SZJRF v Minister for Immigration & Anor [2009] FMCA 40 (30 January 2009)

Last Updated: 3 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJRF v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 40

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – allegation of fraud on the part of the migration agent – fraud not established – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJRF”.

Federal Magistrates Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), s.91X

Brigenshaw v Brigenshaw [1938] HCA 34; (1938) 60 CLR 336 Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 SZJRF v Minister for Immigration & Anor [2007] FMCA 309 The Waterside Workers’ Federation of Australia v Gilchrist, Watt and Sanderson Ltd [1924] HCA 61; (1924) 34 CLR 482

Applicant:

SZJRF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3302 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

12 August 2008

Delivered at:

Sydney

Delivered on:

30 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr L Byrne

Counsel for the Respondents:

Ms V McWilliam

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application filed on 13 October 2006 is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3302 of 2006

SZJRF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant was born in 1964 in Donglin, Shenyang, Liaoning Province, the People’s Republic of China (PRC). The applicant claims in his Protection (Class XA) visa application that he finished eight years of school in 1980 and was employed as a skilled worker between 1980 and December 1995.
2. The applicant seeks protection in Australia because of the flooding which occurred in Shenyang in 1995 which directly affected him. He claims that police “kicked” and “beat” him following his anti-revolutionary remarks which he voiced after the flooding. Further, he fears he will be arrested in the PRC for his protection visa application in Australia.
3. The applicant claims that his father was in the police force prior to 1949. For this reason, the Chinese Communist Party (CCP) persecuted his father and his property was taken away. As a result of this persecution, the applicant claims that he was subject to discrimination in school and was also prohibited from joining the Red Guards.
4. The applicant claims that his wife was forced to have an abortion as a result of the “One Child Policy” even though she is from an ethnic minority.
5. The applicant arrived in Australia on 18 December 1995 and applied to the Department of Immigration & Citizenship for a Protection (“Class XA”) visa on 15 January 1996. A delegate of the Minister refused to grant the visa on 18 January 1997 and the applicants applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. It is the Tribunal decision of Eraine Grotte dated 3 April 1998 (reference number N97/13584) that is the subject of this judicial review. A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
6. The Tribunal decision contains the following passages setting out the reasons for its decision:
   • On 20 February 1998 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence before the Tribunal. The applicant was advised that, if he did not contact the Tribunal within a specified period, the hearing would not take place and a decision may be made on the evidence available to the Tribunal. The letter was sent to the applicant at his address for service, in accordance with the regulations. No response was received. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that he has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal. That evidence comprises the departments and Tribunal’s files relating to the application and information which the Tribunal has obtained from individual sources about matters referred to in the application.
   • As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.
   • The Tribunal wishes to question the applicant about the interview with DIMA, client services and the reason given to that interviewer about his departure from the PRC and about how he departed from the PRC.
   • The Tribunal also wished to question the applicant about his claims regarding his family background and his consequences. The applicant’s claim regarding these matters are at present very broad and lack detail. The Tribunal wishes to obtain from the applicant details regarding his claim of being detained because of his being outspoken against the PRC government following the flooding in Shaeynang so that the truth could be ascertained.
   • I am unable, on the evidence before me, to assess the nature and extent of any harm the applicant suffered in the past or might suffer in the future. His claims amount to no more than a series of unsupported assertions.
   • The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claim despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claim with him. A number of relevant questions are therefore left unanswered. I am not satisfied on the evidence before me, that the applicant has a well founded fear of persecution within the meaning of the Convention. (Court Book 61-62)
7. This matter came before me previously on 1 March 2007 and the application was dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the grounds:
   • a) that the court lacked jurisdiction to hear the application [r.44.06(2)(a)] of the Rules;
   • b) that there has been a delay in seeking remedies [r.44.06(2)(b)] of the Rules

The decision in SZJRF v Minister for Immigration & Anor [2007] FMCA 309 was delivered on 1 March 2007. That decision was appealed in the Federal Court in proceedings NSD 604/2007. Justice Dowsett allowed the appeal and remitted the matter to the Federal Magistrates Court for determination.

8. The matter was re-listed for final hearing before me on 8 February 2008 with the applicant represented by Liam Byrne of counsel. Mr Byrne filed written submissions explaining the applicant’s failure to attend the Tribunal hearing:
   • 5. In December 1995 he [the applicant] was introduced to a person called Mr Liu who claimed to be a migration agent. He paid Mr Liu $500 to prepare a Protection visa application. In the visa application, the applicant claimed to be a person to whom protection obligations were owed on numerous grounds including that he feared persecution in China because of his criticism of the official response to a disastrous flood in his local area, because of his being perceived as having anti-revolutionary sympathies and because of the “one-child policy” of the Chinese government. Mr Liu filled in the application and the applicant signed it. The completed application was not translated to the applicant. Unbeknown to the applicant, the application included incorrect residential and postal addresses for him.
   • 6. In February 1997, Mr Liu advised him that his Protection visa application was unsuccessful and that he could apply for review by the second respondent. Mr Liu advised that the Tribunal application would take a year or more to decide. The applicant paid Mr Liu a further $500 and MR Liu completed the review application and the applicant signed it. Again, the application was not translated for the applicant and again, unbeknown to him, the review application included incorrect residential and postal addresses for him.
   • 7. In about May 1997, the applicant tried to contact Mr Liu but was unable to.
   • 8. On 20 February 1998, the second respondent wrote to the applicant advising that it was not prepared to decide in the applicant’s favour on the basis of the papers before it and invited him to attend a hearing on 17 March 1998.
   • 9. The applicant did not receive the second respondent’s s.425 letter because of the fraudulent conduct of Mr Liu.
   • 10. Consequently, the applicant did not attend and was not represented at the hearing on 17 March 1998 and, on 3 April 1998, the second respondent made a decision adverse to the applicant.
   • 11. Due to the poor English and confusion caused by Mr Liu’s fraudulent conduct the applicant took no further action until about 2005 when he engaged Aozhong Immigration & Education Affairs Centre to obtain details of the Tribunal application.
9. Prior to the scheduled hearing on 8 February 2008 I reviewed all the material contained in the Court Book, the application and written submissions. At the commencement of the hearing I advised both counsel that I intended to adjourn the hearing for subpoenas to be issued to determine the identity of the person whose post office box appeared in all material filed in respect of this matter. It was alleged that Mr Liu could not be contacted to give evidence. The hearing was adjourned to 12 August 2008 to allow the parties to carry out appropriate enquiries with a view to bring Mr Liu before the Court to give evidence in respect of the applicant’s protection visa application and his alleged failure to notify the applicant of correspondence received from the Tribunal.

Evidence

10. The applicant filed an affidavit sworn on 5 February 2008 which sets out the circumstances of his claim. The applicant gave oral evidence and was cross examined with the assistance a Mandarin interpreter (Transcript of hearing, pp.4-11).

Consideration

11. An amended application containing revised grounds was filed at the commencement of the hearing on 12 August 2008. The grounds of the amended application are set out below.
12. This matter was previously adjourned to allow the applicant to subpoena certain post office records with a view to obtaining information about the owner of a post office box nominated as the address for service on his application for review before the Tribunal. Mr Byrne advised the Court that subpoenas had been issued but the post office indicated that records did not go back far enough to establish who controlled that post office box at the relevant time.

Ground one

1. The second respondent fell into jurisdictional error by finding that, the Chinese authorities’ becoming aware of the applicant’s application for refugee status would not lead to persecution was reached in the absence of any evidence.

13. This ground claims that the Tribunal was wrong in relying on information from the Australian embassy which said that it was not aware of any law in China which made applying for refugee status an offence. There appears to be a misunderstanding as the Tribunal did not rely on any such information in its decision-making process. However reference is made to this issue in the delegate’s decision published on 20 January 1997. This claim was considered at para.5.3.2 of the reasons:
    • In respect to 5.1.2, I considered that DIMA deals with refugee applications in strict confidence. No mark is placed on a passport to show that the bearer has applied and the existence of such an application would only be known if the applicant chose to publish it. Even if Chinese authorities knew that the applicant had applied for refugee status, I do not consider that this would lead to persecution. The Australian embassy in Beijing advised that it is not aware of any law in China which explicitly makes applying for refugee status an offence. (CB 38.8)
14. Ms McWilliam, counsel for the respondents, submits that this ground only goes to the merits of the decision, in other words, as to whether or not findings of fact were wrong. Further it is a matter for the Tribunal to assess what weight, if any, to give to country information: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. I am satisfied that ground one of the application does not establish any jurisdictional error and should be dismissed.

Ground two

2. The second respondent fell into jurisdictional error by making a decision adverse to the applicant in circumstances where the applicant had been deprived of the opportunity to attend a hearing pursuant to section 425 of the Migration Act 1958.
Particular

• In about February 1997, a person, known to the applicant as Liu purporting to be a migration agent, completed the applicant’s application to the second respondent for a review of the first respondent’s refusal of the applicant’s protection visa application. Liu did not arrange for the review application to be translated to the applicant and included erroneous address and contact details in it. Those acts prevented the second respondent from inviting the applicant to a hearing and from notifying him of the result of the hearing and constituted a fraud on the applicant and on the second respondent.

15. Mr Byrne submits that there are two issues in respect of this ground, namely, whether the actions of Mr Liu enable an inference of fraud to be drawn, and if there are sufficient grounds to enable the operation of the principle in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
16. The discussion of fraud in SZFDE begins at [11] and states significantly at [13]-[14]:
    • [13] However, several points should be made here. First, given the equitable nature of their origins described above, principles of public law concerning impropriety in the exercise of statutory powers have not had the focus upon what might be called the "red blooded" species of fraud which engages the common law. Secondly, with respect to references in the public law decisions to good and bad faith and the like, the following observation in a leading English text is in point:
    • “These add very little to the true sense, and are hardly ever used to mean more than that some action is found to have a lawful or unlawful purpose. It is extremely rare for public authorities to be found guilty of intentional dishonesty: normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet the courts constantly accuse them of bad faith merely because they have acted unreasonably or on improper grounds. Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context 'in good faith' means merely 'for legitimate reasons'. Contrary to the natural sense of the words, they impute no moral obliquity.” (Wade and Forsyth, Administrative Law, 9th ed (2004) at 416)
    • Aickin J made observations to similar effect in R v Toohey; Ex parte Northern Land Council. ((1981) [1981] HCA 74; 151 CLR 170 at 232–233. See also Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at 67 [93], 95 [181])
    • [14] Thirdly, in the present case the appellants do not challenge the description by French J of the Tribunal as having acted "blamelessly" ((2006) [2006] FCAFC 142; 154 FCR 365 at 400). But the appellants do direct attention to the effect upon the processes of the Tribunal of the dishonest acts and omissions of a third party, Mr Hussain. In this regard, the appellants pray in aid another generally expressed precept drawn from private law and from the significance of dishonesty in the litigation of private rights. This is expressed in the oft-repeated proposition that whilst on one hand fraud may be infinite, on the other hand "fraud unravels everything".
17. The Court in SZFDE went on to draw inferences of fraud to the relevant status on the basis of evidence that the person who attended the migration agent was advised not to attend the Tribunal hearing. This was considered at [39]:
    • [39] The evidence of the first appellant was that when, with her husband, she met Mr Hussain to discuss the Tribunal's letter of invitation dated 27 June 2003 which invited attendance at a hearing of the Tribunal Mr Hussain used words to the effect:
    • It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the [Tribunal] you will say something in contradiction to what I will write. Don't worry. I'm doing what is best for you.
    • A letter to the then Minister, dated 15 September 2003, was composed by Mr Hussain in the name of the second appellant. It was headed "Application for Consideration [under] s 417 of the Migration Act". Section 417 conferred a power upon the Minister, if the Minister thought it was in the public interest to do so, to substitute for a decision of the Tribunal a decision more favourable to an applicant. This and further requests of this nature were rejected.
18. In the matter before this Court, the migration agent charged the applicant $500 for the provision of services in relation to the visa application. The agent filled out the application without having taken proper instructions as to its contents. Mr Byrne submits that the applicant confirmed this in cross examination. The agent provided a series of incorrect addresses in the visa application, crucially the post office box address to which correspondence was sent and also other addresses which, on the untested evidence of the applicant, were not where he had lived. Furthermore, the migration agent was not available to the applicant after the Tribunal application was lodged, although the applicant conceded that had not given the agent details of his change of address. The applicant also gave evidence that he had repeatedly attempted to contact the agent using the telephone number he had been given and was told that there was no-one of that name there.
19. Mr Byrne submits that there is a strong argument for inferring fraud in relation to these facts. He submits that the term fraud does necessarily not involve a level of dishonesty but, in a common law sense, is an action which vitiates the processes of the Tribunal.
20. The Full Federal Court decision in Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 found that fraud in that case was not made out to the relevant standard. In that case, a migration agent (or someone acting as a migration agent) failed to disclose the document as to his agent status and took money for the services not rendered in accordance with the Act, two issues presently before this Court. However another element in SZLIX which Mr Byrne submits distinguishes it from this case was the apparent deliberate inclusion of incorrect details in a document and the failure to take instructions as to its contents.
21. Mr Byrne submits the difference in approach between the High Court in SZFDE and the Full Federal Court in SZLIX is contained in SZLIX at [29]:
    • [29] If the respondent’s oral evidence is to be accepted concerning his chain of communication with his agent – this is not the subject of any explicit finding – again it is not possible properly to infer from the material before his Honour that it was the agent’s dishonest failure that resulted in the content of the Tribunal’s invitation not being conveyed to the respondent. It is equally probable that that failure could be ascribed to an error or omission of his friend.
22. Another point of distinction is that in SZFDE, the apparent errant migration agent was a known person, whereas Mr Liu in this case seems to have disappeared after taking the last instalment of his money and lodging the final document which he prepared. Despite the applicant’s attempts, he was unsuccessful in locating and properly identifying the migration agent.
23. Mr Byrne submits that the second issue in this ground is that if there is sufficient evidence to raise an inference of fraud, then the principle in SZFDE should be invoked. Mr Byrne concedes that the relief sought is discretionary in nature and that the long and inadequately explained delay is a matter that needs to be taken into account in the exercise of the Court’s discretion.
24. The Court was referred to the decision in The Waterside Workers’ Federation of Australia v Gilchrist, Watt and Sanderson Ltd (1924) 34 CLR 482 at 516-519. In that decision, Isaacs and Rich JJ discussed the discretionary nature of the remedy of certiorari:
    • We therefore think the jurisdiction in certiorari is in all cases discretionary. Judicial discretion, however, is not capricious, but must be exercised in a reasonable manner according to the circumstances.
25. Mr Byrne submits that the inference that may be drawn from the evidence in this matter is that the applicant is an aggrieved party and this should be taken into account in the exercise of the Court’s discretion.
26. Ms McWilliam submits that in relation to the evidence on fraud, the documentary evidence filed in these proceedings and the oral evidence given in Court need to be taken into account. By way of his affidavit the applicant indicates that he relied on his migration agent to advise him of his Tribunal application but that he had moved house three times and did not tell him. In May 1998, the applicant began trying to contact his migration agent. The Tribunal decision was made in April 1995 and it had been finalised by the time that the applicant attempted to contact his migration agent. Ms McWilliam submits that the applicant confirmed that he had signed certain documents although he could not remember the dates. However, the documents speak for themselves and, where there is a date and lodgement stamp, one can infer that the documents were circulated and signed on or around that date.
27. The protection visa application contains a post office box address in Ashfield (CB 7) together with a street address in Auburn (CB 13). They were the only addresses provided to the delegate. The applicant confirmed in cross examination that he was not notified of his visa application being refused, but that his migration agent had been. An inference can be drawn from this that the agent knew that the applicant’s protection visa application had been refused. The letter notifying the delegate’s decision was sent to both the Auburn address and the post office box in Ashfield (CB 29). It can be inferred that the agent received notification by way of either of these addresses with the most likely being the Ashfield post office box given that the applicant claimed he never lived at the Auburn address. The Auburn post office box was given as the address for service on the Tribunal application form (CB 40). Ms McWilliam submits that this confirms that the applicant relied on the migration agent as his point of contact for the Tribunal.
28. Ms McWilliam further submits that there is no fraud in using this post office box address on the Tribunal application. Inquiries have been made as to who controlled the post office box at the time and the inquiries have produced no results. Ms McWilliam submits that there is sufficient material before the Court by way of documents and the applicant’s oral evidence that this was not dishonest conduct at the time the application was filed and the address of service was given as the agent’s post office box.
29. From February 1997 when the application was lodged until February 1998 when the Tribunal invited the applicant to attend a hearing, a year had passed during which there was no contact and nothing issued by the Tribunal. By the time the invitation was issued in February 1998, the applicant confirmed that he had changed his address. In December 1997, the applicant moved to Belmore (his third move) but he did not notify either the Tribunal or his agent of this. Ms McWilliam submits that in the circumstances, this is not a case about fraud but about an applicant who may have had a representative but had failed to fulfil his obligation to let that representative and the Tribunal know of his change in address.
30. Ms McWilliam submits that an allegation of fraud is a serious one which would need a Court to be satisfied in accordance with the principles in Brigenshaw v Brigenshaw [1938] HCA 34; (1938) 60 CLR 336. This requires clearly establishing that fraud and dishonest conduct on the part of the migration agent had occurred. Ms McWilliam argues that in this case, when the agent completed the Tribunal application form, the post office box address was appropriate and there was no dishonest conduct. The fact that it later changed and the applicant later moved do not make the post office box a dishonest notification at that time.
31. Ms McWilliam referred the Court to SZLIX at [28]-[30]:
    • [28] The Tribunal, in notifying the respondent of the second scheduled meeting, followed the same course of notification as it did in relation to the first. It addressed the invitation to the respondent care of the Auburn post office box. The wrong alleged to have been done by the agent is the dishonest failure to honour his representation to convey to the respondent the date of the new hearing.
    • [29] If the respondent’s oral evidence is to be accepted concerning his chain of communication with his agent — this is not the subject of any explicit finding — again it is not possible properly to infer from the material before his Honour that it was the agent’s dishonest failure that resulted in the content of the Tribunal’s invitation not being conveyed to the respondent. It is equally probable that that failure could be ascribed to an error or omission of his friend.
    • [30] Even assuming both that the invitation reached the agent and that the agent had undertaken to notify the respondent — his Honour (at [18]) appears to make this latter finding — there is again, in our view, no substratum of facts which would justify the inference that the agent dishonestly omitted to inform the respondent. That failure could as easily be ascribable to oversight or negligence.
32. Ms McWilliam submits that in respect of the matter of discretion the oral and documentary evidence before the Court establishes that there was a seven year delay between 1998 when the decision was handed down and 2005 when the applicant lodged his Freedom of Information request. It is not an issue that the applicant did nothing in 1998 on learning that he had no point of contact with his migration agent. He did not approach the Tribunal. He did not write to anyone. He did not seek any help. In oral evidence he indicated that he did not know what to do. It is submitted that these explanations are inadequate for the delay of seven years. In Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 at [30], Branson, Emmett and Bennett JJ stated:
    • [30] We consider it appropriate to start from the position that an applicant for judicial review of an administrative decision made more than seven years earlier is required to offer a satisfactory explanation of why the application was not made earlier. The evidence and submissions of the first respondent bearing on this issue do not constitute a satisfactory explanation. Rather they have satisfied us that he deliberately undertook a course of conduct that would render it difficult, if not impossible, for the Tribunal, his migration agent and the Department of Immigration to find him. We are also satisfied that he made no real effort to ascertain the fate of his application to the Tribunal. These conclusions render it unnecessary for us to consider the apparent strength of the first respondent’s claim to be entitled to a protection visa.
33. Ms McWilliam submits that in a situation with a seven year delay and inadequate explanation for the failure to do anything during that period, the Court should not exercise its discretion to remit the matter. The exercise of discretion only arises when it is established that there was relevant fraud on the part of the migration agent.

Conclusion

34. There is no dispute between the parties that the applicant was assisted in the preparation of his protection visa application and subsequent review application by a person who took money to act as a migration agent. It is accepted that this person provided no proper details as to who he was and who was not contactable after he prepared and filed the application. Counsel for the applicant claims that the application was prepared without proper instructions and recorded three addresses which, on the evidence, were not those of the applicant.
35. I acknowledge the arguments presented by both counsel and note the following issues that influence my decision. In reply to the question “Did a migration agent assist in preparing this application?” in the applicant’s protection visa application, is the answer “No” (CB 7). This suggests that the person who prepared the document did not hold themselves out to be or wanted to be identified as a registered migration agent. The term “migration agent” appears either to have been loosely applied or an assumption made that this person was in fact a migration agent. I note that these events occurred before the formation and operation of the Migration Agents Registration Authority which now requires registration for all migration agents.
36. In his affidavit, the applicant indicated that he speaks Mandarin and that when he arrived in Australia, he could not read or write English and only spoke a small amount. At the hearing the applicant gave oral evidence through a Mandarin interpreter and indicated to the Court that he cannot read English but can read numbers.
37. The circumstances of the applicant’s introduction to the migration agent are set out in his affidavit as follows:
    • 5. From my arrival in Sydney on about 22 December 1995 until about May 1996 I lived in a flat at Park Street Campsie (“the Campsie flat”) with a man named Mr Jin, friend that I knew from friends in China.
    • 6. In about December 1995, Mr Jin introduced me to a man called Mr Liu at the Campsie flat. I understood that Mr Liu was a migration agent who could help me with my refugee visa application. I had a conversation with him, in Mandarin. Mr Liu explained that to apply for a refugee visa I had to file an application stating the reasons I had to leave China. I explained to Mr Liu the circumstances in which I left China. Mr Liu told me that I had to pay him $500 to do the application.
38. In the protection visa application in response to question 13 is the answer:
    • Write the address where you want us to send correspondence to deal with this application:

[Ashfield post office box address]

This entry in itself does not establish any wrongdoing as many applicants elect to have correspondence forwarded to their agents because of their own inability to read English and their dependence on the agent to advise what actions need to be taken.

39. In Form C of the application the applicant lists his residential address as at Bever Street, Auburn. In his affidavit (reproduced above) he states that he was living in the Campsie flat at the relevant time. On the evidence before the Court it is not possible to determine whether the Ashfield post office box or the Auburn address was that of the agent. However, one must have been correct as the delegate’s letter of 18 January 1997 was received by the agent as established in the applicant’s affidavit:
    • 8. In about February [1996], Mr Liu visited me again at the Campsie flat. Mr Liu said words to me to the following effect:
      • Your visa application was refused a visa. You can apply to the Tribunal to review the decision. I can do your application again and it will cost $500.
40. Consequently, at the time of filing the protection visa application and the application for review, at least one of the addresses recorded in those documents was correct in order for there to have been receipt of the Department’s letter and initiation of subsequent procedures. There is insufficient evidence before the Court to establish the actual status of Mr Liu and his holding himself out to be a migration agent may have been false. However, because of his lack of English and understanding of application procedures, the applicant was forced to rely on the assistance of others. He was introduced to Mr Liu who offered to assist in preparing the application. At that stage of preparation, the evidence does not support the claim that there was an attempt to commit fraud on the Tribunal by the use of incorrect contact addresses.
41. On the applicant’s own admission in his affidavit and oral evidence, he moved home three times but did not inform the Tribunal or his migration agent of this. This represents a failure to fulfil his obligations. Permitting a period of eight years to pass before finding out the outcome of the Tribunal decision counts against the applicant in the Court exercising its discretion. I am satisfied that I should follow Minister for Immigration & Citizenship v SZIQB (supra).
42. Submissions were made that Mr Liu prepared the application without any proper instructions and that the final application was not translated or explained to the applicant by anyone other than Mr Liu. I note that the person named as sharing the Campsie flat with the applicant was a Mr Jin. Significantly the interpreter’s declaration on the protection visa application was completed by a Yi Feng Hu, who provided contact details and made the statement that he/she had “faithfully interpreted all the contents of the application form into the above language [Mandarin] and faithfully interpreted the applicant’s responses in English”. No evidence was led in respect of this person, however, it does raise the question of whether the preparation process was as flawed as suggested in submissions.
43. I am not satisfied that the claim of fraud has been established to the level required. The application should be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 30 January 2009