SZFOP v Minister for Immigration & Anor [2009] FMCA 1099 (17 November 2009)

Last Updated: 17 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFOP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1099

MIGRATION – Visa – Protection (Class XA) visa – application to set aside judgment – allegation of fraud – delay.

Migration Act 1958 (Cth), ss.91X, 417, 476 Federal Court Rules 2001, r.16.05

MZWOQ v Minister for Immigration [2005] FMCA 1168 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 followed

Applicant:

SZFOP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2085 of 2009

Judgment of:

Scarlett FM

Hearing dates:

22 September & 15 October 2009

Date of Last Submission:

15 October 2009

Delivered at:

Sydney

Delivered on:

17 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

No solicitor on the record

Counsel for the Respondents:

Mr Chami

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,000.00.
(3) I allow six (6) months to pay.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2085 of 2009

SZFOP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This Application started as an application for the extension of time to make an application for review of a decision of the Refugee Review Tribunal that was signed on 28th June 2002 and handed down on 23rd July 2002. However, since the Applicant has been fortunate enough to obtain representation by counsel, it has become an application to set aside a judgment of this Court under the provisions of Rule 16.05.
2. The Applicant claims that he had previously instructed a solicitor to act for him in proceedings before this Court for judicial review of the Tribunal decision and the solicitor wrongly brought about orders by consent dismissing his application. He claims fraud both by his former migration agent and his former solicitor.
3. The First Respondent, the Minister for Immigration and Citizenship, has filed a Response seeking that the application be dismissed.

Background

4. The Applicant is a citizen of Lebanon who arrived in Australia on 28th April 2000. He applied for a Protection (Class XA) on 27th July 2000. The Minister’s delegate refused the application on 8th August 2000.
5. On 31st August 2000 the Applicant applied to the Refugee Review Tribunal for review of the decision to refuse him a protection visa. He attended a hearing of the Tribunal and gave evidence on 24th June 2002. The Tribunal handed down its decision on 23rd July 2002, affirming the decision not to grant the Applicant a protection visa.
6. The Applicant brought an application in this Court in early 2005 for judicial review of the Tribunal decision, being proceedings No 204 of 2005. He attended a Directions hearing before a Registrar on 9th February 2005 and signed short minutes of order.[1] The application was listed for final hearing before Raphael FM on 10th July 2006.
7. On 12th May 2005 Mr Ben Colbron, of Ardem Legal, filed a Notice of Appearance[2] and an Amended Application[3] on behalf of the Applicant. Mr Colbron wrote to the Minister’s solicitors the next day, enclosing by way of service sealed copies of those documents.[4]
8. On 22nd August 2005, Mr Colbron forwarded a Minute of Proposed Consent Orders signed by the Applicant to the Minister’s solicitors.[5] The following day, the Minute of consent orders was filed at the Court. The Court ordered by consent, that:
   1. The Application be dismissed.
   2. The Applicant pay the Respondent’s costs agreed in the sum of $1,800.00.
9. The Applicant made various approaches to the Minister for Immigration for ministerial intervention under the provisions of s.417 of the Migration Act, both before the commencement of the proceedings in 2005 and their termination in August that same year. The more recent requests were made to the Hon. Kevin Andrews in 2007 and the Hon. Senator Evans in 2008.
10. On 6th February 2009 the Acting Director of the NSW Refugee and Humanitarian Branch of Department of Immigration and Citizenship wrote to the Applicant advising him that his application for Ministerial intervention had been unsuccessful. A further request from the Applicant’s brother-in-law, Mr Gregg Ritchie, asking the Minister to reconsider the decision, was also unsuccessful. Mr Ritchie was informed of that decision in a letter from the Department dated 24th March 2009.

Application to the Court

11. The Applicant commenced these proceedings by filing an application and an affidavit in support on 26th August 2009.
12. The Applicant gave evidence and was cross examined by Mr Chami, who appeared for the Minister. He also relied on an affidavit of Stephen Joseph Stanton, a barrister.
13. It was the Applicant’s evidence that after the Refugee Review Tribunal had affirmed the decision not to grant him a protection visa, he made the first of his applications for Ministerial intervention under s.417 of the Act. After the then Minister, Senator Vanstone, declined to intervene in 2003, he approached a migration agent, Polina Domburga.[6] He deposed that he paid her an amount of $15,000.00 and she prepared the documents for his original application to the Court.
14. Some time later Ms Domburga closed her office and “disappeared”.[7]
15. It is the Applicant’s evidence that he was later approached by Mr Colbron who offered to continue with the case, but asked him for more money. When the Applicant declined to pay him any more, the Applicant said that Mr Colbron told him:
    • If you want to sack me you have to sign these documents.[8]
16. The Applicant deposed that he signed the documents although he could not read English at the time. It was only later that he found out that his case had been dismissed and he had to pay $1,800.00 costs.
17. In his oral evidence the Applicant agreed that the signature on the minute of Consent Orders was his signature. He said that he signed “lots of papers”[9] but he did not know what they were or why he signed them. He asserted that he had no intention of discontinuing his court case.
18. In cross examination the Applicant said that he attended a meeting with Mr Colbron at which Mr Stanton was also present.
19. Mr Stanton deposed in his affidavit sworn on 14th October 2009 that he had a meeting with the Applicant who told him that Ms Domburga had closed her office and left the country and Mr Colbron had taken over his case. He rang Mr Colbron to arrange a meeting. He deposed at paragraphs 7 and 8 of his affidavit:
    • It is within my recollection that I spoke to Mr Colbron either at that time or subsequently and I told him that I intended to report Ms Doumborga and him to the Migration Agents Registration Authority for taking money under what I considered to be false pretences. I said to him with words to the effect that they had induced a belief in the client that they were acting and prosecuting his application for a refugee visa but in truth and in reality from what I had seen they were doing nothing to ensure that he was going to have his case considered in a conventional manner.
    • I further explained to Mr Colbron with words to the effect that he should either refund the money to (the applicant[10]) or put the matter in the hands of a migration agent who would properly apply him or herself to the task at hand.[11]
20. Mr Stanton was not required for cross-examination.

Submissions on Behalf of the Applicant

21. Mr Ower of counsel, who appeared for the Applicant, submitted that the applicant would rely on Rule 16.05 of the Federal Magistrates Court Rules, which provide, relevantly:
    • (2) The Court may vary or set aside its judgment or order after it has been entered if:
      • (a) the order is made in the absence of a party; or
      • (b) the order has been obtained by fraud;...
22. Mr Ower conceded that fraud had not been particularised with sufficient clarity and it had not been proved. However, the Applicant had given evidence that he did not give instructions to discontinue the proceedings, notwithstanding the fact that he had signed the minute of Consent Orders. It was clear, he submitted, that the Applicant had not been happy about the way his matter had been handled, either by Ms Domburga or Mr Colbron. He referred the Court to the decision of McInnis FM in MZWOQ v Minister for Immigration[12].
23. Whilst the Court has a discretion to refuse relief if the applicant has been guilty of unwarranted and unsatisfactorily explained delay, here was a case where the Applicant had made several attempts to obtain a more favourable decision by applying for the exercise of Ministerial discretion under s.417 of the Act.

Submissions on Behalf of the First Respondent

24. Mr Chami for the Minister submitted that the Applicant had not established fraud. It defied credibility that Mr Colbron would have filed an amended application on behalf of the Applicant without instructions. If he was no longer instructed to act for the Applicant, all that needed to be done was file a Notice of Ceasing to Act. The Applicant had given evidence that he had signed the consent orders. A mere misunderstanding will not amount to fraud.
25. Further, Mr Chami submitted that the Applicant had not established that he had an arguable case for review of the Tribunal decision, even though he had claimed that he had:
    • I had every intention to continue my court case because I had an arguable case especially because the interpreter provided to me was competent in Arabic whose English and dialect was Egyptian not Lebanese.[13]
26. Again, the Applicant had been guilty of delay in bringing this application, as the order dismissing the application was made in August 2005 and this application was not commenced until August 2009.

Conclusions

27. Rule 16.05(2) provides that the Court may set aside an order if it was obtained by fraud. However, the evidence here does not establish fraud on the part of the solicitor. True it is that the Applicant has a complaint about the activities of his former migration agent, Ms Domburga, but there is no evidence that she had anything to do with the consent order that was made in August 2005. By then, she had closed her office and decamped.
28. The Applicant’s evidence is that he told Mr Colbron that he did not wish to instruct him to continue with his court case but he gave no instructions to him to withdraw the application. Why, then, would Mr Colbron go to the trouble of arranging for the Applicant to sign consent orders? If his instructions were withdrawn, all that needed to be done was to file a Notice of Ceasing to Act.
29. Clearly, both the Applicant and Mr Stanton had formed a dim view of the way that Mr Colbron had handled the matter up till that time, but that falls far short of establishing that Mr Colbron had acted without instructions to bring the Applicant’s case to an end.
30. The Applicant has not established that, even if the earlier orders of this
    Court were set aside, he would have an arguable case. He has made an assertion that there was some failure on the part of the interpreter at the Tribunal hearing, but he has provided no evidence of that. Had his application proceeded to a final hearing, the Applicant would have faced the difficulty in explaining why he had delayed bringing his application for judicial review of a Tribunal decision handed down on 23rd July 2002. His application for review (SYG 204 of 2005) was not filed until early in 2005.
31. Even if I were to be satisfied that the Applicant had an arguable case, he has not provided a satisfactory explanation for his delay of 4 years in bringing this application. The application was dismissed by consent in August 2005. The application before the Court was not filed until 26th August 2009.
32. True it is that the Applicant has made several applications for Ministerial intervention since then, without success, but an application for intervention by the Minister is not a satisfactory explanation for a lengthy delay in commencing proceedings (Vu v Minister for Immigration and Citizenship[14] at [32]).
33. Here, there is a delay of almost exactly four years in applying to set aside the orders. There is no satisfactory explanation for that delay. Even if the Applicant had otherwise established that there was a good reason why the orders should be set aside, the lengthy delay would be sufficient to justify a discretionary refusal of relief.
34. However, the Applicant has not proved his case. The application will be dismissed with costs.

I certify that the preceding 34Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-fourthirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 9 November 2009

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[1] A copy of the Short Minutes of Order is annexed to the Applicant’s affidavit filed on 21st September 2009.
[2] A copy of the Notice of Appearance is annexed to the affidavit of Katrina Talde Morales Dunn, solicitor, filed in Court on 22nd September 2009.
[3] A copy of the Amended Application is annexed to the affidavit of Katrina Talde Morales Dunn filed on 9th September 2009.
[4] A copy of the letter is annexed to the affidavit of K.T.M. Dunn of 22nd September 2009.
[5] A copy of the letter and the signed Minute form Annexure “B” to the affidavit of K.T.M. Dunn of 22nd September 2009.
[6] Spelt “Paulina Doumborga” in the applicant’s affidavit of 28th August 2009 and “Pauline Doumborga” in the applicant’s affidavit of 21st September 2009
[7] Applicant’s affidavits 28th August 2009 at [4] and 21st September 2009 [3]
[8] Applicant’s affidavit of 21st September 2009 at [4]
[9] Transcript of evidence 22 September 2009 page 18
[10] Name not published to comply with Migration Act 1958 s 91X)
[11] Affidavit of Stephen Joseph Stanton 14 October 2009 at paragraphs [7] and [8]
[12] [2007] FMCA 1168
[13] Applicant’s affidavit 21.9.2009 at [7]
[14] [2008] FCAFC 59