Minister for Immigration and Citizenship v Lu

Submissions on behalf of the Minister 21 Mr Johnson SC for the Minister contended that the various findings made by the learned Federal Magistrate entailed the conclusion that Ms Lu had intended to achieve "her immigration result through bribery and that she paid money towards that purpose." Her failure to respond to the invitation or request of the Tribunal was said to be part of that plan. As a result, the Minister contended, there was no jurisdictional error in the Tribunal's having proceeded in the way described at [4] of these reasons. That conclusion, it was said, was unaffected by the fraudulent conduct of Ms Zhao towards Ms Lu or the latter's mistaken belief that money which she had paid to Ms Zhao would be applied in bribing an official with authority to effect a favourable outcome of her visa applications. 22 According to the Minister's argument, Ms Lu's conscious choice not to respond to the Tribunal's invitation meant that its processes, or the exercise of its jurisdiction, were not relevantly "disabled." In that sense, the present case was analogous to SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211, where Middleton J, after noting, at [46], that "the appellant herself was complicit and knowingly involved in the decision to mislead the Tribunal as to her place of residence", observed, at [47]-[48]; 47 SZFDE 232 CLR 189 does not stand for the proposition that a failure by an applicant to attend the Tribunal hearing due to the fault or conduct of a third person bears the result that the Tribunal decision to proceed under s 426A of the Act is always vitiated by error. 48 This is a case where the appellant did not attend the Tribunal hearing due to a combination of factors - her own lack of diligence, receipt of some misinformation or bad advice from a third party, and choosing after some persuasion not to attend. None of these matters amounts to fraud because there is no relevant 'fraudulent' conduct vis-à-vis the appellant. The real reason for the appellant not attending is not contained in the various matters particularised by the appellant in the Further Amended Notice of Appeal, but was the appellant's own decision not to attend. The appellant consciously consented to the Tribunal disposing of her case without her appearance, and in the circumstances the legislative scheme and processes of the Tribunal were not in any way disturbed. 23 Moreover, Mr Johnson argued, had the bribery contemplated by Ms Lu been implemented successfully, the favourable result so achieved would have been vitiated by fraud and a nullity. Ms Lu's complicity in that fraud would have deprived her of any legal remedy and she cannot be in any better position because the fraud which she intended was not effectuated. 24 The fact that Ms Lu was herself the victim of a collateral or related fraud perpetrated by Ms Zhao cannot, on the Minister's argument, mean that the Tribunal was guilty of jurisdictional error. To hold otherwise would allow Ms Lu to "take advantage of her own wrong" contrary to the principle enunciated by Lord Diplock in Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180, at 189. That principle was applied by a Full Court of this Court in relation to an alleged fraud on the Tribunal in SZLHP, where Branson J considered, at [12]-[13], a submission that the reasoning of the High Court in SZFDE did not recognise any distinction based on the identity of the person perpetrating the fraud or the person on whom it is practised. Her Honour said; 12 The appellant's submission is too broad to be accepted. It would, as the appellant both recognised and intended, allow a person successfully to contend that, by reason only of the person's own fraudulent conduct, the jurisdiction of the Tribunal remained constructively unexercised. Such an approach is inconsistent with the long established principle that courts do not allow a person to maintain an advantage obtained by the person's own fraud (Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713). It would also significantly undermine the legislative restraint on a person making more than one application for a protection visa (see s 48A of the Migration Act 1958 (Cth)). 13 The reasons for judgment of the High Court in SZFDE can not be understood in isolation from the factual circumstances there under consideration. In SZFDE at [28] the High Court drew attention to the fact that the case concerned "third party fraud" where the applicant for judicial review had not colluded in the fraud practised on the review body and did not then learn of the fraud but complained of it in a subsequent proceeding. That is not this case. 25 In the same case, Lindgren J agreed that SZFDE was distinguishable in that way and observed, at [28], that; It would be perverse if a person whose fraud practised on the Tribunal had caused it not to accord that person natural justice could be heard to complain. 26 The Minister also took issue with the finding of the learned Federal Magistrate, noted at [18] above, that Ms Zhao's motive in advising Ms Lu not to respond to the Tribunal's invitation had been to hide from Ms Lu the fact that nothing was being done to further her visa applications. That finding was said to be inconsistent with the finding that, at the time when Ms Zhao advised Ms Lu to leave the Tribunal's invitation unanswered, the innocent migration agent, Mr Eyeson-Annan, was acting for Ms Lu and no occasion had arisen for "Chris" or Ms Zhao or anybody else to do anything to further, by corrupt means, Ms Lu's visa applications. There was, therefore, at the relevant time no inactivity or lack of progress to hide. 27 The final and further or alternative submission advanced on behalf of the Minister was that the proposed corruption in which Ms Lu had been found to have been complicit was a ground on which prerogative relief should have been refused as a matter of discretion. A similar exercise of discretion was approved in SZLHP where Branson J observed, at [21]; Nor, in my view, has it been demonstrated that the Federal Magistrate erred in principle in concluding that, in any event, it would be appropriate to refuse the appellant the discretionary relief sought by him both on the ground of his own deceptive conduct and his delay in commencing the proceeding. 28 To similar effect, Graham J concluded, at [94]; Finally, if there had been a case of jurisdictional error, I would take the view that the Court should not disturb the exercise by the learned Federal Magistrate of his discretion to refuse constitutional writ relief, as he did. The unwarranted delay and bad faith of the appellant militate in favour of a refusal of any such relief (see Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82 at [56]-[57]). 29 In the present case, Mr Johnson submitted, the learned Federal Magistrate had enumerated at [37] of his reasons, quoted at [19] above, the factors which supported an exercise of his discretion favourably to Ms Lu but failed to take into account those matters which he had affirmatively found and which militated against such a favourable exercise of the discretion. Those matters included the finding noted at [16] above that "Ms Lu anticipated that ….. she would get what she wanted through payment of a bribe, facilitated by 'Chris'". As well, Counsel for the Minister pointed to his Honour's finding at [31] of his reasons that Ms Lu had admitted "that she did not care how she got her visa back, as long as she got it back" and at [35] that she "was complicit … because she chose to participate instead in what she must have known would have been an irregular process." Finally in this context, the Minister relied on the implied finding at [36] of his Honour's reasons reproduced at [19] above that Ms Lu had been complicit in an act of bribery proposed to obtain, or assist in obtaining, a favourable or quick outcome.

Submissions of the amicus curiae 30 The hearing of the Minister's appeal was adjourned from 24 August 2010 to 9 November 2010 to enable Mr Karp of Counsel, who had appeared for Ms Lu before the Federal Magistrates Court, to continue to represent her. In the meantime, on 29 October 2010, the solicitors on the record for Ms Lu filed a Notice of Withdrawal of Appearance on her behalf. The taking of that step was explained as follows in an affidavit affirmed on 29 October 2010 by the solicitor having the carriage of the matter on behalf of Ms Lu; 2. On 13 September 2010, the Respondent moved to China. She did not notify us of her postal address in China. 3. The last known address of the Respondent in Australia is … [Burwood NSW 2134]. 4. On 22 October 2010, I sent a letter to the Respondent's last known address notifying her of our intention to lodge a Notice of Withdrawal of Appearance form at the Federal Court of Australia for this matter. 31 In these circumstances, Mr Karp generously agreed to appear as amicus curiae and, with exemplary pertinacity, put everything to this Court which could responsibly have been advanced in support of the orders made in the Federal Magistrates Court. 32 Mr Karp drew attention to the finding of the learned Federal Magistrate that Ms Lu had been complicit in only one aspect of the "disabling" of the Tribunal's process. That was because she had chosen to participate in what she must have known would have been an irregular process. On the other hand, as his Honour found, Ms Lu had not known that the alternative irregular process was a fabrication. She was not complicit in the fraud on herself. 33 Mr Karp next pointed out that Ms Zhao's advice that Ms Lu should not attend the Tribunal hearing because that would make "Chris's" task more difficult could not have been given in the honest belief that such a course would be in Ms Lu's best interests or in furtherance of a genuine wish to facilitate a bribe. Rather, it was suggested, Ms Zhao had been concerned to preclude Ms Lu from attending a hearing of the Tribunal in order to prevent her own involvement and that of her supposed lawyer "Chris" from being revealed and to preserve for as long as possible the opportunity to extract more money from Ms Lu. 34 As a result of her fraudulent conduct, Ms Zhao ensured that Ms Lu would not attend a hearing of the Tribunal and thereby undermined the Tribunal's statutory processes so as to make applicable the reasoning of the High Court in SZFDE. Mr Karp frankly acknowledged that, as the Minister had submitted, it had been Ms Lu's choice not to respond to the Tribunal's invitation. However, she had been persuaded to make that choice by a person who had worked on her vulnerability and gained her confidence in the same way as had happened to the applicants in SZFDE. 35 Mr Karp accepted that his Honour's finding that Ms Lu expected that a bribe would be paid attracted the operation of the principle that a person cannot take advantage of his or her own wrong. However, he said, it was questionable whether, and if so to what extent, Ms Lu's conduct had been responsible for undermining the Tribunal's statutory processes. SZLHP had correctly been distinguished by the learned Federal Magistrate because, in that case, there had been a conspiracy to provide false information in a visa application. Here, there was no conspiracy because there was no agreement between Ms Lu and Ms Zhao to do anything. Ms Zhao's advice, in which Ms Lu had acquiesced, had not been provided in furtherance of a conspiracy but in furtherance of Ms Zhao's fraud on Ms Lu. 36 Mr Karp also contended that the further or alternative invocation by the Minister of discretionary grounds for refusing prerogative relief should be rejected. He candidly accepted that, to the extent that he had exercised it, his Honour's discretion had miscarried because it had not taken into account the potentially disqualifying behaviour of Ms Lu and weighed it against the matters, personal to Ms Lu, which tended in favour of granting her the relief which she sought. 37 As we understood it, Mr Karp urged that, in exercising the discretion for itself, this Full Court should allow the matters identified by his Honour to outweigh Ms Lu's conceded lack of clean hands which resulted from her having countenanced and facilitated the payment of a bribe. In the final paragraph of his written outline of submissions, Mr Karp contended; … it is apparent that Ms Lu suffered a series of traumatic personal hardships described in her affidavit… . It is reasonable to conclude that it was these events which made her susceptible to becoming the victim of Ms Zhao's fraud, when Ms Zhao offered her hope. [His Honour] found that she was not as naïve as she claimed [( at [30])], but she must have been gullible to be duped for so long and to have been milked of so much. In my submission her conduct in paying money to Ms Zhao in the belief that a bribe would be paid must be balanced against these considerations in deciding whether relief should be withheld as a matter of discretion.

Consideration 38 In our view, when the Tribunal determined, in her absence, Ms Lu's application and affirmed the decision of the delegate of the Minister, it had not been "disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review"; see SZFDE 232 CLR 189 at [51]. That was because the "disabling" found by the High Court in that case followed as an "immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants." In the present case, by contrast, there was no stultification of the Tribunal's obligation to afford natural justice to Ms Lu because the process which the Tribunal followed was the natural consequence of her conscious election not to respond to the Tribunal's invitation. That election, it is true, was conveyed to her migration agent, Mr Eyeson-Annan and it was his inaction which led the Tribunal to take the course which it did. However, unlike the migration agent in SZFDE, Mr Eyeson-Annan did not perpetrate any fraud on the Tribunal or on Ms Lu. His conduct was entirely consistent with the instructions which, at least by implication, she had given him. 39 The matters to which we have drawn attention compel us to distinguish the present case from SZFDE in the same way as another Full Court of this Court did in SZLHP. In that case, Branson J, after making the observations at [13] which are quoted at [24] above, continued at [14]-[15]: 14 In this case the appellant knowingly signed an application for a protection visa that was made in a false name and which falsely asserted that he was a citizen of Indonesia. His explanation for his conduct in this regard is that his migration agent said to him words to the effect: You are entitled to stay in Australia but you have to lodge a protection visa application. Since you have no Chinese identity papers I will use your Indonesian passport to lodge the protection visa application. He claimed that as he had no idea how to apply for a protection visa he fully authorised the migration agent to deal with his case. 15 It may be accepted that the appellant, who had recently arrived in Australia and spoke no English, did not know how to apply for a protection visa. However, nothing in the evidence provides any basis for an inference that the appellant was not aware that his conduct rendered him complicit in an attempt to deceive whatever Australian authority was responsible for dealing with applications for protection visas. Indeed, it is clear that he was well aware that he was applying for a protection visa in a false name and on a false basis. 40 In the respects which we have indicated, Ms Lu's choice not to respond to the Tribunal's invitation can be seen as motivated by her desire to pursue a different route to achieve her goal of obtaining a visa. Ms Lu acted at the behest of Ms Zhao to ignore the request of the Tribunal because she intended to "get around" it by paying a bribe. His Honour's finding that she did so because Ms Zhao's ruse was a fabrication cannot work to Ms Lu's advantage. Ms Lu was a conscious participant in what she understood was an attempt to subvert the outcome (affirmation by the Tribunal of the cancellation of her visa) that would occur because she chose not to respond to the Tribunal's invitation. The fact that Ms Lu was duped by Ms Zhao into thinking that Ms Zhao would facilitate payment of a bribe from Ms Lu's extravagant payments to her demonstrates that the Tribunal's processes were not affected by fraud. Rather, Ms Lu intended to engage in a fraud to "get around" the result in the Tribunal she knew her conduct would produce. This is similar to the choice made by the applicant in SZHVM 170 FCR 211 where Middleton J held, in the passage quoted at [22] above that the processes of the Tribunal had not been disturbed. 41 Ms Lu's case was that she was induced by Ms Zhao's fraudulent conduct not to participate further in the Tribunal's processes. However, that case was founded on her intention to commit an independent fraud herself by paying or causing a bribe to be paid to "get around" the lawful process of obtaining a visa. That species of fraud, if carried out, would, of course, have vitiated any visa that she obtained. Ms Lu proposed to engage in what Lord Hardwicke LC described in his celebrated judgment in Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125 at 156-157 [28 ER 82 at 100-101] as the fourth category of fraud. The Lord Chancellor explained the reason why Ms Lu's failed attempt to pervert the processes of the law, outside the processes of the Tribunal, should not give her any entitlement to relief: So of praemiums contracted to be given for preferring or recommending to a public office or employment : none of the parties are defrauded ; but the persons, having the legal appointment of these offices, are or may be deceived thereby : or if any person, agreeing to take the praemium, has authority to appoint the officer, it tends to public mischief by introducing an unworthy object for an unworthy consideration. These cases show what courts of equity mean, when they profess to go on reasons drawn from public utility. 42 The Court should not give relief to a person who is deceived into paying what he or she thinks will facilitate a bribe being paid in order to achieve an end that the person has chosen not to pursue in a lawful manner. Ms Lu may have been duped into believing that she was participating in a fraud. But her intention to participate, and her actual participation in, that dishonest conduct cannot be a vehicle for her now to seek relief in these proceedings. She fully understood the consequence of her decision not to respond to the invitation of the Tribunal was that its process would produce a result unfavourable to her: that is, the correct and lawful decision of the Tribunal would be a rejection of her application. The processes of the Tribunal were not interfered with by Ms Lu's pursuit, however misguided, of an independent process of her intended fraud to obtain a reinstated or new visa through payment of a bribe. 43 Here, the Tribunal was not disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review by the fraud of Ms Zhao or any agent or third party of Ms Lu, who was the applicant for that review: SZFDE 232 CLR 189 at [51]. Rather, Ms Lu was a knowing participant in her own dishonest and fraudulent scheme, with Ms Zhao, to "get around" the result of the Tribunal's processes. It is one thing for a person to be tricked by a fraudster, such as the migration agent in SZFDE 232 CLR 189, not to pursue his or her entitlement to participate in the Tribunal's processes so that those processes will be stultified. It is another thing for a person to be tricked by a fraudster, such as Ms Zhao, not to participate in those processes, when an integral feature of the ruse is the person's knowing participation in separate criminal conduct, such as bribery of officials, to achieve the same end as participating in the processes of the Tribunal could have produced. In the latter category of case, the effect of the fraud is not to stultify the Tribunal's decision-making processes. Rather, the intended bribe was integral to the fraud. Like acting on bad advice, a person's conscious decision to act on an invitation to participate in a criminal enterprise, provides a sound reason in policy that negates that person's entitlement to complain that the fraud on him or her vitiated the Tribunal's decision: SZFDE 232 CLR 189 at [53]. 44 If we be wrong in the conclusion just reached that the Tribunal in this case had not relevantly been disabled from the discharge of its statutory functions, we consider that Ms Lu should have been refused, on discretionary grounds, relief in the form of a writ of certiorari or mandamus. It is clear that the learned Federal Magistrate, in the paragraph quoted at [20] above which he devoted to the exercise of discretion, did not take into account a matter relevant to the exercise of his discretion, namely that Ms Lu, as a result of her complicity in the bribery and corruption proposed by Ms Zhao, had effectively caused the conduct of the Tribunal from which she sought prerogative relief in the Federal Magistrates Court. 45 In our view, it would be rarely, if ever, that the personal circumstances of an applicant, however meritorious when considered in isolation, could outweigh knowing involvement by that applicant in an endeavour corruptly to pervert the legal or administrative processes for the regulation of his or her status. For the reasons explained by Branson and Graham JJ in the passages from SZLHP quoted at [27] and [28] above, the present is not such a case.

Conclusion 46 For the reasons which we have explained, the Minister's appeal should be allowed and the orders of the Federal Magistrates Court should be set aside. In lieu of those orders it should be ordered that the application for review of the decision of the Tribunal of 11 April 2007 be dismissed. 47 The appeal was fully argued, with the assistance, as amicus curiae, of Mr Karp, who had appeared below for Ms Lu. The Minister was entitled to pursue the hearing of the appeal after Ms Lu had apparently departed from Australia in the circumstances referred to at [30] above. That is because the learned Federal Magistrate's reasons for granting relief to Ms Lu had applied SZFDE 232 CLR 189 in a manner that we have found to be erroneous. The Minister and the Tribunal would have been bound by the orders of the Federal Magistrates Court had Ms Lu returned to Australia. More significantly, the Minister had a legitimate concern that the decision below could stand as a precedent unless corrected on appeal. Although Ms Lu ceased to involve herself in the appeal when she left Australia, she did not consent to the appeal being allowed. In those circumstances, the appeal had to be heard and the Minister had to incur the costs of that occurring. The Minister should have the costs of the hearing below and of the appeal. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Rares and Katzmann.