RELEVANT AUTHORITIES
62 In Ozone Theatres, certain employers applied to the Commonwealth Court of Conciliation and Arbitration ("the arbitration court") for relief altering the basic wage in a particular industry in certain states. The arbitration court held that it lacked jurisdiction. The High Court held that the employers were entitled to a writ of mandamus commanding the arbitration court and its judges to entertain the application.
63 The High Court observed that as the arbitration court's jurisdiction was created for the public benefit or for the purpose of conferring rights or benefits, it was (upon an application properly made) under a duty to exercise its jurisdiction and was "not at liberty to refuse to deal with the matter…Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus" (at 398).
64 The High Court nevertheless recognised that mandamus was neither a writ of right nor issued as a matter of course. Rather, the High Court stated (at 400):
There are well recognized grounds upon which the court may, in its discretion, withhold the remedy.
65 The High Court discussed the discretion as follows (at 400):
For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.
66 More recently, in Re Refugee Review Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82 ("Aala"), Gaudron and Gummow JJ discussed in detail the history of the writ of prohibition and whether it (and, by parity of reasoning, the other constitutional writs) were (although not writs of course) to be granted a matter of right and not denied on discretionary grounds. Their Honours discussed the historical judicial debate over whether and in what circumstances a discretion arose. They concluded that there was a discretion to refuse prohibition when exercising the jurisdiction under s 75(v) of the Constitution. In particular, where the prosecutor was not a stranger and prohibition was sought against Commonwealth officers who were members of a Federal Court (at [49]-[50]), there was a discretion to refuse relief, at least when sought against a superior court if the prosecutor had a right of appeal and there was no constitutional question involved (at 50).
67 Gaudron and Gummow JJ stated at [51]-[52] that Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194 described the correct approach to the exercise of the original jurisdiction under s 75(v) of the Constitution when prohibition was sought against an officer of the Commonwealth as follows:
If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.
68 Gaudron and Gummow JJ stated at [53]-[56]:
The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions". The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. …
The text and structure of Ch III do not suggest that prohibition should occupy any special position among the constitutional remedies provided in s 75(v). The other two remedies specified there are attended by discretion. This is "well settled" with respect to mandamus. It is a remedy which does not go either as of right or as of course. The same certainly is true of the injunction where, as here, it is a public law remedy. …
No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution. The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission. Her Honour said:
"Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. (Footnote omitted.)"
Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd.
69 In SZIZO, the Full Court allowed the appeal from the decision of a Federal Magistrate, who dismissed an application for judicial review of the Refugee Review Tribunal's ("the Tribunal") affirmation of a delegate's decision not to grant the appellant a protection visa. In SZIZO, one appellant had nominated his eldest child as an authorised recipient of all correspondence with the Tribunal, which nevertheless continued to correspond directly with the appellant himself and forwarded a s 425A notice to him. Although the appellant attended the Tribunal hearing and gave evidence, there was no evidence that he ever read the s 425A notice.
70 Lander J (with whom Moore and Marshall JJ agreed) found that the Tribunal's failure to send the s 425A notice to the authorised recipient was a breach of its obligation under s 441G of the Migration Act 1958 (Cth) ("the Act"). It amounted to jurisdictional error and invalidated the Tribunal's decision.
71 Lander J referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 ("SAAP") where McHugh J stated at [83]-[84] that:
If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s 75(v) of the Constitution. There is no reason to rewrite the limitation ordinarily implied on the statutory power to deny jurisdictional error for "trivial" breaches of the requirements of procedural fairness.
If the decision of the Tribunal is invalid for want of procedural fairness, there is no reason to withhold discretionary relief. There is nothing to suggest that the conduct of the appellants warrants the refusal to exercise the discretion. There is no suggestion of delay, waiver, acquiescence or unclean hands.
72 Lander J stated at [97]:
It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted.
73 In NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 ("NAWZ"), on which the Federal Magistrate in this case relied, an applicant made a false application for a protection visa using an Afghan identity and pseudonym, which he thought would improve his chances of success. When the false application was refused, the applicant lodged a second application in his own name, as a citizen of Pakistan. At interview, the applicant denied having lodged the first false application and maintained the false denial before the delegate, the Tribunal and the primary judge.
74 The Full Court stated at [10] to [14]:
The appellant, in our view, has so conducted himself both in relation to the Minister and to the Court as to disentitle himself to the award of discretionary relief even if it be assumed that his fresh ground of appeal has technical merit. The respondent Minister has made submissions to this effect. Despite the appellant's contention to the contrary we do not consider that it was necessary for a Notice of Contention to be filed for this purpose.
It is well accepted that 'relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary': Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 441 at [90].
…
The appellant has twice attempted to practise deception upon the Minister, first by making a bogus claim for refugee status and then, by denying that he was personally implicated in the making of that claim. His same lack of candour infected his approach to proceedings in this Court - until he was disbelieved. He has demonstrated no particular solicitude to advance whatever claim he may have in his own right to seek a protection visa. His second claim was made almost two years after he arrived in Australia and seven months after the false application had been refused.
The appellant has sought consistently to avoid the consequences of his own actions. This late-raised ground of appeal is another instance of this. We would deny him the relief sought even if he could make out the ground relied upon. It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant.
75 In SZLHP, the Full Court (Branson, Lindgren and Graham JJ) dismissed the appeal of an applicant, a citizen of China for a protection visa who, on his migration agent's advice, misrepresented his identity, citizenship and personal history both before the delegate and the Tribunal.
76 The migration agent advised the applicant not to attend the Tribunal hearing, as attendance would disclose that he was not (contrary to his assertions) a citizen of Indonesia. The applicant co-operated with the agent's fraudulent proposals and obtained a medical certificate to explain his failure to attend the hearing.
77 The Federal Magistrate held that the applicant was a knowing and independent co-perpetrator of the fraud on the Tribunal and could not rely on it to invalidate the Tribunal's decision. His Honour stated that even if jurisdictional error in the Tribunal were established, he would have refused relief on the grounds that the applicant deceived both the Minister and the Tribunal and had delayed in commencing the proceeding (at [21]).
78 On appeal, Branson J stated at [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.
79 Branson J referred to SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 ("SZFDE"). Her Honour stated at [18] that it could be distinguished "in at least one critical respect. The appellants in SZFDE were not complicit in any attempt to deceive the Tribunal. … By contrast, the appellant knowingly embarked on a course of conduct calculated to deceive the relevant Australian authorities as to his true identity, citizenship and personal history. Moreover, he took no steps, as it seems, for nearly a decade to disclose the true position to the Department of Immigration or any other Australian authority".
80 Branson J further stated at [20]:
In the circumstances of this case, appreciation by the Tribunal of the true reason why the appellant was unwilling to attend the Tribunal hearing could hardly be suggested to raise an issue of the miscarriage of the Tribunal's power. The appellant was not fraudulently deceived by the migration agent as to the true reason why the migration agent did not want him to attend the Tribunal hearing. The reason why the migration agent advised the appellant not to attend the Tribunal hearing was that his attendance would make plain the falsity of the grounds on which he sought review of the decision of the Minister's delegate. The appellant understood this and cooperated with the migration agent by obtaining the medical certificate in attempted explanation of his failure to attend. There was no relevant fraud "on" the Tribunal in the sense discussed by the High Court in SZFDE 232 CLR 189
81 Lindgren J stated at [27] and [28]:
I agree with Branson J at [18] and Graham J at [93], that the fact that the appellants in SZFDE 232 CLR 189 were not complicit in any attempt to deceive the Tribunal distinguishes that case from the present one. In the present case, the Federal Magistrate made the same distinction: SZLHP v Minister for Immigration and Citizenship [2008] FMCA 359[RTF] at [99].
The appellant accepts that if he had initiated or was a party to the fraud, he would have no cause for complaint: see, for example, NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 160 at [27], [30], [31]; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 at [13], [14]. 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.
82 Graham J stated at [83]:
In addition, counsel for the appellant submitted that the learned Federal Magistrate erred in finding, in the alternative, that even if jurisdictional error had been shown, the learned Federal Magistrate's exercise of his discretion to withhold constitutional writ relief had miscarried.
83 His Honour rejected that submission, noting at [86] that "[t]he learned Federal Magistrate was correct in highlighting that SZFDE had been a victim of fraud whereas SZLHP was privy to or a party to such fraud as there may have been" and concluding, inter alia at [94], "[f]inally, 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])".
84 In MIAC v Lu, a fraudulent third party advised the holder of a higher education visa:
1. to decline an invitation to attend a tribunal hearing, and not to provide any further information, in relation to her application for review of a delegate's decision not to revoke the automatic cancellation of her visa; and
2. instead, to pay the third party a considerable sum of money to be used to "get round" the Tribunal.
85 The applicant complied with the above advice and thus lost the opportunity to appear and to provide further information. The Tribunal affirmed the delegate's decision not to revoke the automatic cancellation of the visa.
86 A Federal Magistrate concluded that the third party's fraud had induced the applicant's decision not to respond to the Tribunal's invitation and the exercise of the Tribunal's jurisdiction was therefore disabled.
87 On appeal, the Full Court (Ryan, Rares and Katzmann JJ) allowed an appeal from the Federal Magistrate's decision.
88 The Full Court stated at [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 where Middleton J held, in the passage quoted at [22] above that the processes of the Tribunal had not been disturbed.
89 The Full Court also stated at [44]-[45]:
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.
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.
90 In SZQBN v Minister for Immigration and Citizenship [2011] FMCA 408, a Chinese citizen's visitor's visa was cancelled after its holder was interviewed at an airport after the authorities received information from China that he had kidnapped his daughter there and intended to apply for a protection visa in Australia using fraudulent documents. The appellant was not provided with that information during the interview, as required by s 120 of the Act.
91 A Federal Magistrate dismissed an application for review of the cancellation decision, having found that the appellant gave untruthful answers in the interview and had provided other inconsistent information.
92 The appellant appealed to the Federal Court on the following grounds:
The first ground alleges that his Honour erred in holding that the appellant's alleged bad faith in falsifying his intention to be a genuine visitor to Australia was sufficient to deny him relief in circumstances where the decision to cancel his visa was affected by breaches of procedural fairness.
The second ground of appeal raised by the appellant asserts that it was not open to the Federal Magistrate to find, to the requisite standard of proof, that the appellant had displayed bad faith in his dealings with the delegate.
93 Cowdroy J dismissed the appeal. His Honour referred to NAWZ and to MIAC v Lu and concluded at [35]-[36]:
The court is satisfied that there was ample evidence to enable his Honour to reach the conclusion which he did, namely that the appellant had attempted to mislead the Minister by giving false answers to questions asked of him during the interview, and that thereby he engaged in bad faith. The court considers that upon the evidence, the Federal Magistrate was justified in concluding that the appellant's claims were implausible.
The breach of s 120 of the Act does not lead to the consequence that the Minister cannot find, in the exercise of a discretion, the existence of bad faith on the part of the appellant: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 108 [56]; NAWZ at [10]-[14]. The obligation remained upon the appellant to satisfy the Minister that the visa should not be cancelled. It was the inconsistent information given to the delegate which ultimately led the Minister to conclude that the appellant had engaged in conduct in bad faith.
94 Cowdroy J then considered whether it was open to the Federal Magistrate to conclude that there was bad faith in the appellant's dealings with the delegate. Having considered the evidence, his Honour concluded that "[t]he court is unable to find any error in his Honour [sic] conclusion".
95 Counsel for the first respondent stated that Cowdroy J's judgment in SZQBN upholding the Federal Magistrate's decision was set aside by consent in the High Court (on the basis of errors in relation to the nature of an appeal from the Federal Magistrate to the Federal Court) and remitted to the Federal Court for hearing. The High Court made no pronouncement as to whether the Federal Magistrate was in error.