Case: SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 93
Outcome: followed
An applicant for review is bound by the way in which his agent acts on his behalf even though the agent may do things that cause the applicant to be unaware of what is happening. As Jacobson J said in SZEYH v Minister of Immigration and Multicultural and Indigenous Affairs [2006] FCA 93 at [25] : 'In NADK of (2002) v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that " the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance" .' 34 I do not see any error in what his Honour said. However, the appellant argued that because of the irregularity of what purported to be the appellant's signature on the form 956 sent in by Mr Sardar on 28 April 2006, the Tribunal ought to have realised that the appellant had not authorised Mr Sardar to receive communications and then in some way it should then have not merely communicated with Mr Sardar or perhaps not communicated with him at all but sought to communicate with the appellant. A number of hurdles appear to this argument. 35 The first involves the fact the appellant, on the material before the Court, namely that I have set out, appeared to authorise Mr Sardar to make the application. There is no evidence that his signature is a forgery. I accept the signature looks different. I have already dealt with an application to adduce further evidence on appeal and rejected it for reasons I gave earlier today. Accordingly, on the material before me, in the conduct of this appeal, there is no evidence that the signature, albeit that it was different to the ordinary signature appearing on other documents at least that the Tribunal had before it, would have, in the ordinary course, been looked at by the Tribunal as being or be thought by it to be anything other than regular. 36 Secondly, the appellant sought an adjournment from the Tribunal which was rejected. Communication of the rejection was made to the agent. If Mr Sardar, was unauthorised, to be the appellant's agent because the signature on the form 956 was a forgery or if the Tribunal had accepted the reasoning which I am asked to accept that a glance at the form 956 would have shown Mr Sardar had put forward a signature that could not be relied on as that of the appellant, then communications with him should have been of no moment to the Tribunal. The fact is Mr Jivani was previously notified of the hearing and had sent back, as recently as 17 April 2003, a form of response to an invitation to hearing indicating that the appellant knew of the hearing and wished to give evidence. Mr Jivani had not sought any adjournment. 37 A party is not entitled to blow hot and cold about a position such as that which is relied on here. What the appellant is seeking to do is approbate the application for an adjournment as being made on his behalf but reprobate its source, namely Mr Sardar. Albeit this is an application for judicial review, it is difficult to understand why a person in the position of the Tribunal, having received an application for adjournment apparently made on behalf of the appellant and having communicated the refusal of that application to the person who made it, should be bound to go behind that communication and communicate directly with the appellant in the circumstances of the notification of the application at about 4 o'clock in the afternoon before the hearing and its consideration and rejection early the next morning.