【Classic Cases】ZhXX v Minister for Immigration & AnXX [2006] FMCA 1XX3

FEDERAL MAGISTRATES COURT OF AUSTRALIA

 ZHXX v MINISTER FOR IMMIGRATION  & ANXX

[2006] FMCA 1XX3

MIGRATION – Motion for reinstatement of judicial review application – application dismissed by consent – whether consent improperly obtained considered – whether consent given mistakenly considered – adverse credibility conclusions on the applicant’s evidence in support of the motion – motion dismissed.

Federal Magistrates Court Rules 2001 (Cth)

Wati v Minister for Immigration (1997) 78 FCR 543

Applicant:

QX ZHXX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1XX7 of 2003

Judgment of:

Driver FM

Hearing date:

29 August 2006

Delivered at:

Sydney

Delivered on:

15 September 2006

ORDERS

(1)   The motion filed on 14 February 2006 is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY

SYG1XX7 of 2003

QX ZHXX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1.    I have before me a motion of which notice was given on 14 February 2006 seeking an order setting aside orders made by me (ostensibly by consent) on 1 June 2005 dismissing a judicial review application to review a decision of the Migration Review Tribunal ("the MRT") and to make a costs order. The motion also seeks ancillary relief. In brief, Ms ZhXX asserts that a miscarriage of justice has occurred and that in consequence the orders ostensibly made by consent should be set aside, permitting her to resume her earlier judicial review application[1] which sought judicial review of a MRT decision made on 6 August 2003 affirming a decision of the delegate of the Minister not to grant Ms ZhXX a student visa.

2.    The motion came before me on 22 May 2006 at which time I adjourned the hearing of it until 25 May 2006. On that day it was apparent that serious issues were being raised which required more preparation and a full day’s hearing. I made orders then to prepare the matter for hearing on 29 August 2006.

The evidence

3.    The motion is supported by four affidavits by Ms ZhXX. The first was made on 10 February 2006 and deals with the applicant’s migration history and her dealings with a migration agent KXX KwXXg ShuX. Ms ZhXX also deposes as to her dealings with a DaXXd YiX in relation to her judicial review application in this Court. Ms ZhXX makes serious allegations about Mr YiX. She deposes that after paying $40,000 to Mr YiX to represent her in the judicial review proceeding she discovered that Mr YiX is neither a solicitor nor a registered migration agent and that he refused to assist her in November 2004 when she required his assistance at a directions hearing. She deposes that she attended court herself at John Maddison Tower and understood that she had obtained an adjournment until June (presumably in the following year).

4.    Ms ZhXX deposes as to a telephone conversation in May 2005 with a man who she thought was a representative of the Court and who told her that her case was hopeless and that she should consent to a dismissal order in order to avoid substantial legal costs. She deposes as to her subsequent receipt of correspondence and her signature of consent orders which I later made. Ms ZhXX deposes that she later found out that the person she dealt with was the solicitor representing the Minister.

5.    In her second affidavit made on 22 May 2006 Ms ZhXX provides further details in relation to alleged fraud by her former migration agent Mr ShuX, her attendance at a court directions hearing, a telephone conversation with Mr IsXXn MuXXalib (solicitor for the Minister) and her misunderstanding of what was occurring.

6.    In her remaining two affidavits made on 25 May 2006 and 26 July 2006 Ms ZhXX responds to affidavits by Mr MuXXalib.

7.    Ms ZhXX adopted her affidavits in oral evidence in chief and was also cross-examined on them. Before she gave any oral evidence I tested her knowledge of English. I formed the view that Ms ZhXX had a good command of written English and a reasonable command of spoken conversational English. However, her first language is Mandarin Chinese which she speaks at home. She uses both English and Mandarin Chinese in everyday communications away from home. Ms ZhXX requested the assistance of a Mandarin interpreter and I was satisfied that, given the formal and technical aspects of a court proceeding, the request should be granted. Her evidence was given through a Mandarin interpreter.

8.    In oral evidence in chief Ms ZhXX confirmed that each of her affidavits was read back to her in the Chinese language and that she had the opportunity to satisfy herself that the contents were true and correct. She acknowledged an inconsistency between paragraph 13 of her affidavit made on 14 February 2006 and paragraphs 7 of her affidavit made on 25 May 2006. She said that to the extent of the inconsistency, paragraph 7 of the latter affidavit should be preferred. 

The inconsistency related to the fact of whether Ms ZhXX had made a telephone call to Mr MuXXalib on 18 May 2005. Ms ZhXX concedes in paragraph 7 of her affidavit of 25 May 2006 that she did indeed telephone Mr MuXXalib after receiving a call from him.

9.    Under cross-examination Ms ZhXX:

i) acknowledged that she studied English in Australia from November 1999 and had undertaken studies in English from then until 2002. She has not undertaken any studies since that time;

ii) acknowledged that her proficiency in English as recorded on pages 26 and 64 of the court book (which I received as evidence) was accurate;

iii) acknowledged that she could read annexure H to her first affidavit (being correspondence from the Minister’s solicitors providing proposed consent orders for her to sign) but asserted that at the time she only understood about 40 per cent of the letter and did not understand that the letter was from the Minister’s solicitors;

iv) denied that at the time she knew what the concept of a "lawyer" was but added that she did understand that the letter dealt with the withdrawal of her application before the Court and thought that it meant "cancellation";

v) acknowledged that she signed the consent orders but asserted that she did not understand what she was signing;

vi) acknowledged that in May 2005 she was still represented by Mr YiX but stated that she did not discuss the proposed consent orders with him or anyone else;

vii) agreed that she had been foolish;

viii) denied that paragraphs 12 and 13 of her first affidavit were not accurate but acknowledged that paragraph 13 was not entirely correct;

ix) asserted that she only understood about 40 per cent of what Mr MuXXalib had said in her conversations with him but explained that she was able to recall the detail of those conversations later when she prepared her affidavits after speaking to her solicitor;

x) asserted that the initial telephone call she says she received from Mr MuXXalib she thought might have been from her real estate agent and that she rang him back after first calling her real estate agent and satisfying herself that it was not him;

xi) asserted that she had only one mobile phone and one mobile phone number between July 2003 and June 2005 and that the mobile phone number was that shown on her judicial review application;

xii) acknowledged that she provided a different telephone number to Mr MuXXalib in conversation with him and that this was her boyfriend’s number;

xiii) insisted that the version of the conversations deposed to by Mr MuXXalib are not accurate and was adamant in that assertion notwithstanding that she said she could only understand about 40 per cent of what Mr MuXXalib had said;

xiv) denied that it was she who initiated the discussion with Mr MuXXalib about settlement of the judicial review proceeding;

xv) acknowledged that she returned the signed consent orders to the Minister’s solicitors at the address nominated by them but maintained that she thought that she was writing to the Court;

xvi) in response to questions from me, stated that she only attended court on one occasion prior to the consent orders being made and that this could have been on 18 December 2003 rather than in November 2004, but insisted that she did not go into the courtroom and that she waited outside, signing procedural consent orders outside of court;

xvii) in response to further questions from me, acknowledged that she inspected the court lists on the ground floor of the Court before attending court and that the court list she inspected could have been either the court list for 20 November 2003 or 18 December 2003[2];

xviii) agreed that it was strange that the bench sheet for 18 December 2003 records Ms ZhXX attending in person and suggested that a possible explanation was that someone else went into the courtroom without her knowledge and said that they were her;

xix) denied that paragraph 5 of her affidavit of 25 May 2006 was an admission that she attended the court hearing on 18 December 2003, adding that in that paragraph she only intended to say that she attended the court building and signed a paper that she now knows to be consent orders.

10.   There was no re-examination of Ms ZhXX.

11.   The Minister opposes the motion. The Minister relies upon two affidavits by Mr MuXXalib made on 24 May 2006 and 23 August 2006 and the affidavit of BeX CrXXer made on 24 August 2006. Mr CrXXer deposes as to a conversation he had with Dr ShuX recently. I agreed to accept that evidence as evidence of what Mr CrXXer recalls being told by Mr ShuX but not as evidence of the truth of what he was told.

12.   Mr MuXXalib was cross-examined on his affidavits. He resisted suggestions that his recollection of the conversations he says he had with Ms ZhXX are inaccurate. He specifically resisted suggestions that he initiated the discussion with Ms ZhXX about the termination of the judicial review proceeding and maintained that it was she who first contacted him to discuss withdrawal of her application. In response to questions from me, Mr MuXXalib read his file notes of those conversations which are annexed to his second affidavit and written in rough cryptic form.

Submissions

13.   Ms Welshman, for Ms ZhXX, relies upon her written submissions filed on 18 August 2006. In her oral submissions she sought to deal with the difficulties which became apparent during the cross-examination of Ms ZhXX about her evidence. She submits that, notwithstanding those difficulties, Ms ZhXX’s account of her dealings with Mr MuXXalib and her lack of understanding of what she was doing when she signed the consent orders should be accepted.

14.   Mr LlXXd, for the Minister, also relies upon his written submissions filed on 23 August 2006. In his oral submissions he stressed that it was extremely rare for a court to re-open a judgment and that Ms ZhXX would need to demonstrate an accident without any fault on her part which prevented her from being heard: Wati v Minister for Immigration (1997) 78 FCR 543 at 551. Mr LlXXd submits that, even if Ms ZhXX was to be believed on her evidence, she was at fault because she signed the consent orders without consulting anyone about them, notwithstanding that she had paid $40,000 to someone she thought was a lawyer to represent her and notwithstanding that she had a boyfriend available (whose number she had given to Mr MuXXalib to call) who understood English and who could have assisted her.

15.   Mr LlXXd submits that Ms ZhXX should not be believed upon her evidence because of serious inconsistencies and implausibilities that emerged. He also draws attention to the delay in bringing the motion following the consent orders and submits that the basis upon which Ms ZhXX now seeks the opportunity to pursue her judicial review application does not point to a serious issue of fraud on the part of her migration agent, but rather dissatisfaction with the quality of his services, which could not establish jurisdictional error.

Reasoning

16.   It is by no means clear that, absent statutory power to do so, an inferior court of record in the position of this Court can vary or set aside orders that have been entered. For the purposes of this judgment I have proceeded on the basis that a power exists to do so in the exceptional circumstances referred to in Wati v Minister for Immigration (1997) 78 FCR 543 at pp549-552. Otherwise, the power of this Court to vary or set aside its orders is as set out in rule 16.05 of the Federal Magistrates Court Rules. In the present case that would require proof of fraud in obtaining the orders. Even under the general law Ms ZhXX would bear the burden of establishing a serious miscarriage of justice in circumstances where she was not at fault and where the effect has been to prevent an adjudication on the legal merits of the case.

17.   Ms ZhXX proved to be an unsatisfactory witness. She demonstrated a good command of written English and a reasonable command of spoken English before I provided her with an interpreter. She asserts a lack of understanding of what was said to her in her conversations with Mr MuXXalib when they discussed the termination of her judicial review proceeding but nevertheless asserts the power to recall accurately what was said. She also asserts the capacity to deny the accuracy of Mr MuXXalib’s version of what was said, even though that is supported by contemporaneous file notes which corroborate his version. It is also highly implausible that a reasonably intelligent person, as Ms ZhXX is, would consult no one about an important document that, even on her own account, would result in the "cancellation" of her judicial review application, especially, as on her own account, she had invested $40,000 of her money in what she thought was legal representation.

18.   Ms ZhXX’s evidence about her attendance at court on 18 December 2003 was wholly unsatisfactory. In her first affidavit she asserted that her only attendance at court was in November 2004 (when there is no record of any court event in her matter) and in her affidavit of 25 May 2006 at [5] she acknowledges attending the hearing on 18 December 2003. She sought to retreat from that apparently unequivocal statement by asserting that she did not in fact attend the hearing but waited outside court. She asserted that she came to court alone and was mistaken in thinking that she had come to John Maddison Tower. 

At the time the Court did not operate out of that building and Ms ZhXX acknowledged that she had come to Queens Square. On Ms ZhXX’s account, she was forced to come to court because her representative had declined to attend because she would not pay him any more money (in addition to the $40,000 she claims she had already paid). Ms ZhXX was unable to provide any satisfactory explanation for the court record which states that she attended in person (and that she did so without an interpreter and that her English "seems good").

19.   Ms ZhXX acknowledged signing the consent orders that were made by Registrar Tesoriero on that day but maintained that she did so outside the courtroom and that she never entered the courtroom. I can think of only three possible explanations for the court record of the court hearing on 18 December 2003. One is that the registrar conducted the directions hearing in a highly irregular manner, noting that the applicant was in attendance in court in person when in fact she was not. The difficulty with that explanation is that the registrar has noted on the bench sheet that the person who attended had good English and he could only have gained that impression by dealing with whoever appeared in court. Another possible explanation is that someone attended court pretending to be Ms ZhXX. She claims she came alone and that the person who was meant to be representing her refused to do so. In those circumstances, it is hard to imagine that someone from Mr Liu’s office would have attended and impersonated Ms ZhXX. Also, as was pointed out by Mr LlXXd in his oral submissions, the Minister was legally represented by Ms Howey, who also signed the consent orders made on that day. It is impossible to believe that Ms Howey could have failed to notice that a person in court claiming to be Ms ZhXX was not the same person she dealt with outside court when obtaining her signature on the short minutes. The third and most likely explanation for the bench sheet is that Ms ZhXX has been untruthful in her oral evidence and that she did indeed attend the hearing on 18 December 2003, consistently with [5] of her affidavit on 25 May 2006. I so find.

20.   The critical dispute of fact to resolve is whether it was Ms ZhXX or Mr MuXXalib who initiated the discussion about the termination of the judicial review proceeding. Ms ZhXX’s account, that Mr MuXXalib rang her out of the blue to discuss a consent dismissal or withdrawal of her application is improbable. Mr MuXXalib’s account, that it was Ms ZhXX who contacted him to discuss that matter, is more plausible and is supported by his contemporaneous file note. Significantly, that file note (which is annexure IFM1 to his second affidavit) records that he wrote down the address and mobile telephone number of Ms ZhXX given to him in that first conversation. If he had telephoned Ms ZhXX on the mobile telephone number contained on her judicial review application (as she asserts) why would he need to note a different telephone number?

21.   I accept Mr MuXXalib’s evidence in preference to that of Ms ZhXX. 

It was she who telephoned him on 18 May 2005 and it was she who initiated the discussion about withdrawing her judicial review application. Mr MuXXalib proposed the mechanism of a consent dismissal and persuaded her that this would be advantageous in relation to costs. Ms ZhXX knew what she was doing when she signed the consent orders. She later thought better of it, which has led to the present proceeding but there is a wholly insufficient basis for setting aside the consent orders that I made. Neither in the terms of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) nor under the general law, has Ms ZhXX advanced any persuasive reason to set those orders aside. They were made with her knowledge and consent and there has been no miscarriage of justice.

22.   It is unnecessary to comment upon the other matters dealt with in the submissions by counsel.

23.   I will hear the parties as to costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date: 15 September 2006

[1] filed on 29 August 2003

[2] I received the three court lists for the three interlocutory listings in late 2003 as exhibits – exhibits C1, C2 and C3