose to dismiss the applicant’s Application for an Extension of Time within which to file his foreshadowed appeal from the Federal Magistrate’s decision of 13 March 2007 with costs.
    

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 12 March 2010