SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 (5 June 2009)

ADMINISTRATIVE LAW – appeal from a Federal Magistrate’s decision to refuse to issue the constitutional writs which had been claimed on the basis of fraud allegedly perpetrated on the Refugee Review Tribunal – crucial findings made by the Magistrate not supported by the evidence and in error – insufficient basis for making any finding on appeal in respect of the alleged fraud – Magistrate’s decision set aside – matter remitted to the Federal Magistrates Court for rehearing

Migration Act 1958 (Cth), s 424
Federal Court Rules, Order 80

SZMGX v Minister for Immigration and Citizenship [2008] FMCA 1529 set aside
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501, (2008) 100 ALD 443 cited
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 cited

SZMGX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1961 of 2008

BENNETT, REEVES AND FOSTER JJ
5 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1961 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGES:	BENNETT, REEVES AND FOSTER JJ
DATE OF ORDER:	5 JUNE 2009
WHERE MADE:	SYDNEY

2. The orders made by Federal Magistrate Scarlett on 20 November 2008 be set aside.

4. The first respondent pay the appellant’s costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1961 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGES:	BENNETT, REEVES AND FOSTER JJ
DATE:	5 JUNE 2009
PLACE:	SYDNEY

1 The appellant is a citizen of China who claims to fear persecution in that country because she is a practitioner of Falun Gong. After her application for a protection (class XA) visa (protection visa) was refused by a delegate of the first respondent (the Minister), the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision. The Tribunal wrote to the appellant at the postal address provided in her protection visa application and received no response. The Tribunal then wrote a letter in compliance with s 424 of the Migration Act 1958 (Cth). The appellant did not appear before the Tribunal on the date nominated for the hearing. As the appellant did not attend the hearing in order to allow her claims to be tested, the Tribunal held that the appellant had failed to support her assertions of persecution and affirmed the decision of the delegate not to grant a protection visa to the appellant.

2 There is no dispute as to the course of conduct by the Tribunal. The appellant submits that the actions of her migration agent constituted a fraud on the Tribunal within the principles discussed in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189, with the consequence that the Tribunal’s decision was vitiated by that fraud. In the Federal Magistrates Court, she sought orders in the nature of certiorari, prohibition and mandamus.

3 The appellant’s evidence in the Federal Magistrates Court may be summarised as follows:

(a) She confirmed that the address for correspondence shown on her protection visa application was that of her previous migration agent, Jian Min Zhou.

(b) The appellant said that Jian Min Zhou helped her apply for a working visa for which she paid him. She trusted him "deeply" and he wrote all documents on her behalf.

(c) After she had paid him $600 and then $300, he asked her to sign some documents written in English, which she signed although she did not understand them.

(d) When he telephoned her to tell her that her protection visa application had been denied, she asked how that had happened since she had not yet been to the Tribunal.

(e) The residential address shown on the protection visa application was her residential address and not the address of Jack Zhang (a person named in the application as having assisted the appellant to complete the application) or Jian Min Zhou. She did not recognise the contact telephone number. The typed statement setting out the basis for her claims for protection which formed part of her protection visa application was false in some important respects.

(f) In her affidavit and oral evidence, the appellant said that she feared persecution as a practitioner of Falun Gong in China and, for that reason, had applied for political refuge in Australia. She had also wanted a work permit, which she had apparently obtained through Jian Min Zhou.

(g) The appellant had then gone to another migration agent who had helped her "writing up one piece of document".

(i) The appellant had entered Australia on a business (short stay) visa (business visa) on the basis that she was working as a creative director. She had stated in her application for that visa that the reason she wanted to come to Australia was to participate in an event at the Sydney Opera House.

(j) When asked about the false information in the business visa application, the appellant said that all that she had done was just to pay money to "get all this done".

(k) When asked whether it was the case that she was not troubled by the fact that she did not really know what was being put to the Department of Immigration and Citizenship on her behalf, the appellant said that she did not know what had been written by Jian Min Zhou.

(l) She had personally signed the application for a protection visa and then the application for review of the decision of the delegate not to grant the visa.

(n) There is no listing for any migration agent called Jian Min Zhou or Jack Zhang.

4 The Federal Magistrate recorded the appellant’s submissions that Jian Min Zhou did not mention a Tribunal hearing to her, that he kept that information from her dishonestly and that he took money from her without informing her of what he was doing on her behalf (SZMGX v Minister for Immigration and Citizenship [2008] FMCA 1529 at [31]).

5 The Federal Magistrate concluded from the appellant’s evidence that her main aim, at least at first, was to obtain a work permit. His Honour noted that the appellant conceded that she did not know what was in her application to the Tribunal. His Honour was not satisfied that the appellant had ever consciously made an application for a protection visa. For this reason, his Honour concluded that the appellant had not made a valid application to the Tribunal and that, accordingly, the Tribunal had had no jurisdiction to conduct a review of the delegate’s decision. In his Honour’s view, this was not a case where fraud on the Tribunal had caused the Tribunal’s function to miscarry. His Honour also found that the appellant had never had any intention of attending the Tribunal hearing. In addition, his Honour made an express finding that the appellant was aware that what Jian Min Zhou had written in her protection visa application was not the truth. He concluded that the entire process was dishonest and, if not a fraud, was a scam designed to obtain a visa to allow the appellant to stay in Australia and to have permission to work here.

6 His Honour concluded that there was no jurisdictional error affecting the Tribunal’s decision.

7 The appellant was represented by Counsel pro bono pursuant to Order 80 of the Federal Court Rules.

8 The appellant submitted that the Federal Magistrate was in error in respect of a number of findings. In particular, contrary to those findings, the appellant submitted that:

(a) The appellant had consciously made an application for a protection visa and had been conscious of the fact that Jian Min Zhou proposed to include in the application the fact that she was a Falun Gong practitioner.

(b) The appellant was not aware of the contents of her application for a protection visa or that the application contained false material.

(c) The process undertaken by the appellant after obtaining her bridging visa was not for the purpose of obtaining a visa to allow her to stay in Australia to be able to work but was designed to secure a protection visa (which, of course, would allow her to stay in Australia and be able to work).

(f) There was no proper basis for the Federal Magistrate to have made a finding of dishonesty on the part of the appellant.

(g) The incorrect information in the appellant’s application for a protection visa was not supplied by the appellant. At one point in her evidence, she said that she had only told Jian Min Zhou the bare fact that she practised Falun Gong. Not all of the elaboration of abuse said to have been suffered in China set out in the typed statement which accompanied her protection visa application came from the appellant. However, the appellant had told Jian Min Zhou not only that she had practised Falun Gong in China but also that, in China, Falun Gong people were "severely persecuted" and that she had been locked up for three months.

9 The appellant submitted that a false case had been made to the Department on her behalf and put before the Tribunal on her behalf. She said that that false case had been concocted and advanced by Jian Min Zhou without her knowledge or approval. The Tribunal had relied on the false information put before it on her behalf in arriving at its decision to affirm the delegate’s decision not to grant the appellant a protection visa. Through the fraud of her agent the appellant was denied the right to present her case to the Tribunal. The appellant said that the concocted material was placed before the Tribunal without her knowledge by a person whom she believed to be a migration agent and that she did not collude in the fraud practised on the Tribunal.

10 In answer to the Minister’s submission that the evidence did not establish fraud by the agent in the sense of a deliberate attempt for improper motives to deceive the appellant and prevent her from appearing before the Tribunal, Counsel for the appellant submitted that Jian Min Zhou "had every reason deliberately to conceal from the appellant the fact that the [Tribunal] had invited her to attend a hearing". This is an inference which the appellant wishes the Court to draw from the fact that Jian Min Zhou had submitted the concocted material, had led the appellant to believe that he was a migration agent and had taken money from the appellant for what she believed to have been the provision of legitimate migration agency services.

11 The appellant accepted that, if she had been wholly indifferent to the actions of Jian Min Zhou, or if she had simply left it to him to complete and submit the visa application form, she probably could not now complain about his actions.

12 The Minister accepted that the Federal Magistrate erred in concluding that the appellant did not make a valid application to the Tribunal. However, it was submitted on behalf of the Minister that the Tribunal’s decision is nonetheless valid. In his Notice of Contention, the Minister contended that there was a valid application for review before the Tribunal and that the Tribunal’s decision was not vitiated by fraud or jurisdictional error. Further, it was submitted on behalf of the Minister that the circumstances that led to the appellant not presenting her case to the Tribunal did not amount to fraud in the sense explained in SZFDE [2007] HCA 35; 232 CLR 189.

13 In summary, both parties agreed that the Federal Magistrate erred by making several findings that were not supported by the evidence. Perhaps the most damaging of these was the finding that the appellant knew that her migration agent had advanced false claims on her behalf in her protection visa application and subsequently to the Tribunal. That finding was based upon several answers given by the appellant at the hearing below. In our view, those answers could not and did not support the finding which the Federal Magistrate made by reference to them.

14 Both parties also submitted that this Court should make findings based upon the evidence as it stood before the Federal Magistrate – the appellant urging a finding that the Tribunal’s decision was affected by fraud and the Minister pressing for a finding that it was not. It is necessary for us to examine the evidence below in order to determine whether this Court can make either finding.

Conclusions drawn from the Appellant’s Evidence in the Federal Magistrates Court

(a) The appellant was aware that she was lodging an application for a protection visa.

(b) She paid a person whom she believed was a migration agent to prepare the necessary documentation.

(c) She signed documents that he gave her on two occasions in relation to her applications and in order to obtain a work permit. Those documents included the protection visa application and the application to the Tribunal for a review of the delegate’s decision.

(d) She did not know what was in the documents. The documents were in English. Most probably she did not ask about their content. She trusted the migration agent to reflect her instructions in those documents and not to make false statements in them.

(e) She had also paid money and signed documentation to obtain a business visa to enter Australia without checking its contents and ascertaining the truth of its contents.

16 The evidence does not establish that the appellant knew that incorrect information was included in her applications. Nor does it establish that she never intended to attend the Tribunal hearing.

17 The evidence establishes that the appellant was aware generally of the possibility of claiming fear of persecution as a basis for staying in Australia and that she had told the agent that the basis of such claimed fear on her part was her practice of Falun Gong. She was aware that the documents that she signed were for the purposes of enabling her to stay in Australia. She was aware of the fact that, as a result of lodging those documents, she would have a hearing before the Tribunal.

18 The Tribunal complied with its obligations by inviting the appellant to attend a hearing. She did not receive that invitation. The reason for this could be because it was sent to an address that was the agent’s address and not the appellant’s current address or because the agent did not pass on correspondence to her.

19 The appellant’s evidence before the Federal Magistrate does not justify drawing a conclusion one way or the other as to whether she had actual knowledge of the contents of her protection visa application. Nor is there a satisfactory basis for imputing to her knowledge of the contents of that application. The evidence of what she told Jian Min Zhou about her practice of Falun Gong and experience in China is incomplete. On one occasion she said that she only told him that she practised Falun Gong. On another occasion she asserted that she told him that she had been persecuted for her beliefs and had been imprisoned for three months.

20 The appellant was not represented before the Federal Magistrate. She does not speak, read or write English. At the hearing before the Federal Magistrate, she was asked some questions by his Honour and then cross-examined by the Minister’s solicitor. The questions put to the appellant do not seem to have been directed to the extent of her instructions to Jian Min Zhou. It was not directly put to her that she knew that some of the material in her protection visa application was false. She was not asked directly why she signed a statement of some two and a half pages if the only information she gave the "agent" was her occupation and certain information about her experiences in China which information was limited to the fact that she practised Falun Gong, that, in China, Falun Gong practitioners were severely persecuted and that she had been locked up for three months. The statement submitted in support of her protection visa application did claim that she was a Falun Gong practitioner and that she had been imprisoned for three months. She did not give precise evidence as to what was true and what was false in that statement.

21 The evidence was not sufficient and does not enable a conclusion to be drawn one way or the other as to whether the appellant was complicit in the submission of false information or whether she was utterly indifferent as to whether the information supplied to the Tribunal was correct. The Minister accepted that, if the appellant did not know what the statement contained, it would not be open to us to find that the appellant was actually aware that the statement contained false information.

22 The evidence as it presently stands does not establish fraud in the sense of a deliberate attempt by the agent for improper motives to deceive the appellant and to prevent her from attending the Tribunal hearing. There is no evidence at the moment that Jian Min Zhou ever suggested to the appellant that she should not attend. There is no proper basis at present for an inference to be drawn that the failure on the part of the agent to pass on the Tribunal invitation to the appellant or otherwise to inform her of the Tribunal hearing was conduct intended to deceive her or to protect the agent’s interests.

23 It is accepted by the appellant and the Minister that most, if not all, of the crucial findings and conclusions made by the Federal Magistrate were not supported by the evidence before him and were in error. The decision of the Federal Magistrate cannot stand. The appeal should be allowed.

24 The evidence does not enable this Court, on appeal, to draw any definitive conclusion as to the appellant’s knowledge of or indifference to the contents of her application for a protection visa and her subsequent application to the Tribunal. The evidence does not enable this Court to draw a conclusion one way or the other as to whether the appellant made a decision to delegate the completion of that application, including the statement in support, to a person whom she believed was a migration agent without caring whether or not that person wrote the truth.

25 The evidence does not enable this Court to make a finding of fraud on the Tribunal by the migration agent in the SZFDE [2007] HCA 35; 232 CLR 189 sense. The simple fact of failure to inform or bare negligence or inadvertence will not necessarily give rise to fraud on the Tribunal (Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501, (2008) 100 ALD 443).

26 The appropriate course, therefore, is to set aside the Federal Magistrate’s decision and to remit the matter to the Federal Magistrates Court for rehearing. This will give both the appellant and the Minister a full and fair opportunity to present the real case that each of them seeks to make before that Court in respect of the alleged frauds said to have been perpetrated on the Tribunal by Jian Min Zhou. We will make orders accordingly.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett, Reeves and Foster.

Counsel for the Appellant:	Mr N Manousaridis with Mr HPT Bevan (Pro Bono)

Counsel for the First Respondent:	Mr GR Kennett

Solicitor for the First Respondent:	Australian Government Solicitor

	The Second Respondent was not represented and did not appear

Date of Hearing:	25 May 2009

Date of Judgment:	5 June 2009

Federal Court of Australia - Full Court

SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 (5 June 2009)