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SZFNX v Minister for Immigration & Anor [2009] FMCA 1159 (30 November 2009)

Last Updated: 1 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFNX v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Protection visa application – alleged fraud by migration agent – whether fraud – whether fraud on Refugee Review Tribunal.

MIGRATION – Protection visa application – letter of invitation – whether sent.

EVIDENCE – Standard of proof – burden of proof where fraud and stultification of statutory tribunal’s processes alleged – gravity of issue.

Evidence Act 1995 (Cth), ss.69, 140(1) and (2), 171, 182
Migration Act 1958 (Cth), ss.65, 91X, 425, 425A,426A, 441A(4), 441C(4)
Migration Regulations 1994 (Cth), reg.4.35D(b)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17
Minister for Immigration and Multicultural Affairs v SZFDE & Ors (2006) 154 FCR 365; [2006] FCAFC 142
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69
Re Dellow’s Will Trusts [1964] 1 WLR 451
Re Gardner; Ex parte RJ Gardner Pty Ltd (1967) 13 FLR 345
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110
SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2007] HCATrans 211
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZFNX v Minister for Immigration & Anor [2007] FMCA 47
SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211; [2008] FCA 600
SZIRS v Minister for Immigration & Citizenship [2007] FMCA 214
SZLZE v Minister for Immigration & Anor [2008] FMCA 560
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134
VSAF of 2003 & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 757

Applicant:
SZFNX

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 182 of 2005

Judgment of:
Lucev FM

Hearing dates:
3 June & 25 August 2008

Date of Last Submission:
25 August 2008

Delivered at:
Perth

Delivered on:
30 November 2009

REPRESENTATION

Counsel for the Applicant:
Dr J Cameron (pro bono)

Counsel for the Respondents:
Ms E Needham

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) That the application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

SYG 182 of 2005

SZFNX

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant asserts a fraud on the Refugee Review Tribunal[1] by a migration agent acting on the applicant’s behalf sufficient to vitiate the Tribunal’s decision.
  2. Initially, the migration agent said he had never met the applicant, nor acted as his migration agent. At hearing he conceded he had met the applicant, but maintained that he had never met the applicant in his capacity as a migration agent, nor acted as the applicant’s migration agent.[2]
  3. The applicant also argued that he was not given an invitation to the hearing before the Tribunal, contrary to s.425 of the Migration Act 1958 (Cth).[3]

The application alleging fraud on the Tribunal

Procedural history

  1. The applicant arrived in Australia on 30 August 2004.[4]
  2. The applicant’s original claims for a protection visa are contained in his protection visa application made on 18 September 2004.[5] A citizen of China, he claimed:
    1. to have been a Falun Gong practitioner and a leader in the practice of Falun Gong in his local district;
    2. that he had been detained by police for almost one month, tortured and required to declare he was not a Falun Gong practitioner prior to being released; and
    1. that when he was released the company for which he worked was “noticed by the authority to reduce my salary”.[6]
  3. On 8 November 2004, the Tribunal apparently sent the applicant by prepaid post to the address provided in the application for review,[7] an invitation to attend a hearing on 2 December 2004.[8]
  4. The address for service, and the address to which the letter was sent, was apparently the last address provided to the Tribunal by the applicant.[9]
  5. The applicant did not respond to the invitation, nor did he attend the hearing under s.426A of the Migration Act. The Tribunal made a decision on the review, without the applicant appearing.[10] The Tribunal found that the applicant’s claims were mere assertions, lacking in essential detail.[11] The Tribunal was not satisfied by the applicant’s claims and affirmed the delegate’s decision not to grant the applicant a protection visa.[12]
  6. By an application to this Court filed on 20 January 2005 and a further amended application dated 7 June 2006 filed on 20 October 2006 the applicant seeks orders that the decision of the Tribunal made on 3 December 2004 and handed down on 22 December 2004[13] be quashed and the Tribunal be required to rehear the matter.
  7. Because of the way in which this matter found its way to this point it is necessary to set out in some detail the history of the application.
  8. In the application first lodged, and signed by the applicant, on 20 January 2005 the grounds were that:
  9. The application also sets out the applicant’s:
    1. address for service as “148/422 Pitt Street, Sydney, NSW 2000”; and
    2. address as “45 Simpson Street, Auburn, NSW 2144”.
  10. An amended application signed by the applicant was filed on 27 April 2005 with amended grounds. On 29 June 2006 the applicant filed submissions[14] attached to which was a proposed further amended application. Leave to file a further amended application dated 7 June 2006 was granted when the matter finally came on for hearing on 20 October 2006.[15] Consequently, the grounds were amended to provide as follows:
  11. The June 2006 Submissions set out the background as asserted by the applicant, and included the following:
    1. that it appeared that a migration agent assisted the applicant in preparing the application to the Tribunal in November 2004;
    2. the application contained an address – “160/422 Pitt Street, Sydney, NSW 2000” – which was not the applicant’s address;
    1. the Tribunal sent the applicant a letter inviting him to attend a hearing on 2 December 2004;
    1. the applicant did not attend the hearing and was unaware until later that there was a Tribunal hearing in December 2004.[16]
  12. In the June 2006 Submissions the applicant says that two issues arise, namely:
  13. It was the latter issue which was addressed and determined in this Court in SZNFX v Minister for Immigration & Anor.[17] As noted in SZNFX v Minister for Immigration and Citizenship & Anor,[18] no findings were made in SZFNX (No. 1) as to whether Mr Lu, a migration agent, “had been fraudulent in his dealings with the appellant [applicant] and whether that had affected the process prescribed in the [Migration] Act.”[19]
  14. On 29 June 2007 this Court dismissed the applicant’s application for judicial review of the Tribunal Decision. In SZFNX (No. 1) this Court summarised the facts as follows:
  15. The Court went on to refer to the judgment of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SZFDE & Ors[21] as follows:
  16. In conclusion, the Court found that:
  17. SZFNX (No. 1) was appealed. In SZFNX – Federal Court the Federal Court ordered that this Court’s orders in SZFNX (No. 1) be set aside, and that the matter be remitted to this Court for rehearing in accordance with the reasons in SZFNX – Federal Court.
  18. SZFNX – Federal Court was decided after the handing down of the High Court of Australia’s judgment on an appeal from SZFDE – Federal Court.[24] The effect of SZFDE – High Court is summarised in SZFNX – Federal Court as follows:
  19. In SZFNX – Federal Court the Federal Court summarised the substance of SZFDE – High Court as follows:
  20. The Federal Court in SZFNX – Federal Court concluded that:
  21. The rehearing took place on 3 June and 25 August 2008.[28]
  22. In closing submissions on the first day of the Second Hearing, Counsel for the applicant raised the alleged failure to provide the applicant with a letter of invitation to the hearing of his review application before the Tribunal.[29] Following the Court reserving judgment at the end of the first day of the Second Hearing, the Minister questioned whether the applicant needed leave to amend the grounds of application concerning the Tribunal Hearing Invitation Letter argument. Ultimately, the matter was resolved by the parties, and when the Second Hearing was called on for a second day no objection was taken to the grounds of the application being further amended as follows:
  23. The applicant then took no objection to the re-opening of the case by the Minister.[31] Accordingly, the Minister filed a further affidavit from John Willoughby-Thomas, the District Registrar of the Migration and Refugee Review Tribunals in Sydney.[32]
  24. In considering the matter the Court has dealt first with the alternative ground (ground two) of the further amended grounds of the application, for that is the way in which:
    1. the matter was argued; and
    2. it is most convenient to consider the issues.

Evidence at hearing

Evidence of the applicant

Affidavit of 3 May 2006

  1. In an affidavit affirmed 3 May 2006[33] accompanied by a certificate of an interpreter, the applicant said that:
    1. he arrived in Sydney on 30 August 2004;[34]
    2. he was a Falun Gong practitioner in China, and therefore feared returning to China;[35]
    1. he paid Mr Lu two amounts totalling $750, which are described as “Service Fee” on the two receipts, one for $400 (dated 18 September 2004) and the other for $350 (dated 30 September 2004) respectively, but which contain no verified or verifiable detail and indecipherable signatures;[36]
    1. it was his signature which appeared twice on the protection visa application;[37] including the signature to a declaration that the statements therein are believed to be true;
    2. the residential address “160/422 Pitt Street, Sydney” was not an address he recognised;
    3. when he arrived in Sydney he “spent a few weeks living in an apartment in the city ... with Songtao Lu” but that he did not know the address of the apartment;[38]
    4. he then moved to and “lived in Auburn for about a year”, before moving to Cabramatta in “about June 2005”;[39]
    5. a paragraph in his protection visa application to the effect that he had:
      1. been detained by the police for almost a month in the Tianjin Detention Centre;
      1. been tortured; and
      2. been forced to declare that he would not practise Falun Gong;

was not correct and that he never gave that information to Mr Lu, and did not know that this information was in his protection visa application;[40]

  1. he occasionally came to Mr Lu’s office over the next few months to sign documents relating to his protection visa application, but that Mr Lu did not tell him how his protection visa application was progressing;[41]
  1. he signed the application for review of the Delegate’s Decision, which again contained the address “160/422 Pitt Street, Sydney” which was not at that time (November 2004) his address, and not an address he told Mr Lu he had ever lived at;[42] and
  2. at the time of the Tribunal hearing in December 2004 he was unaware of the hearing, and he had not:
    1. received a letter from the Tribunal concerning the hearing; or
    2. been told about the hearing by Mr Lu,

but that if he had been aware of the hearing, he would have attended, and “would have told the Tribunal that I was a Falun Gong practitioner in China and I feared persecution if I am forced to return to China.”[43]

  1. The Applicant’s First Affidavit is accompanied by an interpreter’s certificate indicating that before the applicant signed the affidavit it had been read to him and that he understood it.

Affidavit of 8 May 2008

  1. In an affidavit affirmed by the applicant on 8 May 2008,[44] again accompanied by an interpreter’s certificate, the applicant said that:
    1. the Applicant’s First Affidavit had again been translated to him, and that it contained errors, and in particular the claim in paragraphs 2 and 12 of the Applicant’s First Affidavit that he was a Falun Gong practitioner was not correct, and that he only became a Falun Gong practitioner after he came to Australia;[45]
    2. in 1999:
      1. he was arrested, held, interrogated and assaulted over a period of one week as a consequence of, in his employment as a taxi driver, taking some passengers, who were Falun Gong practitioners, to Beijing, and that he subsequently had to report weekly to police for two and a half months, account for his movements and deny any involvement with Falun Gong; and
      2. he was suspended from his employment as a taxi driver for a month;[46]
    1. on a night, but at a time not specified, another taxi driver confessed he was a police spy, and said that the applicant was suspected of being a Falun Gong practitioner, following which the applicant “felt” that he “was under constant surveillance”;[47]
    1. he was not a Falun Gong practitioner, but has practised Falun Gong since coming to Australia;[48]
    2. he was not familiar with the “422 Pitt Street, Sydney” address, and that the addresses given “by ... Mr Lu” do not exist, but there is a building the address of which is 420-426 Pitt Street, Haymarket, which has recently been converted to strata title units, numbered up to unit 134, and having been shown a photograph of that building he said it was not a building in which he has ever stayed;[49]
    3. that after his arrival in Sydney he lived in a run-down flat in a three storey building found for him by a Mr Zhang, who lived in Sydney, and who had been his neighbour in China, but who was not called to give evidence for the applicant;[50]
    4. he lived alone in the flat, “except for 2-3 days when Mr Lu stayed there”;[51]
    5. he would have attended the Tribunal hearing had he been told about it;[52]
    6. he would have told the Tribunal that he was not a Falun Gong practitioner in China, but rather suspected of being one, and treated as one on two occasions;[53] and
    7. he has been publicly associated with Falun Gong since coming to Australia by attending Sunday vigils, but has not done so for the purpose of improving his claim for a protection visa.[54]

Affidavit of 29 May 2008

  1. A third affidavit was affirmed by the applicant on 29 May 2008,[55] also accompanied by the certificate of an interpreter.
  2. In the Applicant’s Third Affidavit he says:
    1. that when he was first introduced to Mr Lu, Mr Lu gave him a business card, which he lost, but which was “slightly different” to a business card annexed which had been obtained by a friend of the applicant from Beijing, in that the word “Manager” did not appear under Mr Lu’s name;[56]
    2. the annexed card describes Mr Lu as manager of the Sydney Migration Education Centre, for which the address given is 213A Dixon House, 413-415 Sussex Street, Sydney”;[57]
    1. the Migration Agents Registration Authority Register of Agents shows that Mr Lu is registered in relation to the business name “Sydney Migration Education Centre”, at the address referred to in the previous sub-paragraph, and that his relation to the business is shown as that of “Sole trader owner without employee”;[58]
    1. annexes a copy of an Australia Post Application to Redirect Mail from an “OLD” to a “NEW” mailing address;[59] and
    2. says that he paid a further $1000 to Mr Lu for the purposes of his application to this Court at a time (in January 2005) when he had applied for and been granted a fee exemption, and although he had signed a fee exemption form, the contents had not been translated for him, and he was unaware that he had been granted an exemption.[60]

Applicant’s oral evidence at hearing

  1. The applicant also gave some oral evidence at hearing. That evidence included:
    1. that he had met Mr Lu eight or nine times, including four times at his office;[61] and
    2. a very general description of how to get to Mr Lu’s office on the third floor of a building via an escalator, and then of the office itself in more detail;[62]
    1. whilst at his first residence in Australia (the flat organised by Mr Zhang) he stayed two weeks and met Mr Lu:
      1. at the flat twice for a period of one to two hours on each occasion; and
      2. three times in Sydney’s China Town.[63]
    1. described Mr Lu as:
      1. having a southern Chinese accent;
      2. being about 35-36 years old;
      3. being about 5’ 10” or 5’ 11” tall (or 178-180 centimetres);
      4. having a big, solid build; and
      5. normal hair.[64]
  2. During cross-examination the applicant gave conflicting further evidence about Mr Lu “living” at the flat, namely:
    1. that Mr Lu “didn’t live there”;[65]
    2. that the applicant was “not sure” if Mr Lu “stayed in the other room or he ... left”;[66]
    1. that Mr Lu stayed in the applicant’s bedroom for one to two hours, and then went to the other room, but the applicant did not know how long Mr Lu stayed in the other room;[67] and
    1. Mr Lu did not have his breakfast or dinner at the flat;[68]
  3. Under cross-examination the applicant confirmed that:
    1. he had been four times to Mr Lu’s office, including an occasion in which he and Mr Lu had gone to the Department to “apply for bridging visa”;[69] and
    2. the business card attached to the Applicant’s First Affidavit was obtained for him by a Mr Kong from Beijing who went to Mr Lu’s office, because “when I prepare this affidavit I need to attach card, so my friend get one from his office”.[70]
  4. The applicant was challenged in cross-examination as to the description he gave of Mr Lu’s office and denied a suggestion that the description of Mr Lu and the office had been obtained from others.[71] The applicant said he had been to Mr Lu’s office, and that in order to do so he had taken a train from Auburn to Central Station and walked to Dixon Street, and “went up the lift, to the 3rd floor”.[72]
  5. The applicant said he had difficulty recollecting when he ceased living in Auburn, but said it was about four months after his arrival in Australia.[73]
  6. The applicant also said that he saw Mr Lu on three occasions when distributing Falun Gong information in Chinatown, but that he only spoke to him on one of those occasions.[74]
  7. The applicant said that although all three of his affidavits were translated for him, the Applicant’s First Affidavit and the Applicant’s Second Affidavit were translated orally only, whereas the Applicant’s Third Affidavit was also translated in writing for him.[75]
  8. The applicant was further cross-examined about when he moved to Auburn. When it was put to him that he had earlier said that he stayed there for four months or about four months he said that it was “over four months.”[76] He went on to say that he could not remember exactly which months but that it was after Chinese New Year and “it might be in March” [2005].[77]
  9. When it was put to him that he had previously said that he lived there for about a year,[78] he said that he could not remember. Then he said “It should be less than 1 year ... sometimes in winter ... it is in March [2005]”.[79] He was then asked when he moved to Cabramatta, and said that it was “when the weather is cold.”[80] When asked whether that was in June 2005 he said that he had to “clarify something”.[81] Precisely when he moved to Cabramatta was not resolved, but the applicant went on to say that, as to the time that he stayed in Auburn, that “It might be over six months”[82] and then went on to say that he was still living in Auburn when the matter commenced in this Court.[83]
  10. The applicant said that, apart from seeing Mr Lu on a professional basis, he otherwise first saw him in Chinatown in August 2005 when he was handing out Falun Gong leaflets. He remembered this because he became a Falun Gong member in August 2005, roughly a year after he moved to Australia.[84]
  11. The applicant was cross-examined about the Applicant’s First Affidavit. It was put to him that it wasn’t prepared with the assistance of Mr Lu. He said it was prepared with the assistance of “Mr Ben”.[85] The applicant was then asked the following questions:
  12. A little later, the applicant was asked the following questions:
  13. The applicant was cross-examined about the two page type-written statement attached to his protection visa application.[88] He agreed that he signed the document, and that it was prepared by Mr Lu. The applicant said that he had tried to tell Mr Lu about his situation but Mr Lu said “you don’t have to tell me. It is not necessary. Who is going to prepare document is me, not you”, and that he was trying to tell Mr Lu about his “ordeal ... in China.”[89]
  14. The applicant was further cross-examined about discussions that he had with Mr Lu and Mr Ben and said that:
    1. he did not tell Mr Ben what had happened to the Falun Gong members who had caught the taxi with him to Beijing or what had happened to him as a consequence of taking them to Beijing in his taxi;[90]
    2. neither Mr Lu nor Mr Ben asked him why he wanted a protection visa;[91]
    1. Mr Lu didn’t want to know his reason for wanting a protection visa and Mr Ben did not ask about the information in the protection visa;[92]
    1. all that Mr Lu, and Mr Ben, were interested in was money;[93] and
    2. Mr Lu had charged him $1750 and Mr Ben had charged him $1500.[94]
  15. The applicant was asked about information contained in the Applicant’s First Affidavit that in China he was a Falun Gong practitioner.[95] He was asked “didn’t you know that information then was wrong?”, and said “Yes”.[96] When asked if he said anything to anybody he then said:

When asked whether it was said twice the applicant did not directly answer the question.[98] And when asked again whether he allowed or signed the affidavit knowing the information was wrong he said as follows:

“Probably because my personality, I’m very soft, I tend to say yes, rather than no and when people said so, I always nod and I didn’t realise it was a serious – very serious.”[99]
  1. In re-examination the applicant said that Mr Ben was a lawyer who appeared for him in the first hearing in this Court, and who was paid $1500.[100] Asked whether Mr Ben prepared the Applicant’s First Affidavit the applicant said “Yes”.[101]
  2. The applicant also said that where he only spent 20-30 minutes with Mr Ben, including the time when the interpreter was there, before signing the Applicant’s First Affidavit,[102] he spent a “[l]ong time” with his lawyer (by that time Dr Cameron) before swearing the Applicant’s Third Affidavit.[103]

Evidence for the respondent

Mr Lu’s position – the first hearing

  1. At the first hearing before this Court on 20 October 2006[104] a solicitor, Mr Levingston, advised the Court that he had a watching brief on behalf of his client “to hear the allegations and advise my client in respect of those allegations, but not to otherwise appear or participate in the proceedings.[105] That client was Mr Lu.[106]
  2. At the First Hearing it was common ground that Mr Lu “was at all material times a registered migration agent”.[107] It is now accepted that Mr Lu was not, in fact, a registered migration agent until 3 May 2005, some eight and a half months after he first apparently assisted the applicant to complete the protection visa application, which was lodged on 18 September 2004.[108]

Mr Lu’s affidavit

  1. At the hearing of the remitted matter the Minister sought to introduce into evidence the affidavit of the migration agent, Mr Lu, sworn 28 May 2008.[109]
  2. In Mr Lu’s Affidavit he says that:
    1. he is a registered migration agent admitted to registration on 3 May 2005;[110]
    2. he did not give immigration assistance to the applicant, and that the applicant was not his client, and that:
      1. he did not act for or advise the applicant in respect of his protection visa application or subsequent appeal to the Tribunal;
      2. he has not prepared any statement concerning claims made with respect to the protection visa application by the applicant; and
      3. he did not meet the applicant to assist him to apply for a protection visa;[111]
    1. he had not met the applicant;[112]
    1. he did not receive any money from the applicant and did not prepare the receipts referred to by the applicant;[113] and
    2. he did not reside with the applicant.[114]
  3. Effectively, everything asserted by the applicant to have occurred between he and Mr Lu is denied by Mr Lu in Mr Lu’s Affidavit.

Mr Lu’s oral evidence

  1. Evidence-in-chief was led from Mr Lu during which he said:
    1. that he did not know if had ever met the applicant;[115]
    2. that he had never acted for the applicant;[116]
    1. he applied in July 2004 to become a migration agent but withdrew his application and re-applied on 24 December 2004;[117]
    1. his initial registration as a migration agent was approved on 3 May 2005;[118]
    2. prior to working for himself as a migration agent he was not in a position where he handled monies or issued receipts;[119]
    3. that he is 176cm tall (about 5’9”);[120]
    4. he is aged 34;[121]
    5. during the second half of 2004 he lived in a two bedroom apartment in Castlereagh Street, Sydney (either 303 or 317 Castlereagh Street) in a high rise building, he thinks on level 28, of a building of 30 to 35 floors, which was rented from a real estate agent;[122]
    6. he did live there with somebody else, whose name he cannot remember, but did not ever live there with the applicant;[123]
    7. he did not ever stay in a three-storey building with someone else during the second half of 2004;[124] and
    8. he moved into his present office at about the time that he registered as a migration agent, or perhaps shortly before that time in March or April of 2005;[125]
  2. Mr Lu was then asked a series of questions as follows:
  3. Mr Lu was cross-examined. As soon as the applicant was brought into a full shot on the video link Mr Lu said he had met him before.[127] However, he could not remember in what circumstances he had met the applicant before.[128]
  4. Mr Lu said in cross-examination that:
    1. he came from the south of China;[129]
    2. he rented out the two bedrooms of the property that he rented in Castlereagh Street and that he lived in the sunroom;[130]
    1. he did not however know or think that he had met Mr Zhang;[131] and
    1. he was not aware that this was the second hearing of the applicant’s application in this Court, and that:
      1. he was not aware of a previous hearing on 20 October 2006; and
      2. he had not instructed a solicitor, Mr Levingston, to appear at a hearing on 20 October 2006 holding a watching brief.[132]
  5. Re-examined, Mr Lu said that:
    1. he had not instructed Mr Levingston to attend the court appearance for him;[133]
    2. he could not remember where he thinks he might have met the applicant before;[134]
    1. he had never worked for the applicant;[135] and
    1. when he rented out the other two rooms in the Castlereagh Street property he did not rent those rooms to the applicant or Mr Zhang.[136]

The alleged fraudulent conduct by Mr Lu

  1. The amended grounds of the application do not set out with any particularity the conduct alleged. However, from the submissions of the applicant’s counsel and the previous proceedings it appears those allegations are of fraudulent conduct in that:
    1. the person who assisted the applicant, Mr Lu was not registered as a migration agent at the time the assistance was rendered;
    2. Mr Lu completed the forms on behalf of the applicant and used an address that the applicant claims to have no knowledge of and claims does not exist;
    1. Mr Lu incorporated information in support of the applicant’s claim for a protection visa that was not correct;
    1. Mr Lu did not advise the applicant of the Tribunal hearing;
    2. had Mr Lu advised the applicant of the Tribunal hearing, the applicant would have attended the Tribunal hearing; and
    3. as a consequence of Mr Lu’s conduct the applicant was deprived of the opportunity to appear before the Tribunal.

Law – fraud by a migration agent

  1. Fraudulent conduct by a third person may result in the jurisdiction of the Tribunal being “constructively unexercised”.[137]
  2. It must be shown that the migration agent acted fraudulently, that is, acted dishonestly, stultifying the proceedings before the Tribunal and disabling the Tribunal from discharging its statutory functions in relation to the review.[138]
  3. Fraudulent conduct can be determined by inference from evidence but it must be the most probable inference from the facts as determined: suspicion is not enough.[139] Similar issues as those in this case arose in SZLIX and were considered insufficient to give rise to fraud given the “level of satisfaction” required where fraud is alleged.[140]
  4. Mere negligence or incompetence or a simple failure to inform is insufficient to support jurisdictional error.[141]
  5. A bare assertion that a migration agent may have had a motive to deny involvement so as to avoid detection of an offence is, without more, insufficient to substantiate fraud.[142]

The applicant’s evidence analysed

A Falun Gong practitioner

  1. The applicant was prepared to affirm an affidavit, the Applicant’s First Affidavit, on 3 May 2006, saying that he was a Falun Gong practitioner, and that he feared returning to China and being persecuted there. The statement concerning the applicant being a Falun Gong practitioner and fearing persecution if he returned to China was made:
    1. at a time when the applicant was represented by a lawyer; and
    2. in an affidavit where he otherwise admitted that statements in the protection visa application (which statements he alleged were inserted by Mr Lu) concerning his detention and torture in China, and, critically, his being forced to declare that he would not practise Falun Gong, were untrue.
  2. The concept of recanting that which was untrue was therefore known to the applicant. However, it would not be until the Applicant’s Second Affidavit sworn on 8 May 2008, two years later, at which time the applicant said that the Applicant’s First Affidavit was translated for him again, that the applicant admitted that he was not a Falun Gong practitioner, but had only practised Falun Gong since coming to Australia. The applicant did not make that admission in October 2006 when the Applicant’s First Affidavit was put into evidence at the First Hearing.[143]
  3. The applicant was therefore, even when retracting statements alleging detention and torture and being forced to declare that he would not practise Falun Gong, still prepared, having been affirmed,[144] to put into evidence a statement that he was a Falun Gong practitioner and feared persecution if he returned to China because he was a Falun Gong practitioner. Indeed, in the Applicant’s First Affidavit he indicated that had he been aware of the Tribunal hearing that is what he would have told the Tribunal. It can be said that the applicant thus evinced an intention to be prepared to lie to the Tribunal.
  4. When the applicant was asked directly whether or not he knew that the information in the Applicant’s First Affidavit that he was a Falun Gong practitioner was wrong, he affirmed that to be the case. He then said that the interpretation of the affidavit was rushed and that he did not realise the mistake. When asked whether it was said twice (and therefore, the Court infers, would have been interpreted twice) he did not directly answer that question, but then went on to acknowledge that because of his personality he would have tended to say “yes”, and, that he did not realise how serious the matter was.
  5. The Court considers that the applicant knew that the information contained in the Applicant’s First Affidavit concerning his practice of Falun Gong was wrong. The applicant’s credibility is not enhanced by, on the one hand saying that he realised that the information was wrong, and on the other hand saying that he did not realise the mistake. Doing so simply highlights the unreliability of this aspect of his evidence. It is also very difficult to believe, and understand that the applicant could believe, that an application for a protection visa and the signing of an affidavit in relation to associated Court proceedings was anything other than a serious matter.

Living in a flat upon arrival in Sydney

  1. In the Applicant’s First Affidavit the applicant said that he lived with Songtao Lu for a few weeks when he arrived in Sydney but did not know the address of the apartment. In the Applicant’s Second Affidavit he said that he lived “in a run-down flat in a three storey building”. He said that this flat was found for him by a Mr Zhang. Mr Zhang lived in Sydney, but had been the applicant’s neighbour in China. Mr Zhang had not previously been specifically mentioned. The applicant now says that he “lived alone”, “except for 2-3 days when Mr Lu stayed there”. Cross-examined, the applicant said that he stayed in the flat organised by Mr Zhang for two weeks and that Mr Lu visited there twice for a period of one to two hours on each occasion. He then gave evidence that:
    1. Mr Lu “didn’t live there”;
    2. he was not sure if Mr Lu stayed in the other room; and
    1. Mr Lu did not have his breakfast or dinner at the flat.
  2. It is apparent that the applicant’s evidence with respect to whether or not Mr Lu lived in the flat is wholly inconsistent and cannot be relied upon. The matter might have been resolved, in whole or part, by calling Mr Zhang to give evidence. Mr Zhang had not only, on the applicant’s latest evidence, provided the accommodation for the applicant, but had been his neighbour in China. Evidence from Mr Zhang might have resolved, or assisted with the resolution of, the following issues:
    1. whether or not, and if so to what extent, Mr Lu lived in or visited the flat; and,
    2. whether, during this time, Mr Lu spoke to the applicant as if he were a migration agent, or appeared to offer migration assistance or advice to the applicant.

The 160/422 Pitt Street, Sydney address

  1. The applicant said that the 160/422 Pitt Street, Sydney address, which was given as the applicant’s address for both the protection visa application and the Tribunal review application, was never his address and not an address that he told Mr Lu that he ever lived at. He nevertheless signed the Tribunal review application which contained this address.
  2. The applicant says he was shown a copy of a photo of a building at 420-426 Pitt Street, Sydney, which the evidence suggests had recently been converted to strata title units, and said that this was not a building that he had ever stayed in. A copy of the photo of the building is not in evidence. Nor is any strict proof that the building has been converted to strata title units.
  3. The Court was invited to find that there was no address known as 422 Pitt Street, Sydney. However, the evidence in support of the no address proposition dates from 2008, and seemingly post-dated the alleged conversion of “a building” now “known as” 420-426 Pitt Street Haymarket to strata title units.[145] That evidence (which was not objected to) was contained in a forwarded email from a “Revenue Officer” at the City of Sydney, sent to a person called “Hao Gao”. Neither person was called. It was not explained why a Revenue Officer with a city council was qualified to give evidence about addresses. The Court notes that no evidence was given about postal addresses, either by the Revenue Officer or anyone else (for example, an officer of Australia Post). In the absence of evidence as to the actual address or addresses of the relevant buildings at the relevant times (2004-2005), the Court is not prepared to find or infer that there had never been an address known as 422 Pitt Street, Sydney, or that there was no such address at the relevant times in 2004-2005. Furthermore, the mere fact that there is a “building known as 420-426 Pitt Street” is not evidence that there is not a postal address of “422 Pitt Street”.

The applicant goes to live in Auburn

  1. The applicant said that after he had lived in Sydney he moved to Auburn. Initially he said that he might have moved to Auburn in March 2005. If that were the case he would have been living in Sydney for more than six months after his arrival, and not the “two weeks” or a “few weeks” earlier claimed. Later, the applicant said that he was living in Auburn at the time that this application was commenced in this Court. The application was filed on 20 January 2005 and the first directions hearing was on 1 February 2005. There is an inconsistency between the dates when the applicant says he moved to Auburn, being either, possibly, March 2005 or sometime before late January or early February 2005. In either event, it appears that his evidence about living in a flat in Sydney for “a few weeks” or “two weeks” is inaccurate.
  2. The applicant gave a variety of lengths of time in which he then lived in Auburn. They included:
    1. “for”, “about” and “over” four months;
    2. “over six months”; and
    1. “about” and “less than” a year.
  3. The applicant was asked whether he moved to Cabramatta in June 2005, but that question was never resolved.
  4. The applicant’s evidence as to his living in Auburn, in the Court’s view, is inconsistent and unreliable.

The protection visa and Tribunal review applications

  1. The applicant says that he went to Mr Lu’s office to sign documents related to the protection visa application. Precisely what these documents are is not apparent. Apart from the protection visa application, the review application to the Tribunal, and the application to this Court there are no other relevant documents before the Court.
  2. In the Court’s view there is a sense of incompleteness about the evidence given by the applicant in regard to the progress of the protection visa application, the Tribunal review application, and, more particularly, Mr Lu’s alleged involvement in both those applications.
  3. Overall, there is, in the Court’s view, insufficient direct evidence, and insufficient evidence from which inferences might be drawn, to conclude that Mr Lu had any involvement in the preparation of the protection visa application or the review application to the Tribunal.

Receipts

  1. The applicant has put into evidence two receipts dated 18 and 30 September 2004 for a total sum of $750, said to have been given to him by Mr Lu. However, the receipts are bare common form receipts. The receipts do not indicate to whom the monies purported to have been received were paid, or, apart from the uninformative (for present purposes) description “Service Fee”, what the monies were paid for. The signature on the receipts is indecipherable.
  2. The receipts are of little assistance to the Court. They are devoid of relevant detail which might assist the Court in determining whether Mr Lu was or was not involved in their preparation or issuance.

Preparation of documents for the Tribunal and the Court

  1. In cross-examination the applicant gave conflicting answers as to who had assisted or prepared documents for the Tribunal and who had prepared the Applicant’s First Affidavit. Initially the applicant said that Mr Ben prepared the Applicant’s First Affidavit and helped him with the Tribunal application. Then he said he was not sure if it was the Court or the Tribunal. Asked if it was Mr Ben who helped him with the affidavit and the Tribunal review application he responded affirmatively. Counsel pursued the issue in a slightly different way and was later told that it was Mr Lu who had been the person preparing the information for signature in the Applicant’s First Affidavit. In re-examination the applicant said that it was Mr Ben who prepared the Applicant’s First Affidavit.
  2. It is common ground that “Mr Ben” is a reference to Mr Zipser, a lawyer who practises in migration matters in Sydney, and who appeared for the applicant at the First Hearing. Mr Lu is a migration agent, also practising in Sydney, and of Chinese ethnicity. Despite this, the applicant is unable to tell the Court, with any reliability, which of them was involved in which aspects of the preparation of documents for the Tribunal and the preparation of the Applicant’s First Affidavit, which was the affidavit relied upon in the First Hearing in this Court.
  3. The applicant’s inconsistency on this issue and inability to say which of Mr Zipser or Mr Lu prepared relevant documents for the Tribunal or the Court must, in the Court’s view, cast significant doubt on the applicant’s evidence:
    1. concerning Mr Lu’s alleged preparation of documents for him; and
    2. his identification of Mr Lu as the person who prepared documents for him.

Business card and description of Mr Lu’s office

  1. The applicant tendered as part of the Applicant’s Third Affidavit a business card for Mr Lu. The business card was obtained for him by a friend from Beijing because the applicant “needed it” for the affidavit.
  2. The applicant said that he had been to visit Mr Lu’s office on four occasions, and gave:
    1. a very general description of how to get to Mr Lu’s office, including inconsistent evidence as to whether it was accessed by lift or escalator; and
    2. a more detailed description of the office itself.
  3. The applicant was challenged and then denied that he had obtained the details or location of the office and its description from others.
  4. The generality of the description of the office’s location, inconsistency as to how it was accessed, and a slightly more detailed description of the office itself, are not, in the Court’s view, necessarily indicative of the applicant having visited the office himself. Further, they are not inconsistent with his having been provided with a description of the office’s location and the office itself by others, possibly because he “needed it”.

Physical and accent description of Mr Lu

  1. The physical and accent description of Mr Lu given by the applicant is reasonably accurate. However, even Mr Lu does not contest that he has met the applicant at some stage, thereby limiting the value of this evidence.

An analysis of Mr Lu’s evidence

The solicitor’s watching brief

  1. At the First Hearing Mr Levingston said that he had a watching brief, and the immediately prior interactions between Counsel for the applicant and the Court on that occasion make it apparent that steps had been taken to advise the migration agent against whom the fraud allegations were being made (that is, Mr Lu) of the First Hearing.
  2. Mr Lu said he had not instructed Mr Levingston to appear at the First Hearing, and that he was, in fact, unaware of the First Hearing. Mr Lu was quite definite on the matter. No other evidence was called in relation to this issue.
  3. Mr Lu is obviously mistaken in relation to his evidence on this issue. It is not however an issue in respect of which there is otherwise any:
    1. dispute; or
    2. dispute relevant to the matters in issue in these proceedings necessitating Mr Lu to deny that instructions were given to a solicitor in respect of the original hearing, which suggests that he is simply mistaken.
  4. Mr Lu’s denial does therefore diminish his credibility generally, but not specifically in relation to a material issue.

Acting for the applicant

  1. Mr Lu’s evidence was consistent in that he maintained that he did not act for, or assist the applicant, or meet him in connection with his protection visa application or migration advice or assistance generally.

Receipts and monies

  1. Mr Lu was also consistent in saying that he did not receive any money from the applicant, nor did he prepare the receipts put into evidence by the applicant. Mr Lu said that prior to working on his own account he was not in a position where he handled monies or issued receipts. Mr Lu appears to have moved into his existing premises sometime in March or April of 2005 and was registered as a migration agent on 3 May 2005.

Meeting the applicant

  1. Mr Lu initially denied ever meeting the applicant. Later, and as soon as he had seen a full shot of the applicant on the video-link, he said he had met the applicant, but was not sure in what circumstances he may have met him. However, Mr Lu was clear that he had not met the applicant in relation to migration advice or assistance.
  2. Reflecting on that concession, made in the way it was, the Court has come to the view that it is indicative of Mr Lu being an honest, albeit unimpressive,[146] witness, for it was not necessarily in his self-interest to admit that he had previously met the applicant.

Residing with the applicant

  1. Mr Lu was also consistent in saying that he never resided with the applicant. Mr Lu said that in the second half of 2004:
    1. he lived on level 28 of a high rise apartment block in Castlereagh Street, Sydney which he rented from a real estate agent, and in respect of which he rented out two bedrooms and lived in the sunroom; and
    2. he did not stay in a three-storey building with someone else in the second half of 2004.

Conclusions on the evidence concerning migration agent’s fraud

  1. In assessing the evidence of the applicant and Mr Lu the Court has taken account of the fact that:
    1. the applicant did not speak English and had to give his evidence through an interpreter;
    2. Mr Lu clearly spoke English as a second language;
    1. neither was an impressive witness; and
    1. both looked distinctly uncomfortable in the witness box.
  2. In assessing the applicant’s evidence the Court particularly notes that:
    1. the applicant was prepared to lie about his involvement with Falun Gong even when retracting other incorrect points in his evidence, and maintained that lie until shortly prior to the Second Hearing;
    2. there are numerous major and minor inconsistencies in relation to the major areas of the applicant’s evidence, inconsistencies which, in the Court’s view, diminish his credibility;
    1. there is a lack of detailed information concerning the alleged involvement of Mr Lu in relation to the preparation of the protection visa application and other documentation;
    1. the applicant was not able to say whether, or which of, Mr Lu or Mr Zipser carried out critical tasks in relation to the proceedings in the Tribunal, and in that respect the reliability of the applicant’s evidence identifying Mr Lu as the author of the review application to the Tribunal must be doubted.
  3. The Court also notes the failure to call Mr Zhang to give evidence. The Court is entitled to infer from the failure to call Mr Zhang, which was unexplained, that Mr Zhang’s evidence would not have assisted the applicant.[147] On the applicant’s evidence Mr Zhang would have been able to give relevant evidence concerning:
    1. the residential living arrangements for the applicant;
    2. what, if any, involvement or interaction Mr Lu had with the applicant in those living arrangements; and
    1. possibly, whether Mr Lu was acting as a migration agent or giving migration assistance and advice when he, allegedly:
      1. met with the applicant at; and
      2. stayed in,

the flat arranged for the applicant by Mr Zhang.

  1. The failure to call Mr Zhang leaves the Court in considerable doubt as to the truth of the applicant’s evidence concerning his living arrangements upon arrival in Sydney, and, in particular, the alleged interaction with and involvement of Mr Lu in relation to those living arrangements. That again diminishes the applicant’s credibility, and casts into doubt his evidence concerning Mr Lu’s alleged involvement, at about that time, with the making of the protection visa application.
  2. There were also issues that arose in relation to Mr Lu’s evidence. As indicated above his evidence in relation to the solicitor’s watching brief is simply incorrect and can probably be explained as a mistake, but it does raise concerns about the reliability of his evidence. Mr Lu did concede that he met the applicant in circumstances which he does not now recall, save that they were circumstances not associated with any migration advice or assistance. The admission by Mr Lu that he may have met the applicant goes favourably to Mr Lu’s credit, for if he were determined to resist the suggestion that he had:
    1. assisted the applicant with:
      1. the protection visa application; and
      2. the review application to the Tribunal; or
    2. given the applicant migration advice or assistance,

a denial of ever having met the applicant would be more consistent with such an approach. Mr Lu was however consistent throughout in relation to the fact that he did not meet the applicant with respect to migration advice or assistance and that he did not ever reside with the applicant upon the applicant’s arrival in Sydney.

  1. As to motive, the Court has considered whether Mr Lu has denied any involvement with the applicant because of the ramifications of his having, if that were to be true, acted as a migration agent giving assistance and advice when he was not a registered migration agent. There are two factors which suggest to the Court that Mr Lu did not have such a motive. They are:
    1. his admission, after seeing the applicant on the video-link, that he had met the applicant (although not in connection with migration advice or assistance); and
    2. Mr Lu’s unchallenged evidence that he did not receive, and was not in a position to receive, monies or to issue receipts, prior to setting up in his own office and commencing practice as a registered migration agent in the second quarter of 2005.

The latter fact particularly reduces any reason for Mr Lu being motivated to hide any involvement that he may have had.

  1. Despite the difficulties adverted to above with respect to Mr Lu’s evidence, the Court considers Mr Lu’s evidence to be more consistent, reliable and honest than that of the applicant. The Court therefore, on balance, prefers the evidence of Mr Lu to the applicant in relation to whether Mr Lu met with the applicant, and provided migration advice and assistance (including preparation of applications and documents), and whether Mr Lu ever resided with the applicant. The Court therefore finds as a matter of fact that Mr Lu did not provide migration advice or assistance to the applicant (including preparation of applications and documents), and it was therefore not him, or not possible for it to have been him, who failed to advise the applicant of the Tribunal hearing.
  2. The Court is not satisfied on the basis of the applicant’s evidence that the applicant has established fraud, either at all, or to the relevant standard. The applicable standard of proof is on the balance of probabilities,[148] with the Court being obliged to take into account in deciding whether it is satisfied that the case is being proved on the balance of probabilities, the following matters:
    1. the nature of the cause of action or defence; and
    2. the nature of the subject-matter of the proceedings; and
    1. the gravity of the matters alleged.[149]
  3. In this case the nature of the action is an application for judicial review of a decision of the Tribunal, but one which comes before the Court with an allegation of fraud so serious as to stultify the Tribunal’s processes. The combination of fraud and the stultification of the processes of a statutory tribunal make the allegations particularly grave.
  4. The gravity of the issue is a circumstance which the Court must take into account when determining whether or not the burden of proof has been discharged, and the more serious the issue of which proof is required the more cogent or clear the evidence needed to establish it.[150] In Gama one qualification appears to have been added, namely that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary not only according to the nature of what is sought to be proved, but also the circumstances in which it is sought to be proved.[151]
  5. In the circumstances of this case the evidence led by the applicant has not discharged his burden of proof. The applicant’s evidence is unreliable and inconsistent and falls short of the required standard to prove fraud, particularly fraud stultifying a statutory tribunal’s processes.
  6. Even if the evidence of the applicant were largely to be accepted, namely:
    1. that he engaged Mr Lu to provide assistance;
    2. that Mr Lu was paid for his services;
    1. that Mr Lu was an unregistered migration agent at the relevant times (which is common ground);
    1. that Mr Lu’s involvement was not disclosed to the Minister or the Tribunal; and
    2. that Mr Lu’s involvement was intentionally concealed because he was not then registered as a migration agent,

the Court would nevertheless still find that there was no fraud on the part of Mr Lu.

  1. The Court considers that there would be no fraud by Mr Lu in the above circumstances because the applicant:
    1. was “recklessly indifferent” to Mr Lu’s conduct: there is, for example, no evidence that he ever made any enquiries (of anyone) concerning the progress of his protection visa application or Tribunal review application;
    2. signed documents without knowing their contents or having them translated;
    1. placed total reliance on Mr Lu to progress the protection visa application and Tribunal review application;
    1. failed to make any inquiries, or undertake any check, on what Mr Lu was doing on his behalf, until it was too late.[152]
  2. Finally, there is no evidence that:
    1. the Tribunal Hearing Invitation Letter was ever received by Mr Lu; or
    2. Mr Lu misled or misinformed the Tribunal as to the applicant’s intentions with respect to appearing before the Tribunal at the hearing;[153]
  3. On the evidence it is not possible to conclude that this is a case of misfeasance by Mr Lu, and even if the evidence led by the applicant is accepted, it is, at best, a case of non-feasance, and there are sound policy reasons why bad or negligent advice detrimentally affecting the decision of an administrative tribunal does not vitiate that tribunal’s decision.[154]
  4. Like the applicant in SZLZE, the applicant here was, taking his case at its highest, “substantially the author of his own misfortune.”[155]

Conclusion – migration agent’s fraud

  1. For the above reasons, the applicant has not established fraud on the part of Mr Lu either at all, or such as to stultify the processes of the Tribunal.

Tribunal Hearing Invitation Letter

Issues

  1. Two issues arise with respect to the sending and receipt of the Tribunal Hearing Invitation Letter. They are, whether the Tribunal Hearing Invitation Letter was sent:
    1. at all; or
    2. to an address provided to the Tribunal by the applicant, as distinct from Mr Lu, in accordance with the provisions of s.441A(4) of the Migration Act.

Relevant legislation

  1. At the relevant times in 2004-2005 section 441A(4) of the Migration Act provided as follows:

Receipt of the letter

  1. The applicant’s evidence is that he did not receive the Tribunal Hearing Invitation Letter. That however does not matter. The applicant is deemed to have received the Tribunal Hearing Invitation Letter,[156] if it is dispatched to the applicant “by the method in subsection 441A(4)” of the Migration Act.[157]
  2. Sub-paragraphs (a), (b) and (c) of s.441A(4) of the Migration Act are consecutively cumulative requirements.
  3. In SZIRS the Court was asked to infer from the Tribunal’s usual practice that a hearing invitation letter was sent to an applicant by the method envisaged in s.441A(4). In that case, the Court refused to do so, observing and finding that:
  4. In these proceedings, the same District Registrar gave evidence. The District Registrar’s evidence was not challenged: he was not cross-examined. The District Registrar has held his current position since 2 May 2005, prior to which he was District Registrar of the Refugee Review Tribunal from April 2004. The District Registrar said that he is familiar with the Tribunal’s postal procedures in late 2004 for the despatch of correspondence to review applicants by registered post,[159] and that he has perused the Tribunal’s file in relation to the applicant’s application for review as well as the Tribunal’s electronic case management system records.[160] The District Registrar gave evidence of:
    1. a copy of the Tribunal’s letter addressed to the applicant at 160/422 Pitt Street, Sydney 2000 being sent by registered post on 8 November 2004 inviting the applicant to come to a hearing of the Tribunal on 2 December 2004;[161]
    2. a redacted copy of the Tribunal’s registered post records for 8 November 2004 indicating that a registered post letter addressed to the applicant at 160/422 Pitt Street, Sydney 2000 was received by Australia Post, and that receipt was acknowledged by Australia Post on 9 November 2004;[162]
    1. the Tribunal’s records in relation to the applicant disclosing that his residential address and address for service were, at all times, 160/422 Pitt Street, Sydney NSW 2000;[163] and
    1. there being no record of the hearing invitation letter of 8 November 2004 ever being returned to the Tribunal unclaimed.[164]
  5. The unchallenged evidence of the District Registrar makes it clear that the Tribunal Hearing Invitation Letter was sent:
    1. within three working days of the date of the document, in accordance with s.441A(4)(a) of the Migration Act;
    2. by prepaid post, in accordance with s.441A(4)(b) of the Migration Act, and
    1. to the applicant at 160/422 Pitt Street, Sydney NSW 2000.
  6. SZIRS is therefore distinguishable on the facts because in this matter there is proof that the Tribunal Hearing Invitation Letter was sent.[165]
  7. The Tribunal Hearing Invitation Letter:
    1. invited the applicant to appear before the Tribunal to give evidence;
    2. gave the applicant notice of the specified day, time and place at which the applicant was scheduled to appear;
    1. provided a period of notice to the applicant that was at least the 14 prescribed days; and
    1. contained a statement concerning the options available to the Tribunal if the applicant failed to appear before it, including that the Tribunal may hear and deal with the matter in the absence of the applicant.
  8. The Tribunal Hearing Invitation Letter therefore complied with the statutory requirements contained in ss.425(1) and 425A of the Migration Act and reg.4.35D of the Migration Regulations.
  9. The issue that remains is whether or not the Tribunal Hearing Invitation Letter was sent to the last address for service provided to the Tribunal, or the last residential or business address provided to the Tribunal, by the applicant.
  10. There is no dispute that the application for review of the Delegate’s Decision contains a residential address of 160/422 Pitt Street, Sydney NSW 2000 and indicates that correspondence from the Tribunal is to be sent to that residential address.[166]
  11. In view of the findings made by this Court concerning the alleged fraud by Mr Lu, it cannot be said that Mr Lu provided the address contained in the application to the Tribunal for review of the Delegate’s Decision.
  12. The applicant’s evidence was that he signed the application for review of the Delegate’s Decision, containing the 160/422 Pitt Street, Sydney address, but that at the time, November 2004, this was not his address and not an address that he told Mr Lu he had ever lived at.
  13. There is therefore an application to the Tribunal for review which is signed by the applicant. The Tribunal application signed by the applicant contains the 160/422 Pitt Street, Sydney address. Because:
    1. the applicant has signed the Tribunal application;
    2. the Tribunal application contains the 160/422 Pitt Street, Sydney address; and
    1. the Tribunal application was provided to the Tribunal,

the Court considers that the 160/422 Pitt Street, Sydney address can be said to be one which has been provided to the Tribunal by the applicant.

  1. The finding with respect to the address is reinforced by the following:
    1. the fact that the Court has found that Mr Lu was not involved in the matter, fraudulently or otherwise;
    2. there is no evidence of any other person (other than Mr Zipser against whom the applicant makes no allegations) being involved with the preparation for, or making of, the Tribunal application;
    1. the only other person who, on the evidence, might have had some involvement was Mr Zhang, but he was not called;
    1. the applicant’s evidence that he is a person who is easily led; and
    2. the Court’s findings concerning the credibility of the applicant’s evidence to the Court.
  2. The Court cannot therefore exclude the possibility that, for whatever reason, the address was one provided to the Tribunal by the applicant, notwithstanding that he was apparently not familiar with the address and not living there.

Conclusion concerning Tribunal Hearing Invitation Letter

  1. The Court has concluded that the Tribunal Hearing Invitation Letter was sent to the applicant at an address provided by him to the Tribunal, and the sending of the letter was in accordance with the provisions of ss.425 and 441A(4) of the Migration Act.

Summary of conclusions and orders

  1. The Court concludes that:
    1. there was no fraud by Mr Lu, either at all, or such as to stultify the processes of the Tribunal; and
    2. the Tribunal Hearing Invitation Letter was sent to the applicant at an address provided by him to the Tribunal, and the sending of the letter was in accordance with the provisions of ss.425 and 441A(4) of the Migration Act.
  2. It follows therefore that the Tribunal was entitled under s.426A of the Migration Act to proceed to hear the application in the absence of the applicant. No ground of the application challenges the Tribunal Decision for reasons other than those already dealt with above. The application must therefore be dismissed. There will be an order accordingly.
  3. The Court will hear the parties as to costs.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate: S. Gough


Date: 30 November 2009

[1] “Tribunal”.
[2] Transcript, 3 June 2008, pages 36 and 39.
[3] “Migration Act”.
[4] Court Book (“CB”) 27.
[5] CB 1-28.
[6] CB 25.
[7] CB 38-39.
[8] CB 44-45.
[9] Migration Act, s.441A(4)(c)(i).
[10] CB 53.
[11] CB 55-56.
[12] CB 31-36.
[13] “Tribunal Decision”; CB 50-57.
[14] “June 2006 Submissions”.
[15] “First Hearing”.
[16] June 2006 Submissions, paras.7-9.
[17] [2007] FMCA 47 (“SZFNX (No. 1)”).
[18] [2007] FCA 1980 (“SZFNX – Federal Court”).
[19] SZFNX – Federal Court at para.36 per Besanko J.
[20] SZFNX (No. 1) at paras.17-28 per Cameron FM.
[21] (2006) 154 FCR 365; [2006] FCAFC 142 (“SZFDE – Federal Court”).
[22] SZFNX (No. 1) at paras.32-34 per Cameron FM.
[23] SZFNX (No. 1) at paras.35-36 per Cameron FM.
[24] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 (“SZFDE – High Court”).
[25] SZFNX – Federal Court at paras.26-27 per Besanko J.
[26] SZFNX – Federal Court at paras.31-34 per Besanko J.
[27] SZFNX – Federal Court at para.37 per Besanko J.
[28] “Second Hearing”.
[29] “Tribunal Hearing Invitation Letter”.
[30] Transcript, 25 August 2008, page 2.
[31] Transcript, 25 August 2008, page 4.
[32] Affidavit of Jonathan Willoughby-Thomas, sworn 24 July 2008 (“District Registrar’s Affidavit”).
[33] “Applicant’s First Affidavit”.
[34] Applicant’s First Affidavit, para.3.
[35] Applicant’s First Affidavit, para.3
[36] Applicant’s First Affidavit, para.5 and Annexure A.
[37] Applicant’s First Affidavit, para.6; CB 13 and 23.
[38] Applicant’s First Affidavit, para.7.
[39] Applicant’s First Affidavit, para.7.
[40] Applicant’s First Affidavit, para.8.
[41] Applicant’s First Affidavit, para.9.
[42] Applicant’s First Affidavit, para.11.
[43] Applicant’s First Affidavit, para.12.
[44] “Applicant’s Second Affidavit”.
[45] Applicant’s Second Affidavit, paras.1 and 2.
[46] Applicant’s Second Affidavit, paras.3-5.
[47] Applicant’s Second Affidavit, para.6.
[48] Applicant’s Second Affidavit, para.7.
[49] Applicant’s Second Affidavit, para.8.
[50] Applicant’s Second Affidavit, para.9.
[51] Applicant’s Second Affidavit, para.9.
[52] Applicant’s Second Affidavit, para.11.
[53] Applicant’s Second Affidavit, para.11.
[54] Applicant’s Second Affidavit, para.12.
[55] “Applicant’s Third Affidavit”.
[56] Applicant’s Third Affidavit, para.2.
[57] Applicant’s Third Affidavit, Annexure 1. The applicant’s initials have been deleted from the annexures: see s.91X Migration Act.
[58] Applicant’s Third Affidavit, Annexure 3.
[59] Applicant’s Third Affidavit, Annexure 7.
[60] Applicant’s Third Affidavit, para.10 and Annexure 9.
[61] Transcript, 3 June 2008, page 9.
[62] Transcript, 3 June 2008, pages 9-10.
[63] Transcript, 3 June 2008, pages 11-12.
[64] Transcript, 3 June 2008, pages 12 and 13.
[65] Transcript, 3 June 2008, page 13.
[66] Transcript, 3 June 2008, page 15.
[67] Transcript, 3 June 2008, pages 16 and 19.
[68] Transcript, 3 June 2008, page 17.
[69] Transcript, 3 June 2008, page 20.
[70] Transcript, 3 June 2008, page 21, see also page 26. Mr Kong was not called to give evidence by the applicant.
[71] Transcript, 3 June 2008, page 22.
[72] Transcript, 3 June 2008, page 22.
[73] Transcript, 3 June 2008, page 23.
[74] Transcript, 3 June 2008, pages 20 and 26.
[75] Transcript, 3 June 2008, page 42.
[76] Transcript, 3 June 2008, page 43.
[77] Transcript, 3 June 2008, page 43.
[78] Applicant’s First Affidavit, para.7.
[79] Transcript, 3 June 2008, page 44.
[80] Transcript, 3 June 2008, page 44.
[81] Transcript, 3 June 2008, page 45.
[82] Transcript, 3 June 2008, page 45.
[83] Transcript, 3 June 2008, page 45.
[84] Transcript, 3 June 2008, pages 46-47.
[85] Transcript, 3 June 2008, page 48.
[86] Transcript, 3 June 2008, page 48.
[87] Transcript, 3 June 2008, pages 49-50.
[88] CB 25-26.
[89] Transcript, 3 June 2008, page 49.
[90] Transcript, 3 June 2008, page 52.
[91] Transcript, 3 June 2008, page 52.
[92] Transcript, 3 June 2008, page 52.
[93] Transcript, 3 June 2008, page 53.
[94] Transcript, 3 June 2008, page 53.
[95] Applicant’s First Affidavit, paras.3 and 4.
[96] Transcript, 3 June 2008, page 51.
[97] Transcript, 3 June 2008, page 51.
[98] Transcript, 3 June 2008, page 52.
[99] Transcript, 3 June 2008, page 52.
[100] Transcript, 3 June 2008, page 53.
[101] Transcript, 3 June 2008, page 54.
[102] Transcript, 3 June 2008, page 54.
[103] Transcript, 3 June 2008, page 55.
[104] “First Hearing”.
[105] Exhibit R1, Transcript, Federal Magistrates Court, SZNFX v Minister for Immigration and Citizenship, 20 October 2006, pages 1 and 2 (“Transcript, 20 October 2006”).
[106] Transcript, 20 October 2006, page 18.
[107] Transcript, 20 October 2006, page 18.
[108] Transcript, 3 June 2008, page 4.
[109] “Mr Lu’s Affidavit”.
[110] Mr Lu’s Affidavit, para.1 and 2.
[111] Mr Lu’s Affidavit, paras.4-7 and 9-10.
[112] Mr Lu’s Affidavit, para.7.
[113] Mr Lu’s Affidavit, para.11.
[114] Mr Lu’s Affidavit, para.8.
[115] Transcript, 3 June 2008, page 28.
[116] Transcript, 3 June 2008, page 28.
[117] Transcript, 3 June 2008, pages 28-29.
[118] Transcript, 3 June 2008, page 28.
[119] Transcript, 3 June 2008, page 29.
[120] Transcript, 3 June 2008, page 29.
[121] Transcript, 3 June 2008, page 30.
[122] Transcript, 3 June 2008, page 30.
[123] Transcript, 3 June 2008, page 30
[124] Transcript, 3 June 2008, page 30.
[125] Transcript, 3 June 2008, page 31.
[126] Transcript, 3 June 2008, page 32.
[127] Transcript, 3 June 2008, page 36.
[128] Transcript, 3 June 2008, page 36.
[129] Transcript, 3 June 2008, page 36.
[130] Transcript, 3 June 2008, page 37.
[131] Transcript, 3 June 2008, page 37.
[132] Transcript, 3 June 2008, page 38.
[133] Transcript, 3 June 2008, page 39.
[134] Transcript, 3 June 2008, page 39.
[135] Transcript, 3 June 2008, page 39.
[136] Transcript, 3 June 2008, page 40.
[137] SZFNX – Federal Court at para.32 per Besanko J, summarizing the effect of the judgment of the High Court of Australia in SZFDE - High Court cited above.
[138] SZFDE – High Court CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.51 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZFDE – Federal Court FCR at 399-400 per French J; FCAFC at paras.129-130 per French J; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 at 509 per Tamberlin, Finn and Dowsett JJ; [2008] FCAFC 17 at para.33 per Tamberlin, Finn and Dowsett JJ (“SZLIX”); SZHVM v Minister for Immigration and Citizenship & Anor [2008] FCA 600; (2008) 170 FCR 211 at 230-231 per Middleton J; [2008] FCA 600 at para.51 per Middleton J (“SZHVM”).
[139] SZLIX ALR at 507 per Tamberlin, Finn and Dowsett JJ; FCAFC at para.23 per Tamberlin, Finn and Dowsett JJ.
[140] SZLIX ALR at 510 per Tamberlin, Finn and Dowsett JJ; FCAFC at para. 33 per Tamberlin, Finn and Dowsett JJ, citing Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 and 368 (“Briginshaw”).
[141] SZFDE – High Court CLR at 207 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.53 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZFDE – Federal Court FCR at 399 per French J; FCAFC at paras.127 and 129 per French J; SZLIX ALR at 509-510 per Tamberlin, Finn and Dowsett JJ; FCAFC at paras.30 and 33 per Tamberlin, Finn and Dowsett JJ; SZLZE v Minister for Immigration & Anor [2008] FMCA 560 at para.15 per Driver FM (“SZLZE”).
[142] SZLIX ALR at 508 and 509 per Tamberlin, Finn and Dowsett JJ; FCAFC at paras.26, 32 and 33 per Tamberlin, Finn and Dowsett JJ.
[143] Transcript, 20 October 2006, page 5.
[144] Transcript, 20 October 2006, page 4.
[145] Applicant’s Third Affidavit, Annexure 6.
[146] Transcript, 3 June 2008, pages 59-60.
[147] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308 per Kitto CJ, 312 per Menzies J; and 320-321 per Windeyer J.
[148] Evidence Act 1995 (Cth), s.140(1) (“Evidence Act”).
[149] Evidence Act, s.140(2).
[150] Qantas Airways v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at 574 and 576-577 per Branson J; [2008] FCAFC 69 at per Branson J; FCAFC at paras.128-129 and 137-139 per Branson J (“Gama”); see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ; Briginshaw at 361-363 per Dixon J; Re Dellow’s Will Trusts [1964] 1 WLR 451 at 454-455 per Ungoed-Thomas J; SZIRS v Minister for Immigration & Anor [2007] FMCA 214 at para.50 per Lucev FM (“SZIRS”).
[151] Gama FCR at 577 per Branson J; FCAFC at para.139 per Branson J (with whom French and Jacobson JJ generally agreed in this respect: Gama FCR at 571 per French and Jacobson JJ; FCAFC at para.110 per French and Jacobson JJ).
[152] SZLZE at para.10 per Driver FM, where the same factors were applied.
[153] SZLZE at paras.12 and 13 per Driver FM.
[154] SZFDE – High Court CLR at 207 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.53 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLZE at paras.15 and 16 per Driver FM.
[155] SZLZE at para.17 per Driver FM.
[156] Migration Act, s.441C(4); VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407 at 411 and 413-414 per Sundberg & Hely JJ; [2004] FCAFC 134 at paras.9 & 14-16 per Sundberg & Hely JJ (and see especially the cases cited at para.14); SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 at paras.17-18 per Spender, French and Cowdroy JJ (from which an application for special leave to appeal to the High Court was dismissed: see SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2007] HCATrans 211).
[157] Migration Act, s.441C(4).
[158] SZIRS at paras.48-52 per Lucev FM.
[159] District Registrar’s Affidavit, para.3.
[160] District Registrar’s Affidavit, para.4.
[161] District Registrar’s Affidavit, para.6 and Annexure JWT 1; see also CB 44-45.
[162] District Registrar’s Affidavit, para.7 and Annexure JWT 2.
[163] District Registrar’s Affidavit, para.10.
[164] District Registrar’s Affidavit, para.11.
[165] Evidence Act, ss.69, 171 and 182. Re Gardner; Ex parte RJ Gardner Pty Ltd (1967) 13 FLR 345 is distinguishable as it did not involve Commonwealth business records.
[166] CB 38-39.

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