SZBII and Anor v Minister for Immigration and Multicultural Affairs and Anor

FINDINGS 13 The appellant arrived in Australia on 19 February 2002 and on 25 February 2002 made an application for a Protection Visa. The appellant claimed to be a Falun Gong practitioner and that he was not allowed to practise his beliefs openly in the PRC. According to the appellant, he did not practise Falun Gong openly for fear of persecution. The appellant's wife claimed that she was required to report daily to the Neighbourhood committee and was forced to write confession letters. She says that she was arrested by the police on one occasion and was released only when her family paid a large sum of money to persons who had close relations with the local police. 14 By letter dated 7 June 2002 the Minister advised the appellant that his application for a Protection Visa had been refused. Such letter referred to inconsistencies in the appellant's claims that he was a Falun Gong practitioner and that the claims were vague and lacking in detail. Minister concluded that she was not satisfied that the appellant had ever had any involvement in Falun Gong and that the appellant did not have a genuine subjective fear of persecution if he returned to the PRC. 15 On 9 July 2002 the appellant lodged an Application for Review of the decision of the Minister to the Tribunal. By letter dated 23 May 2003 the Tribunal forwarded an invitation to the appellant to attend a hearing on Wednesday 18 June 2003 at 12.30 pm. The invitation was posted to the address of the appellant's migration agent, as contained in the application, and enclosed a 'Response to Hearing Invitation' form. 16 On 28 May 2003 the Tribunal received the completed Response to Hearing Invitation form dated 27 May 2003. In answer to the question 'Do you want to come to a hearing?' the box was ticked 'No, I/we do not want to come to a hearing'. It was signed by the appellant. Accordingly the Tribunal proceeded to deal with the Application for Review and delivered its decision on 5 August 2003. It found that the appellant was not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees, and concluded that the appellant did not satisfy the criterion for a Protection Visa set out in s 36(2)(a) of the Act. 17 The appellant then unsuccessfully sought judicial review of the Tribunal's decision before Nicholls FM as detailed above. In this Court the appellant raises two issues as considered hereunder.

ISSUE 1 - Could fraud by the migration agent give rise to jurisdictional error? 18 The sole basis for the assertion that there has been procedural error arises in consequence of the alleged fraudulent conduct by the appellant's nominated agent arising from his advice to the appellant that he would attend the hearing on his behalf and that it was not necessary for the appellant to attend. The appellant claims that there was a failure to comply with s 425 of the Act because he was not provided with a 'real and meaningful invitation', as considered in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37], because of the conduct of the migration agent. 19 Numerous authorities have held that, absent any default by the Tribunal in the fulfilment of its statutory obligations relating to the provision of an invitation to attend a hearing, no ground of procedural unfairness arises because of some default on the part of an agent retained by an applicant. In NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668, Barnes FM at 33, adopting the observations of Lord Bridge in Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 at 898, rejected the submission that fraud by an agent constituted jurisdictional error. In SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J considered the circumstance in which an applicant claimed his migration agent had acted without consultation or instructions and in consequence an invitation to attend a Tribunal hearing was declined. Her Honour concluded that since the Tribunal's letter was forwarded in accordance with the relevant statutory requirements, there was no failure to give the applicant the opportunity to appear before the Tribunal, even though the applicant claimed that he had never received it. Accordingly the Tribunal was entitled to make a decision on the application for review in the absence of the applicant. The same conclusions were made in Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23. In SZBBL v Minister for Immigration [2004] FMCA 185, Driver FM rejected the submission that there had been a denial of natural justice because of default on the part of the migration agent. His Honour's decision was upheld on appeal in this Court by Tamberlin J: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834. 20 In NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162, the Full Court considered an appeal in circumstances in which a Response to Invitation form signed by the appellant's migration agent was returned to the Tribunal stating that the applicant did not wish to attend the hearing. The Tribunal proceeded to make the decision without taking any further steps to invite the appellant to appear before it. The Court, having heard evidence from both the appellant and the agent, was satisfied that the appellant had appointed the agent and that the agent had acted in accordance with her actual authority in signing a response to the invitation to attend the hearing. The Court also held that since the requirements contained in s 425A and s 441A for the giving of notice to the appellant had been satisfied, the Tribunal had complied with its obligations under s 425(1) of the Act, even though the appellant was unaware of the invitation. The appellant had appointed the agent who '… acted in accordance with her actual authority in signing a response to the invitation to attend the hearing'. On appeal, the Full Court dismissed the appeal holding: 'The Tribunal's invitation to the appellant was sent in accordance with statutory requirements as identified by the primary Judge. The Tribunal complied with its obligations to give the appellant notice of the hearing, notwithstanding the appellant's assertions that she did not receive the notice. Accordingly there was no legal error in the primary Judge's decision which is consistent with the decision of the Full Court in NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184.'

21 In contrast, in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 the agent had correctly indicated to the Tribunal that his client wished to attend the hearing. Shortly before the hearing date the Tribunal changed the date. A further invitation was provided to the agent, who responded stating that the appellant did not wish to attend. However evidence established that in fact the appellant, being unaware of the date change, had attended at the hearing on the day and had always wished to provide further evidence in support of her case. Further, cross examination of her agent satisfied the Court that the agent's evidence that he received instruction from the appellant was unreliable. The Full Court found that the appellant had not authorised her agent either generally or specifically to complete the second Response to Invitation form. It concluded that s 441G of the Act had no operation if the agent for the appellant acted beyond the scope of his authority in returning the Response to Invitation contrary to the instructions provided by the appellant. The Full Court confirmed the finding of the Federal Magistrate that where there was no effective consent submitted to the Tribunal by an appellant concerning the hearing, the appellant was not bound by the conduct of the agent. 22 The facts of the present case do not raise this issue. The appellant acknowledges that he signed the Response to Invitation form. He did not speak English but he knew that the form related to an invitation to attend the hearing, and he signed the form knowingly indicating that he would not be attending the hearing. His complaint is that he was given the wrong advice by his migration agent, namely that the migration agent would attend the hearing. Unlike the unique circumstances in SZFML, the appellant does not claim that he wanted to attend the hearing. Rather, he was content for the migration agent to attend. 23 I consider that the circumstances now before the Court are indistinguishable from those considered in NASF. The appellant has not been denied an opportunity to attend the hearing and the Tribunal complied with the requirements of s 425, in the same way as was found by Bennett J in SZBZL. The Court therefore concludes that there was no jurisdictional error on the part of Nicholls FM. 24 Even if the appellant established fraud, in the sense of reckless conduct or dishonesty by his migration agent which resulted in a non-attendance at a hearing of the Tribunal, the decision of the Tribunal is not vitiated: see Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 in which Allsop J said at [136]: 'The parties did not attend a hearing to which they were invited, on the facts, because of the dishonest advice of their own agent. The decision itself was made, without the benefit of the participation of the respondents, but unaffected, and certainly not induced, by fraud.'

His Honour also said at [139]: 'There has been no fraud of the Tribunal. There has been no fraud of the executive department. There was an invitation to attend a hearing. That invitation was declined. That decision to decline the invitation was influenced by the dishonesty and fraudulent purpose of the agent of the applicants. I do not see the basis for a conclusion that there was any denial of procedural fairness or that those circumstance [sic] denied the Tribunal the authority to decide the review given the terms of ss 425, 426A and s 422B.'

25 In SZFDE the majority found that the legislative scheme contained in Div 4 of the Act required an invitation to be given to the appellant. Such invitation had been provided, and the decision not to attend resulted from the dishonest conduct of the agent. However, such conduct did not corrupt the decision or the statutory process. The majority considered that authorities which have upheld challenges to orders made against a party by a court in their absence through no fault of their own, such as Taylor v Taylor (1979) 143 CLR 1 and Cameron v Cole (1944) 68 CLR 571, are distinguishable because of the absence of the statutory scheme provided by the Act. 26 In SCAR the Full Court recognised that under certain circumstances the invitation process prescribed by s 425 of the Act may not have been fulfilled (see also SZFML). However, in SCAR the Full Court found that the Tribunal innocently provided unfair treatment to the appellant in circumstances where the appellant was ill. In Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322, the Tribunal provided a translator who was unable to speak the appellant's language. In VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100, the appellant was misled by statements of the Tribunal. In Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 359, the Tribunal declined to grant an adjournment of the hearing, knowing that the appellant was incapacitated. Although the requirement of s 425 had been followed, the invitation was held to be 'an empty gesture and a denial of procedural fairness'(see Hely J at 366 [36]). 27 In each of the above cases there was some error or omission or conduct on the part of the Tribunal which led to the hearing being infected with jurisdictional error. I am satisfied that the factual circumstances existing in those instances have no application to the present facts. The invitation was issued under s 425 and a response was provided by the appellant. In these circumstances the invitation process was carried out in accordance with s 425. It follows that in light of s 422B of the Act, natural justice has been afforded to the appellant. 28 In SZFDE French J dissented, finding that the fraud did affect the decision because it resulted in the non-appearance of the appellant before the Tribunal. As a consequence the Tribunal was deprived of the opportunity of exploring certain issues with the appellant. French J concluded that the Tribunal's decision 'was not one made under the Act, and therefore not a privative clause decision protected by s 474'. French J's decision recognises the possibility that where, through no fault of their own, an appellant is deprived of a hearing, circumstances may exist to vitiate the decision despite compliance with the requirements of the statutory scheme. This possibility was also recognised by the Full Court in SZFML. It is apparent that the facts in each case will be critical in determining whether consent by the appellant to the agent in fact existed. 29 This Court considers that it is bound to follow the majority in SZFDE, and to conclude that fraud, even if proved by the appellant, does not vitiate the decision of the Tribunal.

ISSUE 2 - Evidence relating to the alleged fraudulent conduct of the migration agent. 30 In view of the above finding, it is not necessary to consider this ground of appeal. However, the Court will nevertheless state its observations. 31 The appellant also challenges the finding of Nicholls FM that the MARA Notice would not establish fraudulent conduct by the agent and that the evidence before the Tribunal was not sufficient to establish fraud. The appellant sought to rely upon the MARA Notice as demonstrating a 'propensity' for the migration agent to have misled the appellant by conduct amounting to fraud, or conduct akin to fraud. 32 The MARA Notice referred to specific complaints made against the migration agent. Such conduct included lodging Protection Visa applications which showed false residential addresses, providing false statements on behalf of his clients to the Tribunal relating to their refugee claims and falsely representing himself as a solicitor. 33 In written submissions provided after the hearing, the appellant relied upon the dissenting judgment of French J in SZFDE wherein his Honour stated that 'the common law proposition that fraud may vitiate an administrative decision' extends to cover 'reckless conduct', and sought to establish that the evidence of the migration agent's wrongful conduct in the MARA Notice is relevant to the question of whether the agent's conduct was reckless. The appellant submitted that the MARA Notice would show a 'system' or 'pattern' and a repetitiveness of conduct which would strengthen the inference to be drawn from such evidence within the meaning of s 97(1) of the Evidence Act. 34 Nicholls FM held at [23]: 'Even if the conduct of the agent could be said to be fraudulent (or akin to fraud) none of this material or what the witness was expected to say, went to show irregular conduct on the part of the Tribunal. Nor on the basis of what the Full Court said in NASB where fraud is given as one specific example which could be relevant, does this material go to show fraud or even any other irregular conduct on the part of a Minister or those associated with the Minister. Nor does this material go to show fraud, perjury or other misconduct of a witness before the Tribunal.'

35 In NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 the Court referred to the 'degree of irregularity' that an applicant would need to show in order to obtain relief. Nicholls FM concluded that the details in the MARA Notice and the prospective witness' proposed statement did not 'bridge the gulf between the agent's conduct which led to his deregistration and the elements necessary to prove fraud (or for that matter 'something akin to fraud' whatever that may be).' 36 I am unable to find that there is any jurisdictional error in His Honour's conclusions. Section 55 of the Evidence Act establishes the parameters of the evidence which is admissible. His Honour was also entitled, pursuant to s 97(1)(b) of the Evidence Act to conclude that the evidence had no significant probative value. The evidence of the MARA Notice and of the proposed witness would do no more than establish a suggestion of misleading conduct between the migration agent and other parties. It does not establish any link between the conduct of the migration agent and the appellant in these proceedings. The Court is unable to find any jurisdictional error on the part of Nicholls FM, and the subsequent Full Court decision in SZFDE now conclusively determines that fraud by an agent does not result in jurisdictional error by a Tribunal. It follows that the appeal must be dismissed.

COSTS 37 An order that the appellant pay the costs of the first respondent in the sum of $2700 has been sought. The Court finds such amount to be reasonable and will make the order sought. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.