Issues on the appeal
22 The thrust of the appellant's case here and below related to the appellant's non-attendance at a hearing of the Tribunal. On appeal, the appellant also referred to two other matters which he submitted constituted fraud on the part of Mr Han. It is convenient to deal with those two matters first.
23 As I have said, the appellant's case was that at least some parts of the statement were not correct. He deposed to the fact that some parts of the statement had been read to him, the statement was not correct and he did not give 'this' information to Mr Han. He admitted that it was his signature on the statement and that on one or two occasions after his first meeting with Mr Han he had been asked to come to Mr Han's office and sign some papers and that it was possible that he was asked to sign his name. The appellant said he could not read the document because he could not read English. In evidence in chief the appellant was taken to one part of the statement and he said that the events there described did not happen to him, nor did he know the persons referred to in that part of the statement. Later in cross-examination of the appellant it became clear that Mr Han spoke Mandarin very well and that the appellant had told Mr Han what his claims were.
24 The Magistrate did not make a specific finding about whether the statement accorded with the appellant's instructions. As I have said, the Magistrate said that there was no evidence of fraud in the case. I think the Magistrate must be taken to have found that Mr Han did not knowingly concoct the statement. On the evidence, it is unclear whether part of the statement was erroneous and, if so, whether this resulted from Mr Han's negligence, but it matters not in my view because even if these matters are made out they cannot give rise to a jurisdictional error on the part of the Tribunal.
25 As far as the allegation that Mr Han was fraudulent in his dealings with the third party is concerned, it is not entirely clear how the appellant puts his argument. If he is submitting that Mr Han was fraudulent in the advice he gave to the third party and that that in some way means that the Tribunal's decision in relation to the appellant was infected with jurisdictional error, then clearly that argument cannot succeed. If, on the other hand, he is submitting that Mr Han gave fraudulent advice to the third party and that that establishes he was fraudulent with all his clients including the appellant, then that argument must be rejected because there is no reason to disturb the Magistrate's finding that Mr Han's advice to the third party was not sufficient to establish that it was Mr Han's practice to advise all his clients in that way.
26 I return then to the main submission on the appeal which relates to the agent's advice and the appellant's non-attendance at a hearing of the Tribunal. The appellant's two submissions, which are put in the alternative, are that the fraudulent conduct of the agent and the appellant's non-attendance meant that the Tribunal's decision was infected with jurisdictional error or, assuming fraud was not present, there was a breach of the rules of procedural fairness which also gave rise to a jurisdictional error.
27 I start with the submission which takes as its basis the allegation that the agent's conduct was fraudulent. In examining the authorities it seems to me that it is not always clear what is encompassed by the word 'fraud' in this context. It would include the making a false statement knowing it was false or engaging in conduct which deceives another, knowing that it would, or was likely to, have that effect. It could include other circumstances and some of the authorities suggest that circumstances may be sufficiently analogous to fraud to lead to the granting of relief. I refer by way of example to Lord Bridges' explanation in Al-Mehdawi (at 895-896) of the basis of the Court of Appeal's decision in R v Leyland Justices; Ex parte Hawthorn [1979] QB 283.
28 In this case there would be fraud if Mr Han gave advice to the appellant which he knew to be incorrect, or if he said he would do something and at the time did not intend to do it. There is no fraud if the advice was merely negligent or erroneous and if at the time Mr Han intended to do what he said he would do. On the evidence in this case there was no obvious reason why Mr Han would act fraudulently in the way in which I have explained it. The Magistrate found that there was no evidence of fraud and I see no reason to interfere with that conclusion. Although Mr Han did not give evidence, there was insufficient evidence upon which to draw an inference of fraud. The appellant's submission based on fraud falls at the first hurdle.
29 Even if I am wrong and the Magistrate erred in not making a finding of fraud, such a finding would not lead to the setting aside of the Tribunal's decision. The effect of fraud by a migration agent on a decision of the Tribunal was considered by the Full Court of this Court in the recent decision of Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ('SZFDE'). Applicants for a protection visa engaged a man who said he was a solicitor with a lot of experience in migration matters. Unbeknown to the applicants he had been struck off as a solicitor and deregistered as a migration agent. He told the applicants that they should not accept an invitation to appear before the Tribunal at an oral hearing because their application would be refused. He told them that he was going to write to the Minister on their behalf and he was concerned that if they appeared before the Tribunal they might say something inconsistent with what he said in the letter. He told them not to worry, that he was doing what was best for them. The Magistrate found that the agent had acted dishonestly and fraudulently. In other words, his advice was not only bad, but also fraudulent. A majority of the Court (Allsop and Graham JJ) said that the fraud in that case did not provide a basis for setting aside the decision of the Tribunal. The Tribunal was not aware of the fraud and had complied with the Act in terms of extending an invitation to the applicants (ss 425, 425A).
30 Allsop J said that the decision of the Tribunal was not induced or affected by fraud (at [136]). Allsop J made the point that in the circumstances of the case before him the fraud was linked to the complaint that there had been a failure of procedural fairness. The complaint of a lack of procedural fairness could not succeed in light of ss 422B, 425 and 426A of the Act. Allsop J also said that it was not a case where it could be said that the statutory process was corrupted by fraud (at [139]). Graham J also dismissed the challenge based on fraud saying that even if there was fraud it was of no relevance (at [191] and [237]).
31 French J dissented. His Honour held that the fraud of the agent gave rise to a jurisdictional error on the part of the Tribunal, saying that the Tribunal made its decision (at [131]):
'… blamelessly but pursuant to a process which, unknown to it, was compromised by third party fraud.'
32 On the basis of the majority decision in SZFDE the appellant's submission that the fraud of Mr Han (assuming, contrary to my earlier conclusion, that he was fraudulent) vitiates the decision must be rejected.
33 The appellant's alternative submission was that the agent's conduct led to a breach of the rules of procedural fairness and that that gave rise to a jurisdictional error. This submission raises two questions. First, absent the particular statutory context, is there what might perhaps be called a general rule that there is a breach of the rules of procedural fairness if a party fails to attend a hearing due to the erroneous advice of his agent? Secondly, if there is such a rule, does the particular statutory context negate the rule or the granting of relief. I realise that dividing the issue into two questions is somewhat artificial, but I think it does assist in the overall analysis.
34 There are many cases in which the courts have considered whether, in the absence of fault on the part of the decision-maker, there can be a breach of the rules of procedural fairness. A number are discussed in the reasons for judgment of French J in SZFDE (see also Aronson, Dyer and Groves, Judicial Review of Administration Action (3rd ed, 2004) pages 460-463). They can perhaps be placed in various categories depending on one or more of: the powers the Court was exercising; the status of the person at fault (ie, party's agent, other party to the proceeding or a third party); the nature of the conduct of the party at fault (ie, fraudulent or negligent); and the effect of the procedural departure. It seems fairly clear on the authorities that there can be a breach of the rules of procedural fairness in the absence of fault on the part of the decision-maker: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 per Gleeson CJ at 448 [22]. Equally, it seems clear on the authorities that there is no breach of the rules of procedural fairness if the fault leading to the procedural departure was that of the agent of the applicant for relief. That was the view of the House of Lords in Al-Mehdawi (supra) and of French J (at [101]-[103]) and Allsop J (at [138]) in SZFDE. The appellant's alternative submission fails on this ground.
35 The submission would fail in any event because even if there was such a general rule it could not operate in the context of the provisions of the Act. Section 422B provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 425 requires that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That invitation was given in this case. Section 426A provides that where an applicant fails to appear in response to an invitation, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. That is how the Tribunal decided to proceed in this case and it was entitled to do so. The conclusion that the statutory provisions allow no room for a claim that there was a breach of the rules of procedural fairness based on the erroneous advice of an applicant's agent was a conclusion reached by a majority of the Court in SZFDE (per Allsop J at [138] per Graham J at [237]-[239]).
36 The decision of the Tribunal did not involve jurisdictional error and the Magistrate's decision that the application was not competent was correct.