REASONS FOR JUDGMENT
FRENCH J:
Introduction
1 On 27 February 2002 a Lebanese family comprising husband and wife and two children arrived lawfully in Australia. They applied for protection visas which were refused by a delegate of the Minister for Immigration and Multicultural Affairs on 29 August 2002. Subsequently they applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision.
2 The application for a protection visa for the family was based on the wife's claim that she had a well-founded fear of persecution because of political opinions which she had expressed in Lebanon and because she was a member of a particular social group comprising Islamic women who were perceived as having transgressed the customs of Islamic society.
3 The family had the misfortune to be introduced by a relative to a man who said he was a solicitor with a lot of experience in migration matters. They engaged him to represent them in their application for review by the Tribunal. Unknown to the family their agent had been struck off as a solicitor in December 2001and deregistered as a migration agent inMarch 2002. They paid him a total of $8,400 to act for them. He gave them advice which was not only bad but fraudulent. He told them that they should not accept an invitation to appear before the Tribunal at an oral hearing because their application would be refused. He said he was going to write a letter to the Minister and that he was worried that if they appeared before the Tribunal they would say something inconsistent with his letter. He told them not to worry that he was doing what was best for them.
4 Despite their doubts about his advice, the family took it. The Tribunal refused their application for review noting that the wife had not appeared and that there were relevant matters it would have wished to explore with her.
5 On a challenge to the Tribunal's decision in the Federal Magistrates Court, Scarlett FM found that the family had been dissuaded from appearing by the fraud of the agent. His Honour quashed the Tribunal's decision and remitted the matter for reconsideration by the Tribunal.
6 The Minister now appeals against that decision. In my opinion, having regard to the legislative framework, the Magistrate's orders could not be supported on the grounds of procedural unfairness. However, the process leading to the Tribunal's decision was compromised by the fraud of the family's agent. The apparent consent by SZFDE to have her application for review by the Tribunal decided without a hearing was not a genuine consent. It had been obtained by thatfraud. The Tribunal acted upon that apparent consent. Its decision was therefore affected by the fraud of the agent. On that basis I would dismiss the appeal. In this case however, Allsop and Graham JJ take a different view, and so the appeal will be allowed by majority.
Factual and procedural background leading to Tribunal decision
7 The respondents who are designated SZFDE, SZFDF, SZFDG and SZFDH for the purpose of these proceedings, are husband and wife and their two children. They are citizens of Lebanon. The family arrived in Australia on 27 February 2002. They applied for protection visas on 23 March 2002. These were refused by a delegate of the Minister for Immigration and Multicultural Affairs on 29 August 2002. On 30 September 2002 the family applied to the Tribunal for a review of the delegate's decision.
8 The original application for protection visas for the family members was based upon a claim by the wife, SZFDE, that she had a well-founded fear of persecution on account of political opinions which she had expressed in Lebanon and because she was a member of a particular social group comprising 'Islamic women who have transgressed the social mores of Islamic society'.
9 SZFDE's claims, as set out in an attachment to her application, may be summarised as follows. When she turned 17 she began to rebel against Islamic law and became sceptical of her parents' beliefs. She rejected their religious customs. She wondered why she should believe in a religion which distinguished between male and female and which considered that men had rights and women had none. She considered Islam to be a male dominated religion which could not come from a God of infinite justice. Her husband held the same views and the same attitude towards Islam and human rights.
10 One day SZFDE met a well known Christian Lebanese journalist who offered her the opportunity of employment with the Circles Newspaper as a production manager. While employed by the newspaper she wrote articles which reflected her opinion about Islamic rule. The newspaper was opposed to Islamic fundamentalists particularly those involved with the main fundamentalist party Altawheed. It published articles about the activities of Altawheed which included threatening restaurant owners to deter them from serving alcoholic drinks on their premises. Altawheed also purported to prohibit advertising showing women's legs and destroyed signs in Tripoli with photographs of women on them.
11 According to the first respondent the newspaper received threatening letters and telephone calls from Altawheed party members in Tripoli. Some of the letters were published. She claimed that the government could not do anything to protect them against such threats because it was unable to confront the Altawheed party.
12 SZFDE said that, following the events of 11 September 2001 in New York, she regretted any involvement with Islam which she rejected. She made her feelings known to her family and her friends and in public. As a result she received threatening letters. She was publicly denounced in a mosque in Tripoli as a disbeliever who should be punished. She claimed to have received a death threat from a young man who was a member of the Altawheed party, sent to her house for that purpose. She said that there was a reasonable possibility that she would suffer persecution if she were to return to Lebanon. Her fears were based on the treatment of persons similarly situated.
13 The application for the protection visa was forwarded on behalf of SZFDE by a migration agent. It identified the relevant Convention grounds thus:
'1. Membership of a political social group, ie Lebanese women who have transgressed the social mores of Islamic society.
2. Imputed political opinion - opposed to the Al-Tawheed Islamic Party; and
3. Religion - because of her failure to comply with the Islamic principles.'
The migration agent had an address in Marrickville.SZFDE had an address at Sefton in New South Wales which was disclosed in Part C of the application form. In answer to standard questions on the form SZFDE indicated that, if called for an interview, she would need an interpreter in the Arabic language. She also indicated that she spoke French.
14 SZFDE's application was acknowledged by a letter from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) dated 25 March 2002 and addressed to her at the address of her then migration agent. On 25 March 2002 she returned to DIMIA completed forms in relation to herself, her husband and her children (the second to fourth named respondents). The forms were applications for protection visas for the children as members of her family unit and additional character declarations covering her and her husband.
15 On 25 July 2002 DIMIA sent a letter to SZFDE (misdated 25 July 2001) referring to country information adverse to her claims and inviting her written responses. A written response was sent by her migration agent on 12 August 2002. The written responses related to the question whether the party known as Altawheed was a spent force in Lebanon, whether Islamic apostates were under threat of persecution in Lebanon and whether State protection was available against persecution.
16 On 29 August 2002 DIMIA wrote to SZFDE at Sefton in New South Wales advising her that she had been refused a protection visa and that as a result her husband and children had also been refused protection visas.
17 An application for a review of the delegate's decision was lodged with the Tribunal on 30 September 2002. It disclosed SZFDE's Sefton address. In section C of the form it identified her Authorised Recipient. This was in response to the form question:
'Where do you want us to send correspondence about your application?'
The name of her Authorised Recipient was Fahmi Hussain of Bridgeport International. The address given was Level 25 Chifley Tower at the corner of Hunter and Philip Streets in Sydney. This section was signed by Mr Hussain. Section C also contained a statement that copies of all documents would also be sent to the first named respondent at her mailing address. Under the heading in Section D 'Your reasons for making this application' the words were printed:
'Further submission in support of my appeal will follow.'
All of the lettering on the form seems to have been completed by the same person.
18 SZFDE was sent an acknowledgment of her application by letter from the Tribunal dated 1 October 2002. It was sent to her Sefton address and copied to Mr Hussain. The letter contained, inter alia, the following:
'What will the Tribunal do now?
We have asked the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to send us its file so that the Tribunal can review your application for a protection visa.
When we get your file, we will decide if we can consider your review application. If we can consider it, a Member of the Tribunal will look at the information you and DIMIA have given us and information about your country.
Will I be invited to a hearing at the Tribunal?
After looking at this information the Member may either:
. make a decision in your favour
. invite you to attend a hearing at the Tribunal
The Member may also:
. write to you for more information
. ask you to comment on information that the Tribunal has
What is a hearing and why is it important?
A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:
. what you tell the Member at the hearing
. information or documents you give the Tribunal
. information or documents you ask others to give the Tribunal
When and where will the hearing take place?
We will tell you the date and time of the hearing. Hearings can take place at the Tribunal's offices in Sydney or Melbourne. We also arrange hearings using video or telephone links.'
The letter also indicated that she was expected to notify the Tribunal immediately if she changed her home address, her mailing address or telephone number or if there were any changes in the name or address of her Authorised Recipient.
19 On 17 March 2003 the Tribunal sent SZFDE a letter advising that Mr Hussain was no longer registered as a migration agent with the Migration Agents Registration Authority. The Tribunal asked whether she had made any change or wished to make any change to her adviser and Authorised Recipient. She was invited to complete another form if she wished to nominate another Authorised Recipient and adviser. The letter then said:
'If you do not respond to this letter, all correspondence will continue to be sent to your address as above.'
The letter was addressed to her at Sefton. However it was sent back to the Tribunal marked 'Return to Sender' on 20 March 2003.
20 On 3 June 2003 the Tribunal sent a letter to SZFDE at the Sefton address inviting her to come to a hearing of the Tribunal to give oral evidence and to present argument in support of her claim. The hearing date nominated was Tuesday, 1 July 2003 at 11.30am. A location for the hearing was also given. A 'Response to Hearing Invitation' form was enclosed. She was asked to complete it and to tell the Tribunal whether she was coming to the hearing or not. The letter which was sent registered post was sent back to the Tribunal on 5 June 2003 marked 'Return to Sender'.
21 On 24 June 2003 SZFDE sent a note to the Tribunal of her new home address in Regents Park. A fax number and what appeared to be a mobile number were also given. She also gave an address for her legal representative whom she described as 'My Solicitor Fahmi Hussain' at Level 25, 2 Chifley Square, Sydney. The Tribunal acknowledged her change of address in a letter dated 27 June 2003. A copy was sent to Mr Hussain.
22 On the same day the Tribunal wrote to SZFDE saying, inter alia:
'On 3 June 2003 we sent you a letter inviting you to a hearing of the Tribunal. We have received no response from you. We have now found a more recent mailing address for you and are sending this letter to you at that address. Please tell us immediately you change any of your addresses.'
The Tribunal then advised, in the letter, that it had set a new date for the hearing. It said:
'The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.'
SZFDE was again invited to come to the hearing to give oral evidence and present arguments in support of her claims. The time and date was 5 August 2003 at 10.00 am. An address for the hearing was also given. A copy of the letter was sent to Mr Hussain.
23 On 29 July 2003 a 'Response to Hearing Invitation' was sent to the Tribunal. It was signed by SZFDE. It indicated that she did not want to come to the hearing. The name and address, which was given as the Regents Park address, was hand printed in a style similar to that used in the completion of the application to the Tribunal. However it was not in dispute that SZFDE's signature appeared at the bottom of the form.
24 On 13 August 2003 the Tribunal wrote to SZFDE at the Regents Park address advising that the decision relating to her case would be given on 2 September 2003. On that date she was advised by the Tribunal that it had decided that she was not entitled to a protection visa. A copy of the Tribunal's decision and reasons for decision dated 11 August 2003 were attached.
The Tribunal's reasons for decision
25 The Tribunal referred to the relevant provisions of the Migration Act 1958 (Cth) (the Act) and the definition of 'refugee' under the 1951 Convention Relating to the Status of Refugees (the Convention) and the 1967 Protocol Relating to the Status of Refugees. It enunciated unexceptionally the key elements of the Convention definition of 'refugee' and their qualification, for the purposes of Australian law, by ss 91R and 91S of the Act.
26 The Tribunal recited the fact of its invitation to the respondents sent on 3 June 2003 to give oral evidence and present arguments at a hearing on 5 August 2003. It recorded that on 30 July 2003 they advised the Tribunal that they did not wish to give oral evidence and would like it to proceed to make its decision 'on the papers'. The Tribunal therefore determined the application on the evidence available to it.
27 The Tribunal observed that only SZFDE had made specific claims under the Convention with her husband and children relying on their membership of her family to support their applications for protection visas.
28 The Tribunal set out the essential claims relied upon by SZFDE which have already been summarised. It noted that the submission made on her behalf included copies of identity cards as proof of her occupation, passports for herself and the members of her family, employment certificates of competence, education certificates and various newspaper articles.
29 The Tribunal referred to the letter sent to SZFDE on 25 July 2002 in which it set out information about Altawheed to the effect that it was a spent force, that Lebanese authorities had regained authority in Tripoli and that Lebanese citizens, since 1992, favoured unity over fundamentalism. It summarised SZFDE's reply given on 12 August 2002.
30 The Tribunal reviewed country information from the Department of Foreign Affairs and Trade (DFAT) Country Information Reports. A report dated 7 July 2000 stated that Syrian forces had broken up Altawheed and other extremist groups in a series of armed assaults from 1985. As a result most of Altawheed's membership had dispersed. A person called Shaaban had claimed to represent the Altawheed Movement until his death in 1998. Lebanese security agents continued to investigate and infiltrate extremist groups. In 1997 security authorities attacked a building in Tripoli which was said to house a radio and television station associated with Altawheed. In December 1999 a military court sentenced to death five persons, alleged to have Altawheed affiliations, for grenade attacks on churches in Tripoli. The report stated that authorities continued to seek to interdict extremist/violent groups. Another report dated 1 February 2000 also mentioned clashes between the Lebanese Army and members of Altawheed.
31 In relation to SZFDE's conversion from Islam, the Tribunal referred to another DFAT country information report dated 3 April 2002. That information recorded that Lebanese citizens are not prevented under Lebanese civil or criminal law from converting between religions including converting from Islam to Christianity. The report stated that conversion does not attract official prosecution or persecution and is protected through registration under civil law. There are no articles in the Lebanese Criminal Code which apply criminal sanctions against a convert. The reporter however would not discount the strong likelihood that a convert in Lebanon's highly confessionalised society would be subject to personal persecution from family members or other members of the sectarian community to which he/she formerly belonged. A convert would probably wish to seek refuge in suburbs occupied by the community of the newly adopted confessional group. The convert might also obtain assistance from local religious authorities or others.
32 In the 'Findings and Reasons' section of its reasons for decision the Tribunal summarised SZFDE's claims and said that they lacked detail and that it had wished to question her during a hearing in order to establish the relevant facts.
33 The Tribunal referred to SZFDE's claim that she had been outspoken about the activities of fundamentalist Islamists and that she had drawn close attention to herself from the Altawheed group. She claimed that she had been threatened by members of that group and that Lebanese authorities would not protect her from the threats and serious harm. The Tribunal said that the country information stated that the Lebanese authorities have 'taken action against the Tawheed group in the past' and that they continued to seek to interdict extremists/violent groups. It referred to country information about official action against fundamentalists.
34 The Tribunal said (at 11):
'The Tribunal wished to discuss this independent evidence with the applicant as it appears that the protection which will be available to the applicant if she returns to Lebanon now or in the foreseeable future.' (sic)
35 The Tribunal considered SZFDE's claims that she would be considered an apostate because of her rejection of Islam. It cited the country information which said it is not illegal to convert to another religion but that within the Muslim community and Sharia law apostasy is punishable by death. SZFDE had not provided much detail and so it was not possible to establish the relevant facts. The Tribunal then said (at 11):
'The Tribunal wished to question the applicant during a hearing in order to ascertain the relevant facts to ascertain the extent of the applicant's rejection of her faith and the extent of her criticism of her faith.'
36 The Tribunal also stated that it had wanted to question SZFDE further about her claim that members of her Mosque were aware of her rejection of Islam. It noted that nothing other than a warning had been given. It wanted to question her about this further in the light of its country information. The Tribunal said, towards the end of its reasons (at 11):
'The applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.'
37 In the event the Tribunal was not satisfied that SZFDE had a well-founded fear of persecution within the meaning of the Convention. It thereby affirmed the decision not to grant the protection visas.
The application for judicial review to the Federal Magistrates Court
38 On 29 November 2004 each of the respondents filed an application in the Federal Magistrates Court under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of the Tribunal's decision. They sought certiorari to quash the decision and orders in the nature of mandamus and prohibition. The single ground of their application was expressed thus:
'The decision was affected by fraud, being the fraud of one Fahmi Hussain (Hussain).
Particulars
(a) Hussain represented himself to the applicants to be a solicitor and migration agent when he was not, and
(b) Hussain advised the applicants that it would be best for them not to attend a hearing before the second respondent, when Hussain knew that such advice was false and that a failure to attend a hearing would be fatal to the applicants' application.'
39 On 19 May 2005 his Honour Scarlett FM adjourned the application to 23 June 2005 for mention and directed that the respondents' solicitors serve on Fahmi Hussain all affidavits filed on behalf of the respondents and the amended application together with a sealed copy of the order of 19 May. On 23 June 2005 the matter was adjourned for mention to 8 August 2005.
40 A hearing took place on 19 September 2005 and on 20 December 2005 the learned Federal Magistrate made an order in the nature of certiorari to quash the decision of the Tribunal. An order in the nature of mandamus was also made requiring the Tribunal to review, according to law, the delegate's decision of 29 August 2005 refusing protection visas sought by the respondents. The Minister filed an appeal against the decision of the Federal Magistrates Court on 31 January 2006 and an amended notice of appeal on 11 April 2006.
Evidence before the Federal Magistrates Court
41 The Federal Magistrates Court had before it the Tribunal's decision and the papers relevant to it. In addition, it received an affidavit sworn by SZFDE on 7 April 2005. In the affidavit she said that, prior to the date upon which her protection visa application was refused by the delegate, she had been telephoned by her cousin who said words to the following effect:
'I want to introduce you to a person who can send you to a solicitor who is very good in refugee matters.'
She met a Mr Fouad El-Ashwah with her husband at the home of one of her cousins on the same night. In the course of that meeting Mr El-Ashwah told her that he would introduce her to a 'very, very good solicitor'. That solicitor, he said, would get her permanent residence 'with great ease'. He named the solicitor as Fahmi Hussain. SZFDE said she would meet him.
42 On the day after her meeting with Mr El-Ashwah SZFDE met Mr Hussain. Thatmeeting took place on 27 July 2002. Mr Hussain was not an Arabic speaker. He spoke to her through Mr El-Ashwah. He told her he was a solicitor with a lot of experience in migration matters. He could take on her case and could do it in the proper way. He said he had a lot of similar cases and knew the appropriate documentation to lodge. He would need to study her case to decide which was the best way to proceed. He disparaged her current migration agent as 'not the best migration agent' and said he was approaching her case in 'the wrong way'.
43 Mr Hussain gave SZFDE a business card. It bore the heading 'Dalton Legal' above the words 'Fahmi M Hussain SOLICITOR'. A mobile phone number was handwritten on it. SZFDE paid him the sum of $1,500 in advance for work she expected him to do. He wrote on the back of the card an acknowledgment of receipt of $1,500 on account of his professional fees. The acknowledgement was dated 27 July 2002. SZFDE said that she engaged Mr Hussain to act for her in her application to the Tribunal. When the application was lodged she was living at her Sefton address. She moved from that address 'in late 2002'. At the time of that move she telephoned Mr Hussain and told him in English that she had moved to the new address in Regents Park, which she gave him.
44 In the middle of 2003 SZFDE received a telephone call from Mr Hussain who told her that he had received a letter from the Tribunal. He said that they needed to talk about it. She and her husband then met Mr Hussain at their home which was then at another address in Regents Park. Mr El-Ashwah acted as an interpreter. She recalled seeing the letter of 3 June 2003 from the Tribunal at the meeting.
45 Mr Hussain said it was best that she not go to the hearing at the Tribunal. She responded:
'"Why, we need to tell my story. Are you sure its best not to go?" or words to that effect.'
He said 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 RRT you will say something in contradiction to what I will write. Don't worry. I'm doing what is best for you.'
SZFDE said her husband asked Mr Hussain on several occasions, 'Are you sure its best not to go to the RRT?'. Mr Hussain answered each time. '"Trust me. It's best not to go", or words to that effect'. At the end of the meeting, which lasted about 1 ˝ hours, she agreed not to attend the Tribunal hearing. She said in her affidavit that Mr Hussain was her solicitor and that she trusted him to do the best for her.
46 SZFDE said she did not attend the Tribunal hearing. She paid Mr Hussain a total of $8,400 to act for her. In September 2003 he told her he was in financial difficulty and asked her to lend him $5,000 which she did. A few weeks later he asked her to lend him some more, but she refused and decided to seek advice elsewhere. She saw another solicitor in Parramatta who told her that her case was extremely difficult, that he could do nothing for her.
47 It was only following the Tribunal rejection that she was told by Mr Dagnall of the Legal Aid Commission that she needed a migration agent to represent her at the Tribunal, that Mr Hussain's registration as a migration agent had been cancelled in March 2002 and his solicitor's practising certificate cancelled in December 2001.
48 On 15 September 2003 Mr Hussain wrote a letter to the Minister in the name of SZFDE. A copy of the text of the letter was exhibited to her affidavit. It appeared, however, to be drafted in terms of a letter from her husband to the Minister. The request in the letter which was for a s 417 visa was rejected. A further request under that section was made by a friend of her husband on 8 July 2004 and yet another by Mr Dagnall on 15 September 2004. Mr Dagnall's request was refused on 15 November 2004 and the request for the Minister to exercise her power to permit SZFDE to lodge a new application for a protection visa was rejected on 1 October 2004.
The reasons for decision of the Federal Magistrates Court
49 Scarlett FM set out the procedural history already summarised. Herestated briefly the Tribunal's conclusions and in particular its asserted wish to question SZFDE at the hearing in order to establish relevant facts.
50 His Honourcharacterised the application before him as an unusual one relying, as it did, on an allegation of fraud. He directed, on 19 May 2005, that the respondents' solicitor serve on Fahmi Hussain copies of all affidavits which had been filed on their behalf and a copy of their amended application. Those documents were to be served by 17 June 2005 and the proceedings were otherwise adjourned to 23 June 2005. Mr Hussain appeared on 23 June 2005. He was directed to file and serve a notice of address for service and the proceedings were further adjourned.
51 On 8 August 2005 Mr Knaggs, a solicitor, appeared for Mr Hussain. The matter was then listed for final hearing on 19 September 2005. Neither Mr Hussain nor his solicitor appeared at the hearing of the application. Elizabeth Biok, a solicitor, swore in an affidavit dated 16 September 2005, which was before the Federal Magistrates Court, that she had spoken to Mr Knaggs that day about the service of two subpoenas, one to the Law Society of New South Wales and one to the Migration Agents Registration Authority. However Mr Knaggs told Ms Biok that he was no longer acting for Mr Hussain and had had no further instructions from him.
52 Scarlett FM then referred to the affidavit evidence provided by SZFDE and her husband. He described the husband's evidence as corroborating that of his wife and said (at [29]):
'The applicants were cross-examined by counsel for the Respondent Minister, but were unshaken in their accounts. Both applicants impressed me favourably in their evidence. I observed them in the witness box and they appeared to me to be witnesses of truth. I accept their evidence.'
53 SZFDE also tendered a copy of a letter dated 5 December 2001 from the Law Society of New South Wales showing that Mr Hussain's practising certificate had been cancelled on that day. She tendered a letter from the Migration Agents Registration Authority dated 18 March 2002 showing that his registration as a migration agent had also cancelled.
54 SZFDE and her family submitted to his Honour that Mr Hussain had induced her not to attend the hearing of the Tribunal because he did not wish his own actions to be exposed. They argued that he knew, or ought to have known, that her non-appearance at the hearing of the Tribunal would be fatal to her case. They submitted that in this respect Mr Hussain had acted fraudulently in advising them. He had represented that he was a solicitor after his practising certificate had been cancelled and after his registration as a migration agent had been cancelled.
55 The Minister conceded in the Court below that Mr Hussain's advice to the respondents was seriously deficient and probably either grossly negligent or given in bad faith. However it was the Minister's submission that the circumstances of the case did not disclose any failure to provide procedural fairness to the respondents. The operation of the 'natural justice hearing rule' was limited by s 422 of the Act to the specific requirements set out in Div 4 of Pt 7 of the Act. The obligation to provide an oral hearing was confined to the duty in s 425 which is to invite an applicant to attend a hearing which would include providing a real opportunity to be heard. SZFDE was invited to attend but decided not to attend, thus there was no breach of s 425.
56 The Minister submitted that the case could be distinguished from Taylor v Taylor (1979) 143 CLR 1 in which a party had failed to appear because of a misunderstanding by that party's legal representative. In the Tribunal proceedings, SZFDE and her family chose, admittedly on bad advice, not to attend the hearing.
57 The Minister contended that those cases in which superior courts had issued certiorari to quash orders of lower courts obtained by fraud did not, in Australia, appear to have extended beyond the criminal law. Those decisions were an aspect of the jurisdiction assumed by superior courts to correct 'irregularities in the proceedings of inferior tribunals'. They were not cases where the grant of the remedy depended on the lower court or tribunal exceeding its jurisdiction or failing to exercise its jurisdiction. The jurisdiction of the Federal Magistrates Court was wholly statutory and the exclusion of certiorari from the list of remedies defining that original jurisdiction and that of the High Court under s 75(v) of the Constitution reflected the nature of the jurisdiction as one concerned with excess of power rather than procedural irregularity or error of law per se. It was submitted therefore that no remedy lay in the Federal Magistrates Court for irregularity in the procedures of the Tribunal falling short of jurisdictional error.
58 The Minister cited R v Secretary of State for the Home Department; Ex parte Al-Mehdawi [1990] 1 AC 876, in which a party had been denied an opportunity to be heard because of the failure of his advisors to do what they were required to do. Reliance was placed on the statement of Lord Bridge of Harwich that a party who had lost the opportunity to have his case heard because of the default of his own advisors could not complain that he had been the victim of a procedural impropriety or that natural justice had been denied.
59 Scarlett FM did not agree that he should follow the decision in Al-Mehdawi. He did not think it consistent with Taylor. He quoted a passage from the judgment of Gibbs J in which it was said (at 9):
'… it is no answer to a party who asks the court to set aside an order made against him in his absence at a hearing of which he had no notice to tell him that he has a remedy against his solicitor. In such a case, assuming that there is a real question to be tried, justice requires that the order, having been made in breach of a fundamental principle of natural justice, should be set aside, and that the matter should be reconsidered on its merits.'
60 His Honouraccepted that the respondents were aware of the invitation to the hearing but found that they '... were dissuaded from attending by the fraudulent behaviour...'. He found that Mr Hussain's actions had deprived the invitation to the hearing of its quality of being a meaningful invitation under s 425. His Honourattached some significance to the Tribunal's knowledge that Mr Hussain was no longer registered as a migration agent and that SZFDE had not received its letter of 17 March 2003. That letter was returned unclaimed to the Tribunal. His Honoursaid (at [52]):
'It was not open to the Tribunal to assume that no response meant that the applicants were aware of the status of Mr Hussain but did not wish to change their adviser or authorised recipient. On the contrary, they had proof that the applicants were not aware of that fact.'
He held that the Tribunal had erred in sending out the letter advising the respondents to attend the hearing. It had sent the letter to two addresses, firstly their old address from which its previous letter had been returned unclaimed, and secondly the address of Mr Hussain.
61 On 24 June 2003 the Tribunal had received a change of address notification giving a change of home address and identifying Mr Hussain as the respondents' solicitor. This document was typed but unsigned. His Honour found that this communication placed the Tribunal 'on notice' that Mr Hussain was apparently in practice as a solicitor although his practising certificate had been cancelled in 2001 and his registration as a migration agent had been cancelled in 2002. The fact that the Tribunal continued to forward correspondence to him knowing that his registration had been cancelled was, in the mind of the learned Magistrate (at [56]):
'... sufficient to taint the proceedings before the Tribunal to such an extent as to constitute jurisdictional error.'
The learned Magistrate held that if the Tribunal becomes aware that a migration agent has had his or her registration cancelled, it should not continue to communicate with an applicant through that former agent. In the event nothing turns on that finding for the purposes of the outcome of this appeal. For the reasons that follow it is sufficient that he found SZFDE and her family were dissuaded from attending the hearing by the fraudulent behaviour of the agent.
62 Oddly, the last paragraph of the learned Magistrate's reasons read as follows (at [58]):
'The application will be dismissed'.
In fact the formal orders made reflected the reasons, quashed the decision of the Tribunal and remitted the matter to the Tribunal to be dealt with according to law.
The Orders of the Federal Magistrates Court
63 The orders made by the Federal Magistrates Court on 20 December 2005 were as follows:
'1. That the Refugee Review Tribunal is joined as Second Respondent to the application.
2. That Applicant SZFDF is appointed litigation guardian of Applicants SZFDG and SZFDH.
3. That there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal ("the Tribunal") made on 11 August 2003.
4. That there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister on 29 August 2002 to refuse protection visas sought by the Applicants.
5. That the First Respondent is to pay the Applicants' costs.'
The Grounds of Appeal
64 The grounds of appeal as set out in a further amended notice of appeal filed by the Minister on 26 April 2006 were in the following terms:
1 The Federal Magistrate erred by not concluding that there was no jurisdictional error vitiating the Refugee Review Tribunal's decision in that the circumstances of the applicants' cases did not disclose any failure to provide procedural fairness to the Applicant.
2 The Federal Magistrate erred by not concluding that the operation of the "natural justice hearing rule" was limited, by s 422B of the Migration Act 1958, to the specific requirements set out in provisions of Division 4 of Part 7.
2.1 The obligation to provide an oral hearing was therefore confined to the duty provided for in s 425, to invite the Applicant to attend a hearing.
2.2 In the alternative, even if the general law principles of natural justice applied, the Federal Magistrate erred by not concluding that the Applicant chose (albeit on bad advice) not to take up the opportunity to attend a hearing.
3 The Federal Magistrate erred by not concluding that the jurisdiction of this Court is one concerned with excess of power, rather than procedural irregularity. In particular:
3.1 Certiorari to quash orders of lower courts (where those orders have been obtained by fraud and an appeal does not lie) are an aspect of the jurisdiction assumed by superior courts to correct "irregularities in the proceedings of inferior tribunals".
3.2 The jurisdiction of the Federal Magistrates Court, being wholly statutory, extends only to granting certiorari as an ancillary remedy where a case is established for the issue of one of the "constitutional writs", but not to cases in which certiorari is the only remedy sought.
3.3 No remedy lies in this Court for irregularity in the procedures of the Tribunal which fall short of jurisdictional error.
4 The Tribunal was authorised to proceed as it did by sections 425(2), 425(3), 426A, 441A and 441G:
4.1 Contrary to his Honours (sic) findings, the Tribunal was entitled to send the hearing invitations addressed as they were and there was no jurisdictional error by the Tribunal in so doing;
4.2 Contrary to his Honours (sic) findings, the actions of Mr Hussein (sic) did not deprive the hearing invitation of its quality being a meaningful invitation under section 425;
4.3 Contrary to his Honours (sic) findings, the Tribunal entitlement to proceed as it did was not affected by the Tribunal's knowledge that Mr Hussein (sic) was no longer registered as a migration agent, or its knowledge that the respondent's (sic) had not received the letter dated 20 March 2003.'
Statutory framework - The Tribunal's review function
65 Part 7 of the Act is entitled 'Review of Protection Visa Decisions'. Section 411 sets out the classes of decisions which are reviewable by the Tribunal. These include '... a decision to refuse to grant a protection visa' (s 411(1)(c)). Section 412 provides for applications to be made for review of an 'RRT-reviewable decision'. Such applications are to be made in the approved form, given to the Tribunal within the prescribed period, not later than 28 days after the notification of the decision, and accompanied by the prescribed fee (s 412(1)).
66 Section 414 establishes what might be regarded as the core obligation of the Tribunal thus:
'(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).'
67 The powers of the Tribunal on a review are set out in s 415. It may exercise all the powers and discretions conferred by the Act on the person who made the decision under review (s 415(1)). It may affirm or vary the decision or, in certain cases, remit it for reconsideration with directions or recommendations permitted by the Regulations or it may set the decision aside and substitute a new one.
Statutory framework - natural justice and the operation of the Tribunal
68 Division 3 of Part 7 is entitled 'Exercise of Refugee Review Tribunal's Powers'. Section 420 prescribes the way in which the Tribunal is to operate:
'(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.'
69 Division 4 of Part 7 deals with the conduct of the review. Section 422B provides:
'Exhaustive statement of natural justice hearing rule.
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.'
Statutory framework - the invitation to a hearing
70 Section 424 authorises the Tribunal to obtain any information which it considers relevant and invite a person to give additional information. The Tribunal is required, under s 424A, to provide to the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal must also ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review and invite the applicant to comment on it. Importantly for present purposes are ss 425 and 426A. Section 425 provides:
'(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.'
Section 426A provides:
'(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
The Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.'
Statutory framework - the privative clause
71 Section 474 of the Act provides, inter alia:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).'
Subsections (3) to (5) are not material for present purposes.
The finding of fraud in the Court below
72 It is necessary in this case to focus upon the precise basis upon which the learned Magistrate set aside the Tribunal's decision and the basis upon which his judgment is challenged.
73 It was not in dispute before the learned Magistrate or in this Court that SZFDE received an invitation from the Tribunal to attend an oral hearing in relation to her application for review. Nor was it in dispute that she signed a form provided by the Tribunal which indicated that she did not wish to come to the hearing. It is also clear that by not attending before the Tribunal she lost the opportunity to explore her claims further with the Tribunal and that, from the Tribunal's perspective, relevant questions remained unanswered.
74 The learned Magistrate found that SZFDE and her family were dissuaded from attending the hearing because of 'the fraudulent behaviour of Mr Hussain'. The learned Magistrate did not, at that point in his reasoning, expressly identify the fraudulent behaviour which had that effect. However, he had earlier generally accepted SZFDE's evidence which included her evidence that Mr Hussain told her that it was best that she not attend the Tribunal hearing and that if she went they would refuse her. The finding that the agent's fraudulent behaviour dissuaded SZFDE from attending the hearing could only have rested upon his view that the advice the agent gave was dishonest in the sense that he did not honestly hold the belief that the Tribunal would necessarily so act. It is unfortunate that in this important respect the learned Magistrate did not spell out his findings of fact clearly. The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings.
75 The only ground of review before the learned Magistrate was that the decision of the Tribunal was 'affected by fraud'. No error of any kind on the part of the Tribunal was alleged. The question was whether the fraud which the learned Magistrate found to have occurred vitiated the decision of the Tribunal. It was not framed in terms of a failure of procedural fairness although it appears from His Honour's reasons for judgment that such a failure was propounded as a consequence of the agent's fraud. It is helpful therefore to consider and to identify the effects on administrative decision making of procedural fairness for which the decision-maker is not responsible and of fraud inducing or affecting the decision. The case law, particularly the English authorities, discloses an overlap between the two areas. Importantly it supports a general proposition that a decision may be affected by jurisdictional error, in the sense that it is beyond power, even though the decision-maker was not at fault. That proposition applies to the particular case of third party fraud affecting or inducing an administrative decision.
Procedural unfairness not attributable to a decision-maker
76 Procedural fairness lies at the heart of administrative justice. It is a long standing requirement of the common law and reflects, in this country as in other common law jurisdictions, ordinary concepts of justice. It is often regarded as an implication, albeit judge-made, in the grant of statutory power to make decisions affecting the interests of individuals, unless excluded expressly or by contrary implication. Where the requirement applies its breach can amount to jurisdictional error. A decision affected by such error is liable to be quashed by a writ of certiorari.
77 A decision of a Court made in the absence of a party who has not been given a reasonable opportunity by the Court to appear and be heard, may be set aside in its inherent jurisdiction:
'In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial.'
Cameron v Cole (1944) 68 CLR 571 at 589 (Rich J).
In considering whether the Bankruptcy Act 1944 (Cth) conferredpower on the Federal Court of Bankruptcyto set aside such a decision, Rich J referred to the general presumption that a statute is not to be taken to have undermined fundamental principles of law or of equity except by the use of clear words (at 589):
'A fortiori in the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice.'
78 Cases involving a judicial discretion or a statutory power, judicial or administrative, to rehear a matter decided in the absence of a party, whether through the fault of the decision-maker or otherwise, occupy potentially a wider field than those in which there has been jurisdictional error attracting certiorari. Cases in the first category are not necessarily a guide, except in terms of broad principle, to the availability of the writ.
79 Tayloris an example of a judicial discretion to rehear a case where a decision affecting rights was made in the absence of a party. An order was made in the absence of a husband involved in matrimonial proceedings. His non-appearance was not his fault but the result of an error by his solicitors. Service of the relevant petition having been properly effected the first decision was not a nullity. Nevertheless the order was able to be set aside by an order made in the inherent jurisdiction of the Family Court. Both Gibbs and Mason JJ referred to Grimshaw v Dunbar [1953] 1 QB 408 in which Jenkinson LJ restated the prima facie right of a party to an action to have it heard in his presence and said (at 416):
'… if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs…'.
80 In a passage from Taylor quoted by the Federal Magistrates Court, Gibbs J said it was no answer to tell a person in the position of the husband that he had a remedy against his solicitor:
'In such a case, assuming that there is a real question to be tried, justice requires that the order, having been made in breach of a fundamental principle of natural justice, should be set aside and that the matter should be reconsidered on its merit.'
With respect to Scartlett FM, he appears to have erred in his reliance upon Taylor. That case was ultimately about the power of the Family Court to set aside an order made in the absence of a party. Grimshaw was in a similar category. Neither went to the question whether a party's absence, when caused by the conduct (whether fraudulent or negligent) of his or her adviser, invalidated the decision in question and gave rise to jurisdictional error. The decision complained of in Taylorwas not regarded as a nullity (at 8 per Gibbs J). The point was made by Burchett J in Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 a case which, like Cameron v Cole, involved a sequestration order made in the absence of the debtor who had not received notice of the hearing (at 133):
'In my view any doubts which may have continued to obscure the position after the decision in Cameron v Cole were cleared up by the judgments in Taylor v Taylor. I respectfully accept the judgment of Rich J in the earlier decision as delineating the court's powers and the orders which may be made in an appropriate case. I have power, under an inherent jurisdiction, to set aside the sequestration order and at the same time to order a rehearing of the petition. But whether such orders should be made depends upon the exercise of a discretion.'
The distinct question relevant to the present case is whether, and the circumstances in which, procedural unfairness not attributable to the decision-maker will ground certiorari.
81 That question was answered in the affirmative in England in R v Leyland Justices, Ex parte Hawthorn [1979] QB 283. The prosecutor in proceedings for driving without due care and attention did not disclose certain witness statements to the defendant. Certiorari was issued to quash the resulting conviction for denial of natural justice even though there was no fault on the part of the Magistrates Court that heard the case. Lord Widgery CJ (May and Tucker Evans JJ agreeing) said (at 286):
'… if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category.'
See also R v Blundeston Prison Board of Visitors; Ex parte Fox-Taylor [1982] 1 All ER 646 in which prison authorities did not disclose to a prisoner the existence of witnesses who might support his case. The cases concerned unfairness caused by misconduct which was equated to, but was not of the same quality, as fraud.
82 Al-Mehdawi, as a procedural fairness decision,figured prominently in argument in the present case. The principal question before the House of Lords was whether failure of a party to appear before an administrative tribunal because of the neglect of his or her advisers gave rise to a denial of natural justice. The case did not turn on the availability of certiorari for which Ex parte Hawthorn was authority. An Iraqi student, appealing to an adjudicator against a deportation order, did not receive notice of the hearing of his appeal. His solicitor sent the notice to the wrong address. His appeal was dismissed but the adjudication was quashed on judicial review. The Court of Appeal dismissed an appeal by the Secretary of State against the trial judge's decision. The House of Lords reversed the decision of the Court of Appeal.
83 Taylor LJ (Nicholls and O'Connor JJ agreeing) held in the Court of Appeal that there was '… owing entirely to the solicitors' negligence, a breach of a basic rule of natural justice - audi alteram partem'. That was the proposition upon which the appeal turned and there was little substantive elaboration of it. Lord Bridge, who delivered the judgment of the House of Lords, identified as the question for decision (at 893):
'Does certiorari lie to quash a decision given without hearing the applicant for certiorari when the tribunal giving the decision has acted correctly in the procedure adopted but the applicant was deprived of the opportunity to put his case by the negligence of his own legal advisers or otherwise without personal fault on the part of the applicant?'
A number of examples were cited of circumstances in which judgments could be given against parties based on circumstances arising from the negligence of their solicitors. The examples included judgments by default, actions dismissed for want of prosecution and claims not made within a fixed time limit which the relevant tribunal has no power to extend. He said (at 898):
'These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.'
84 Lord Bridge referred to R v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24, in which the Court of Appeal rejected an attempt to extend the ambit of certiorari to fresh evidence cases. The case concerned the existence of a public right of way over land. Lord Denning who, contrary to the majority in the Court of Appeal, thought certiorari available in fresh evidence cases, nevertheless joined in the result because the new evidence could have been discovered with due diligence. Lord Bridge drew from that decision and from Lord Denning's dissent the proposition that certiorari was not available to quash even a public law decision declaring a matter of status on the basis of fresh evidence not adduced at trial because of a solicitor's want of diligence. He said (at 900):
'This seems to me wholly inconsistent with the application of a new principle to public law decisions which would be at variance with the principle applicable to private law decisions and which would allow a party affected by a decision to have it quashed on the ground of unfairness when the unfairness resulted solely from the failure of his own advisers to take the appropriate steps.'