SZFNX v Minister for Immigration and Citizenship

Federal Court of Australia|2007-12-13|Before: Besanko J

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate on 29 January 2007. The principal order made by the Federal Magistrate was an order dismissing the appellant's application for constitutional writs directed to the Minister for Immigration and Multicultural and Indigenous Affairs, now the Minister for Immigration and Citizenship ("the Minister"), and the Refugee Review Tribunal ("the Tribunal"). 2 The appellant is a citizen of the People's Republic of China and he was born in Tianjin on 10 April 1953. He arrived in Australia on 30 August 2004. On 24 September 2004 he applied for a Protection (class XA) visa. On 29 September 2004 a delegate of the Minister refused to grant his application. On 1 November 2004 the appellant lodged an application for review with the Tribunal. On 22 December 2004 the Tribunal handed down a decision affirming the delegate's decision not to grant a protection visa to the appellant. 3 On 20 January 2005 the appellant lodged an application in the Federal Magistrates Court of Australia under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) ("the Act") seeking constitutional writs directed to the Minister and the Tribunal. The appellant's application was amended on 7 June 2006 and it was the amended application which was considered by the Federal Magistrate. There was one ground in the amended application and it was in the following terms: The applicant was deprived of the opportunity of attending a hearing in this matter in the Refugee Review Tribunal as a result of the wrongful conduct of his migration agent. The details of this claim are set out in my affidavit dated 3 May 2006. In the circumstances, there was a denial of procedural fairness and jurisdictional error. 4 The appellant was represented by counsel before the Federal Magistrate but appeared in person before me.

The Magistrate's reasons 23 The Magistrate summarised the appellant's evidence. He found that it was apparent from the sequence of events that letters sent by the Department and the Tribunal to the Pitt Street address came to the attention of the appellant. The Magistrate noted that the appellant did not allege any fault on the part of the Tribunal. 24 The Magistrate said that the appellant's claim was that he was unaware of the proposed Tribunal hearing on 2 December 2004 because his agent did not tell him about it. He noted that the appellant described the agent's conduct as "wrongful" and that the written submissions filed by counsel for the appellant sought to separate the issue of wrongful conduct into fraudulent and non-fraudulent conduct. The Magistrate said that while some authorities suggested that such a dichotomy might have been a useful one in proceedings, recent decisions binding on him led to a different conclusion. The Magistrate referred to various sections in the Migration Act and decisions of this Court, including the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 ("SZFDE"). The Magistrate took the view that an agent's wrongful conduct, whether fraudulent or not, in failing to inform an applicant of a hearing of the Tribunal of which notification had been given did not give rise to jurisdictional error. The Federal Magistrate did not make an express finding to the effect that the appellant's agent did not advise him of the proposed hearing before the Tribunal because he said that even if that were so it did not affect the result. He said that the outcome of the application for constitutional writs in relation to the decision of the Tribunal did not turn on whether or not the agent's conduct in not informing the appellant of the proposed Tribunal hearing was fraudulent. The Magistrate said: Therefore, the Tribunal was entitled under the Act to proceed to a determination notwithstanding that the applicant may not have been informed by his agent of the Tribunal's proposed hearing, with the result that the Tribunal's decision is not affected by jurisdictional error on this account. 25 As I have said, the Federal Magistrate did not find it necessary to make findings as to whether the appellant was aware of the proposed hearing of the Tribunal or whether, assuming he was not aware, that came about as a result of fraud or negligence or mistake on the part of Mr Lue. 26 On the authorities as they stood at the time of the Federal Magistrate's decision, his decision was correct: SZFDE; SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420. 27 The respondent in SZFDE sought and obtained from the High Court of Australia special leave to appeal against the decision of the Full Court of this Court. The appeal was heard on 24 May 2007 and, on 2 August 2007, the High Court handed down its decision. The Court reversed the decision of the Full Court of this Court: SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401.

Issue on the appeal 28 The appellant submitted that the Federal Magistrate erred in concluding that the Tribunal was entitled to proceed to determine the application for review even though he (the appellant) had not been informed of the proposed hearing of the Tribunal. 29 For his part, the Minister sought an extension of the time within which to file and serve a notice of contention. On 6 June 2007 I granted that extension of time. The notice of contention is in the following terms: The first respondent contends that the judgment of Federal Magistrate Cameron should be affirmed on the following grounds (not being grounds relied upon by the court below): 1. There was no evidence before Federal Magistrate Cameron upon which the Court could have found that the applicant's adviser had fraudulently failed to inform the applicant of the hearing before the Tribunal; and 2. Federal Magistrate Cameron should have rejected the applicant's contention that his adviser had fraudulently failed to inform the applicant of the hearing before the Tribunal. 30 The notice of contention was filed so that the Minister could submit that even if fraud by an agent, leading to an applicant not attending a hearing of the Tribunal, could amount to jurisdictional error, nevertheless, in this case, fraud could not be established and the appeal should be dismissed. 31 In SZFDE the High Court held that fraud by an applicant's agent causing the applicant not to attend a hearing of the Tribunal could constitute jurisdictional error. The Court said (at 1412 [51] and [52]): No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made in Div 4 Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal. The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj. 32 The effect of the decision of the High Court in SZFDE is that if an agent is fraudulent in his or her dealings with an applicant for review and that results in the applicant not being heard by the Tribunal then the Tribunal's decision may be void, the Tribunal's jurisdiction being "constructively unexercised". 33 Although it is not entirely clear, I think it is correct to say that it is not enough that the agent acts negligently or incorrectly; he or she must act fraudulently. In SZFDE the High Court said (at 1412-13 [53]) (footnotes omitted): The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations. Whilst it might be possible to construe the above passage as limited to bad or negligent advice provided to an applicant who actually appears before the Tribunal, I think there is sufficient indication in the decision of the Full Court of this Court in SZFDE that an applicant's failure to appear before the Tribunal by reason of the bad or negligent advice of his or her agent, as distinct from fraudulent advice or conduct, is not without more sufficient to constitute jurisdictional error: French J at 391-392 [101]-[103]; Allsop J at 401-402 [138]-[139]. 34 Furthermore, the fraud must affect the process prescribed by the Act, in particular, whether the applicant has had the opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 35 The Minister submitted that there was simply no evidence of fraud before the Federal Magistrate and that in those circumstances it was appropriate to dismiss the appeal. 36 The Federal Magistrate did not make any findings as to whether Mr Lue had been fraudulent in his dealings with the appellant and whether that had affected the process prescribed in the Act. That was understandable on the authorities as they stood at the time of his decision. However, the effect of the decision of the High Court in SZFDE is that the question of fraud and its effect on the process must be considered. 37 In my opinion, the question of whether there was even an arguable case of fraud raised before the Federal Magistrate is finely balanced. Counsel for the Minister referred to the transcript of the hearing before the Federal Magistrate and reminded me of the fact that strong evidence is usually required to establish fraud. He referred to Briginshaw v Briginshaw (1938) 60 CLR 336. There is considerable force in the Minister's submissions. The appellant appears to have changed his story on whether his signature appears on one of the documents. More importantly perhaps is that, on the face of it, it is difficult to discern a motive for any fraudulent dealing on the part of Mr Lue. Despite these considerations, I do not think I should go so far as to conclude that on no possible view of the evidence before the Federal Magistrate could fraud be established. If the appellant's signature was falsely placed on a relevant document and part of a statement "made up", then that may go some way towards establishing fraud, although it will still be necessary for the appellant to show that the fraud (if there be fraud) has affected the process prescribed by the Act. I am not to be taken as saying that it is likely that fraud will be made out, but simply that I cannot be certain that it cannot be made out. It seems to me that the application for constitutional writs must be remitted to the Federal Magistrates Court for rehearing in accordance with these reasons. I am satisfied that the circumstances are such that a rehearing of the application is necessary.

Conclusions 38 The appeal must be allowed and the orders made by the Federal Magistrate on 29 January 2007 must be set aside. The application is remitted to the Federal Magistrates Court of Australia for rehearing in accordance with these reasons. I will hear the parties on the question of costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 2 May, 6 and 27 June 2007

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