SZVDC v Minister for Immigration and Border Protection

Federal Court of Australia (Full Court)|2018-02-14|Before: Markovic JJ

background 2 The appellant is a citizen of Egypt. He arrived in Australia on a student visa on 5 July 2007. On 13 August 2012 the appellant applied for a Protection (Class XA) visa (Visa). 3 The appellant claimed to fear persecution as a result of his father's murder and the shooting of his brother in the arm in October 2011. He claimed that if he returned to Egypt he would be harmed by "people that are against the current President" and that, because his family supported the current President and his father served as Secretary of the National Party, he believed that there would also be an attempt to shoot him. 4 In support of his application for the Visa the appellant submitted a statutory declaration explaining the reason for his delay in lodging the Visa application and translations of documents titled "Police report", "Patients receiving ticket" and "Copy of Death Certificate 0392511". 5 On 3 January 2013 the appellant attended an interview with a delegate of the first respondent (Minister). During the interview the appellant indicated to the delegate that his mother had the original death certificate and that he would produce it to the Department of Immigration and Border Protection (Department) for assessment. However, on 8 February 2013 the appellant's representative advised the Department that the appellant was unable to obtain that evidence and asked the delegate to proceed without it. 6 On or about 1 May 2013 the Department received an anonymous "dob-in" by telephone alleging that the appellant had provided false documents and made false statements in his Visa application. In particular, the source advised that the appellant had provided the Department with a false death certificate for his father; that the appellant's father was still alive; and that the appellant had lied when he mentioned that his brother had been shot. The anonymous caller also supplied telephone numbers for the appellant's father in Egypt. 7 On 28 May 2013 the Department requested its embassy in Cairo to make inquiries with the relevant Ministry in Egypt about the death certificate and to contact the appellant's family in Egypt on the telephone numbers provided. On 30 May 2013 the embassy in Cairo reported the results of its inquiries and the content of a telephone call with the appellant's father to the Department. 8 On 14 June 2013 the Department wrote to the appellant requesting additional information. In its letter it informed the appellant that it had received information that he had provided false information in his Visa application. The information was described as follows: • that you fabricated claims that your father was killed and that your brother was shot during an incident in 2011. • that you submitted a false death certificate for your father to the department and that he is in fact still alive. 9 The letter informed the appellant that the information may impact the outcome of his Visa application and allowed him an opportunity to provide a response in writing within 14 days of his deemed receipt of the letter. 10 On 26 June 2013 the appellant responded, stating that he had not lied about his father's death and that the person with whom the embassy had spoken in the telephone conversation was his uncle. 11 On 2 July 2013 the delegate refused the appellant's application for the Visa. The delegate explained in detail why he did not accept the veracity of the appellant's claims, referring to inconsistencies and discrepancies in the appellant's written and oral claims and in the documents provided by the appellant in support of his application. At page six of his decision record, under the heading "Father's death", the delegate set out the adverse information that had been provided in the Department's letter to the appellant dated 14 June 2013 as follows: In May 2013, the department received information that the applicant had submitted false information to the department in respect of his claims for Protection. The information indicated that the applicant's father was still alive and that the death certificate submitted to the department by the applicant is fraudulent. On 30 May 2013, an officer from the department's embassy in Cairo telephoned the applicant's family in Egypt. A person who identified himself as … (the applicant's father's name) stated that his son … had been in Australia for four years and that he had travelled to Australia as a Student. The above discrepancies and inconsistencies lead me to a state of scepticism about the veracity and genuineness of the police report, death certificate and the applicant's claims about this incident. 12 On 6 August 2013 the appellant applied to the second respondent (Tribunal) for review of the delegate's decision, attaching a copy of the delegate's decision to his application. 13 By letter dated 3 December 2013 the Tribunal informed the appellant that it had considered the material before it but that it was unable to make a favourable decision on that information alone and invited the appellant to a hearing scheduled to take place on 15 January 2014. Because the appellant was unable to attend on that day, the hearing was postponed to 30 January 2014. 14 By letter dated 15 January 2014 the Tribunal was informed that the appellant had appointed a new representative, Sam Issa. Mr Issa provided a document to the Tribunal titled "Authority to have decision made on papers before the Tribunal" by which the appellant authorised and directed Mr Issa "to request a decision to be made on the papers before the Tribunal". 15 On 20 January 2014 the Tribunal handed down its decision affirming the decision under review. At [32]-[33] of its decision record the Tribunal stated: 32. As the applicant has not availed himself of the opportunity to attend the hearing the Tribunal is unable to discuss with him the significant credibility issues raised by the delegate. The Tribunal has been unable to discuss with him the failure to provide documents that he indicated that he would be able to provide. More importantly the Tribunal has been unable to explore with him why he claims it was his uncle who spoke to the Australian government officials and not his father. It has not been able to discuss with him the evidence that indicates that his father is still alive. 33. Based on the evidence before it the Tribunal is not satisfied that the applicant's father is dead or that his brother was attacked and injured. Therefore it cannot be satisfied that his father was killed as a result of his political activities and his brother harmed because of their father's political activities. As the Tribunal is not satisfied that the applicant's father and brother have been targeted for his father's political activities the [T]ribunal it is not satisfied that the applicant is similarly at risk of serious or significant harm in Egypt. The Tribunal is not satisfied that his family follows the National Party or the NDP consequently it is not satisfied that there is a real chance that the applicant will be serious harmed or that there is a real risk that he will be significantly harmed for this reason. 16 The Tribunal was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution for a Convention reason, nor was it satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Egypt, there was a real risk that he would suffer significant harm.

proceedings before the federal circuit court 17 On 23 September 2014 the appellant commenced proceedings in the Federal Circuit Court for judicial review of the Tribunal's decision. Because the application was made after the statutory timeframe mandated by s 477(1) of the Act had expired, the appellant required and sought an extension of time under s 477(2) of the Act. 18 Before the Federal Circuit Court the appellant raised one ground of review, as written: 1. The Tribunal denied the Applicant procedural fairness by failing to the Applicant adverse evidence which led the Tribunal to make an adverse credibility finding. Particulars i) The Tribunal made a number of adverse credibility finding without properly putting its concerns to the Applicant or properly putting to the Applicant the implications of such concerns. ii) Although the Applicant elected not to attend the oral hearing, the Tribunal failed in its duty to put the adverse evidence referred to in paragraph 25 of decision record for comment. iii) The Tribunal applied the same reasonings and findings of the Delegate of the Minister without making further enquiries or making its own findings. 19 The Federal Circuit Court dismissed the appellant's application pursuant to s 477(2) to extend the period prescribed by s 477(1) of the Act. The court was not satisfied that the appellant had provided an adequate explanation for the delay in lodging his judicial review application: SZVDC v Minister for Immigration & Anor [2015] FCCA 2304 (SZVDC FCCA) at [3]-[6]. Nor was the court satisfied that the appellant's pleaded ground had merit. 20 In relation to the first particular of the pleaded ground the Federal Circuit Court held that the Tribunal made no adverse credibility findings. The court found that the Tribunal said that, because the appellant did not avail himself of the opportunity to appear at the hearing before the Tribunal, the Tribunal was "unable to discuss with him the significant credibility issues raised by the delegate". The court also found that, because the delegate had raised a number of matters relevant to the credibility of the appellant's claims, he was on notice that the credibility of his claims was an issue before the Tribunal and the Tribunal was not obliged to give the appellant any notice of those matters: SZVDC FCCA at [14]. 21 In relation to the second particular of the pleaded ground the Federal Circuit Court said at [15]: ... The particular, however, appears to intend to refer to the adverse evidence that is identified in paragraph 26 of the Tribunal's reasons. That paragraph sets out part of the delegate's reasons which identify a number of matters relating to three documents the applicant submitted in support of his claim that his father had been killed and his brother injured. That the delegate identified these matters in his reasons was sufficient notice to the applicant that they would be matters in issue before the Tribunal. The applicant, therefore, had an opportunity to address those issues with the Tribunal had he so elected. Further, the applicant elected not to accept the Tribunal's invitation to attend a hearing before the Tribunal to give evidence. By making that election, the applicant "is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them". (footnotes omitted) 22 In relation to the third particular the Federal Circuit Court found that the Tribunal exercised its own mind on the application before it and rejected the appellant's allegation that the Tribunal was obliged to make its own inquiries, noting that the Tribunal does not have a general duty to make inquiries and at most has a duty to inquire about critical facts the existence of which may be easily ascertained: SZVDC FCCA at [16]-[17]. 23 The Federal Circuit Court also addressed a claim made by the appellant at the hearing that the Tribunal's decision was vitiated by the fraud of the appellant's migration agent at [18]-[19] as follows: 18 At the hearing before me, the applicant complained that his lawyer "destroyed my case". The applicant complained that his lawyer failed to advise him about what evidence he should give to the Tribunal, and he failed to inform the applicant of any hearing before the Tribunal. The applicant, however, acknowledged he signed a document which authorised his lawyer to request the Tribunal to decide the applicant's application for review "on the papers before the Tribunal". 19 The matters the applicant stated before me raise no arguable case of any fraud by the applicant's lawyer; the matters, therefore, raise no arguable case of jurisdictional error. Further, given the issues the delegate identified in relation to the applicant's claims, and the applicant's not identifying to me any documents or information which the applicant believes could have been put to the Tribunal to address those issues, the applicant's lawyer's advice that the applicant authorise the lawyer to request the Tribunal deal with the application "on the papers" may well fall within the range of reasonable advice that could have been given to the applicant.

proceedings before the primary judge 24 On 17 June 2016 the appellant filed an originating application for relief under s 39B of the Judiciary Act in this Court seeking review of the judgment of the Federal Circuit Court. 25 A statement of claim filed with the originating application included: 1. The [Federal Circuit Court] erred by failing to find that the decision of the [Tribunal] was affected by a jurisdictional error due to the failure of the my (sic) migration agent to comply with his statutory obligations under s 314(1) of the Migration Act 1958 (Cth). 2. The [Federal Circuit Court] erred by failing to consider relevant integers of the case. 3. The [Federal Circuit Court]'s judgment was affected by a breach of natural justice. 26 The Minister relied on an affidavit affirmed by his solicitor on 23 September 2016. The affidavit annexed a letter dated 12 August 2013 and addressed to the Tribunal by which a delegate of the Minister notified the Tribunal that s 438(1)(b) of the Act applied to certain information in the Department's file relating to the appellant because it was given to the Minister or an officer of the Department in confidence (Certificate). 27 The primary judge set out the background to the proceeding and a summary of what had occurred before the delegate, the Tribunal, the Federal Circuit Court and the High Court of Australia (High Court): SZVDC v Minister for Immigration and Border Protection [2016] FCA 1382 (SZVDC) at [5]-[24]. In setting out the events leading to the delegate's decision, the primary judge said at [11]-[12]: 11 The documents recording that "dob-in" call and what was done with that information and other related information were not before the Tribunal, being the subject of a certificate under s 438(1)(b) of the Migration Act. The certificate was annexed to an affidavit read in these proceedings because it was not before the primary judge and was brought to the Court's attention by the Minister as a model litigant. I was informed by the solicitor for the Minister that all of the documents referred to in the s 438(1)(b) certificate pertaining to the issue of the applicant's father still being alive were included in the Court Book before the primary judge. I have checked for myself and that appears to be correct in that the original "dob in" report, the request to check as to whether the applicant's father is still alive and the email reporting on that check are all reproduced, being the sources of the information in the preceding paragraph. 12 It follows that there does not appear to be any factual or legal issue in these proceedings arising from the s 438(1)(b) certificate and the relevant documents to which it partly relates not being before the Tribunal. Further, the issue that arose in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 does not seem to arise in this case legally either, because this application does not have anything to do with any jurisdictional error on the part of the Tribunal, and in any event, as already noted, the underlying information concerning a telephone call being made was not apparently in dispute. For the same reasons, this case is similarly not affected by the pending appeal to the Full Court in Minister for Immigration and Border Protection v Avtar Singh & Anor, being an appeal by the Minister from Singh v Minister for Immigration & Anor [2016] FCCA 2464 to address the certificate issue raised in MZAFZ. The issue covered by the relevant s 438(1)(b) certificate documents was able to be addressed by the applicant in any event. 28 Because of the limited nature of the application before the primary judge, its success depended upon the appellant being able to demonstrate jurisdictional error on the part of the Federal Circuit Court. The primary judge was not satisfied that the Federal Circuit Court fell into jurisdictional error in refusing the extension of time application and dismissed the application before him with costs. Relevantly: (1) in relation to the first ground of review, the allegation of fraud by the appellant's migration agent, the primary judge noted that the appellant had acknowledged in the course of hearing before the Federal Circuit Court that he had signed a document that authorised his lawyer to request that the Tribunal decide his application for review on the papers and that, in the course of the hearing before the primary judge, he had made the same acknowledgement. The primary judge observed that the appellant suggested that he had signed the authorisation without appreciating its significance but that there was no evidence in support of that assertion. Of greater consequence to the primary judge's consideration was that the Federal Circuit Court's reasons suggested that the appellant did not make that allegation before it and that it carried "the hallmarks of recent invention": SZVDC at [41]. The primary judge held that the first ground failed because no error on the part of Federal Circuit Court had been established in relation to what was before that court, let alone jurisdictional error; (2) in relation to ground two, an allegation that the Federal Circuit Court failed to consider relevant integers of the case, the primary judge noted the Minister's submission that the ground was a general and unparticularised assertion. His Honour held that it did not disclose any jurisdictional error on the part of the Federal Circuit Court and that, as there was no substance to it, the ground must fail; and (3) in relation to the third ground, an allegation that the Federal Circuit Court's decision was "affected by breach of natural justice", the primary judge again noted the Minister's submission that it was a general and unparticularised assertion that did not disclose any jurisdictional error on the part of the Federal Circuit Court and observed that the appellant did not attempt to make any submissions in support of the ground. Accordingly, the primary judge held that there was no substance to the ground and that it must fail.

the appeal 29 At the hearing of the appeal the appellant was granted leave to file an amended notice of appeal which raised the following grounds: 1. The Court below erred in finding that there was no jurisdictional error in the judgment of the Third Respondent. Particulars (a) The Court below erred in failing to find that the appellant was denied procedural fairness in the proceedings before the Federal Circuit Court by reason of the non-disclosure of the s 438(1)(b) notice. (b) The Court below erred in failing to find that the decision of the Federal Circuit Court was affected by fraud or analogous circumstances by reason of the nondisclosure of the s 438(1)(b) notice. (c) The Court below erred in failing to find that the decision of the Federal Circuit Court was affected by jurisdictional error by reason of failing to properly address the appellant's complaint that his non-attendance at the Tribunal hearing was affected by the fraudulent conduct of his lawyer. 2. The Court below erred by distinguishing the Appellant's case from MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. 30 The amended notice of appeal raises three issues: (1) whether the primary judge erred in failing to hold that the Federal Circuit Court made a jurisdictional error by not identifying an error by the Tribunal with respect to the existence of the Certificate; (2) whether the Federal Circuit Court erred in the exercise of its jurisdiction, denying the appellant procedural fairness, because the Minister engaged in fraud on the court by not disclosing the Certificate in the Federal Circuit Court proceeding; and (3) whether the primary judge erred by failing to hold that the Federal Circuit Court had erred in the exercise of its jurisdiction in dealing with the appellant's allegation that his lawyer had engaged in fraud.

Review under s 39B of the Judiciary Act 31 An issue which arises in the disposition of all three issues raised by the amended notice of appeal concerns the nature of review under s 39B of the Judiciary Act. As noted by the primary judge at [3] of SZVDC, that review is for jurisdictional error, in this case, on the part of the Federal Circuit Court. 32 In SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 (SZUWX) a Full Court of this Court (Allsop CJ, Flick and Bromwich JJ) had before it an appeal from a decision of a single judge of this Court dismissing an application for review of a decision of the Federal Circuit Court. The Federal Circuit Court had refused to extend time under s 477(2) of the Act to enable the appellant to have a decision of the Refugee Review Tribunal (RRT) judicially reviewed. Among other things, the Federal Circuit Court judge considered whether extending the time within which to bring an application for review was in the interests of the administration of justice but determined that it was not. The primary judge interpreted the Federal Circuit Court judge as regarding the appellant's proposed case as arguable, but not particularly compelling: SZUWX at [3]-[4]. The questions before the Full Court, identified by Bromwich J at [5], were whether the lack of prejudice to the Minister in granting the extension of time was a mandatory relevant consideration; whether failing to take that lack of prejudice into account was a jurisdictional error; and whether the Federal Circuit Court failed to take lack of prejudice to the Minister into account. 33 The appeal was dismissed. Each of the members of the Court found that the case proceeded before the Federal Circuit Court on the premises that there was no prejudice to the Minister; that the absence of prejudice had not been ignored; and that the absence of prejudice was common ground between the parties and not an issue that needed to be determined. In relation to the second issue, whether failing to take the lack of prejudice into account was a jurisdictional error, Bromwich J said at [9]: The primary judge carefully analysed the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 (Craig) and applied it to s 477(2) of the Migration Act. His Honour, following Craig, held that the appellant's argument failed to give effect to the breadth of the discretion conferred upon the Federal Circuit Court of Australia by s 477(2) of the Migration Act and further failed to grapple with the important fact that it was a judge and not a member of the executive, such as the Tribunal, who had to determine whether time should be extended. 34 In a separate judgment Allsop CJ said at [20]-[21]: 20 The question as to when a judge exercising the judicial power of the Commonwealth may commit jurisdictional error as opposed to error within jurisdiction is an important one. It is well-known that error that may be committed by a member of the executive may be jurisdictional error, but error of a like kind when committed by another person, perhaps also in a non-judicial context or in a judicial context, would be error within jurisdiction. One only needs to recall the case of Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194. 21 There is no need, in the present case, to deal with this as a matter of principle. Here, in my view, there was no error. If, however, there was some degree of error in this case, I agree that it could not be seen to be jurisdictional. That last comment should not be used as a logical premise for argument in any further cases. The question of whether an error is jurisdictional is, and always will be, context-specific as cases such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 make clear. 35 In Craig v The State of South Australia (1995) 184 CLR 163 (Craig) the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) recognised that, in considering what constitutes jurisdictional error, it is necessary to distinguish between inferior courts and certain tribunals exercising governmental powers, noting that both categories are amenable to the writ of certiorari. Their Honours observed at 177 that: An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. 36 The High Court noted that jurisdictional error was "at its most obvious" where an inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind that wholly or partly lies outside the theoretical limits of its functions and powers. The Court further noted that, less obviously, an inferior court can fall into jurisdictional error where it does something that it lacks authority to do; where it disregards or takes account of a matter in circumstances where the statute or instrument establishing it and conferring its jurisdiction requires that the particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case; or where it misconstrues that statute or other instrument and thus misconceives the nature of the function it is performing or the extent of its powers in the circumstances of the particular case: at 177-178. 37 At 179-180 their Honours said: [T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. 38 The distinction between tribunals and inferior courts and, in particular, the wider jurisdiction within which a court of law is permitted to err necessarily informs the consideration of whether the Federal Circuit Court has in this case fallen into jurisdictional error.

The first issue - the effect of the Certificate 39 The first way in which the appellant alleges that the primary judge erred in finding that there was no jurisdictional error in the judgment of the Federal Circuit Court is by reason of the non-disclosure of the existence of the Certificate.

Parties' submissions 40 The appellant submitted that the decision in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 (MZAFZ) establishes that procedural fairness requires the Tribunal to disclose the existence of the notification under s 438 of the Act to an applicant for review; give the applicant an opportunity to make submissions as to its validity; disclose to what extent the Tribunal was going to take into account information covered by the notification; and give the applicant an opportunity to seek a favourable exercise of discretion under s 438(3)(b). The appellant further submitted that there was jurisdictional error in the decision of the Tribunal because he was denied procedural fairness in that, if he had been informed of the existence of the Certificate, he may have made submissions about the application of s 438(1)(b) to the documents in question or he may have submitted that he should be provided with further particulars about the information covered by the Certificate to enable him to rebut the anonymous "dob-in". 41 He submitted that the issue for the Federal Circuit Court was whether to exercise the discretion to extend time under s 477(2) of the Act; that in exercising that discretion the court was required by s 477(2)(b) to consider whether it was "necessary in the interests of the administration of justice" to extend time; and that, in considering the interests of the administration of justice, the Federal Circuit Court was obliged to engage in a preliminary examination of the merits of the application, involving an assessment of whether the case was "reasonably arguable" or had "reasonable prospects of success". 42 The appellant acknowledged that the question for the primary judge was whether there was jurisdictional error affecting the decision of the Federal Circuit Court to refuse an extension of time. He submitted that the question for the primary judge was whether, as a result of the non-disclosure of the Certificate in the proceeding before the Federal Circuit Court, the appellant was denied procedural fairness in that proceeding. The appellant further submitted that he would have been denied procedural fairness if he was denied the opportunity to advance an argument that could have supported a "reasonably arguable" or "sufficiently arguable" case that the Tribunal's decision was affected by jurisdictional error in order to justify an extension of time. He contended that he had a reasonably arguable case that the Tribunal's decision was affected by jurisdictional error as a result of the failure to disclose to him the existence of the Certificate and that, because the existence of the Certificate was still not disclosed to him in the proceeding before the Federal Circuit Court, he was denied the opportunity to advance an argument that could have, and most likely would have, enabled him to obtain an extension of time under s 477(2). 43 The appellant submitted that the denial of procedural fairness identified in MZAFZ and in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 (Singh) arose from the failure of the Tribunal to disclose the existence of non-disclosure certificates issued under the Act. He submitted that, even if all of the documents covered by the Certificate were in fact contained within the court book filed in the Federal Circuit Court, that would not be an answer because he was nonetheless denied the opportunity to put an argument to the Federal Circuit Court of the type referred to in MZAFZ based upon the existence of the Certificate. 44 The Minister submitted that this ground failed at a factual level because the appellant chose not to attend the Tribunal hearing, despite being on notice that a favourable decision could not be made on the papers, and his election or waiver affected the Tribunal's procedural fairness obligations. The Minister noted that, in the context of the adverse information the subject of the Certificate, the Federal Circuit Court cited S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492; [2004] FCAFC 283 (S58) at [25]. 45 The Minister submitted that the information the subject of the Certificate was in the court book in evidence before the Federal Circuit Court and, as the primary judge observed, available to the appellant to be addressed if the information gave rise to any relevant unfairness. The Minister further submitted that at no stage of any of the applications before the Federal Circuit Court, the primary judge or the High Court had the appellant identified any plausible unfairness in relation to those documents and the adequacy of the particulars given to him by the Department. 46 The Minister submitted that these considerations distinguish this case from Singh in that: (1) there is no procedural unfairness in the Tribunal not disclosing a non-disclosure certificate issued under the Act to an applicant who, having been informed by the Tribunal that it was unable to make a favourable decision on the material before it, chooses not to attend the hearing because, in those circumstances, the applicant has elected to allow the Tribunal to determine the case adversely on the papers; and (2) even if the applicant had attended the Tribunal hearing, on review before a court, once the critical documents to which a certificate applied are adduced in evidence, the court is able to determine whether an applicant was given sufficient particulars of the documents to alleviate any unfairness arising from the certificate not being disclosed. 47 The Minister submitted that, even if that were not the case, an error by the Tribunal with respect to the Certificate is not a jurisdictional error by the Federal Circuit Court. 48 After the hearing of the appeal the parties sought and were granted leave to file short submissions addressing the potential relevance of the recent decisions of a Full Court of this Court (Kenny, Tracey and Griffiths JJ) in Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (BJN16), Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (CQZ15) and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (BEG15). 49 The Minister submitted that the Full Court's decisions, particularly CQZ15, are relevant to the appellant's argument that he lost a real opportunity to argue before the Federal Circuit Court that the Tribunal had erred by not disclosing to him the existence of the Certificate. The Minister reiterated his contention that the particular circumstances of the appellant's case could not give rise to any error in relation to the Certificate and that there was no substantive argument available to the appellant that he had been denied procedural fairness by the Tribunal. He submitted that the Full Court's comments at [68]-[69] and [73] of CQZ15 further supported that contention, noting that similar comments appeared in the Court's reasons in BJN16 and BEG15. 50 The appellant submitted that the Minister's contention that no substantive argument was available to him could not be accepted because: (1) the issue in the appeal is whether the appellant was denied procedural fairness in relation to the decision of the Federal Circuit Court. The Full Court has accepted that the failure by the Tribunal to disclose the existence of a s 438 certificate may give rise to a denial of procedural fairness, relying on BJN16 at [63] and CQZ15 at [61]. By reason of the failure to disclose the existence of the Certificate in the Federal Circuit Court, the appellant was denied the opportunity to consider or submit to that court that the failure to disclose the Certificate sustained a sufficiently arguable case to warrant an extension of time; (2) the recent decisions of the Full Court do not suggest that the appellant could have no substantive argument that he had been denied procedural fairness by the Tribunal because of the non-disclosure of a s 438 certificate. The Full Court contemplated that no denial of procedural fairness might occur notwithstanding the non-disclosure of a s 438 certificate if the documents covered by the certificate were incapable of having any bearing on the Tribunal's decision, referring to CQZ15 at [69], or if the documents were of no relevance or ignored by the Tribunal, referring to BEG15 at [24]; and (3) the documents covered by the Certificate related to the anonymous "dob-in" information, which was centrally relevant to the decision of the Tribunal and was taken into account by the Tribunal, and the appellant was deprived of the opportunity to put submissions to the Tribunal of the kind described at [40] above. 51 The appellant further submitted that the decisions in BJN16, CQZ15 and BEG15 explain the application of MZAFZ and Singh but do not assist the Minister in this appeal.

Statutory framework and relevant legal principles 52 Section 438 of the Act, which is included in Div 7 of Pt 7, is headed "Tribunal's discretion in relation to disclosure of certain information etc.". It provides: (1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. (4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information. 53 MZAFZ, which was handed down on 7 September 2016, concerned an application for an extension of time within which to apply for leave to appeal and an application for leave to appeal. Among other things, Beach J granted the extension of time and leave to appeal and allowed the appeal. His Honour accepted that the Tribunal committed a jurisdictional error based on the legality of the procedure adopted by it in relation to a certificate issued pursuant to s 438(1)(a) of the Act. 54 In relation to the ground of appeal on which the applicant succeeded before him, Beach J first considered the validity of the certificate issued pursuant to s 438(1)(a) of the Act and concluded that it was invalid: at [37]-[38]. His Honour considered the consequences of that invalidity and, after doing so, turned to consider the consequences of a valid certificate. His Honour said at [46]: If the Tribunal proceeded on the basis that the certificate was valid, it is entirely unclear to me how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. All that one knows is that the Tribunal had the certificate and its subject documents, but did not exercise any power of disclosure under s 438(3)(b). One is also left in the dark as to the extent to which the Tribunal had regard to any matter contained in the documents or information therein as it was entitled to do under s 438(3)(a); the Tribunal's reasons at [19] are too general to answer that question. Perhaps one can infer that it was not adverse to the applicant. If it had been adverse, and was taken into account, then this may have manifested itself in some form of disclosure under s 424AA or s 424A and under s 438(3)(b) itself. But no such disclosure was made. Accordingly, it may be inferred that the documents or information were either neutral or positive to the applicant's interests. But it is still unclear the extent to which the "entitlement" in s 438(3)(a) was availed of. Perhaps one can assume that it was not substantially availed of. If it was, perhaps disclosure might have occurred under s 438(3)(b) and as a part of ss 425 and 427(1)(c). Disclosure would not have been made under s 424AA or s 424A in combination with s 438(3)(b) as the former provisions deal with information adverse to the applicant's interests; the immediate hypothesis is that the information is neutral or positive to the applicant's interests. But to be clear, it does not necessarily follow that because s 438(3)(a) was invoked, s 438(3)(b) would then have been triggered. (original emphasis) 55 Beach J concluded at [48] that, while the Tribunal had before it the documents covered by the certificate, how it had regard to those documents was opaque. At [50] his Honour said: Procedural fairness required that the Tribunal ought to have (but did not in the present case): (a) disclosed the existence of the certificate to the applicant; on this aspect, I do not propose to follow what was said in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [29] per Dowsett J who was in any event discussing s 375A and was influenced by the strictures thereof that did not contain an equivalent to s 438(3) (his Honour was not discussing s 376); (b) given the applicant the opportunity to make submissions on the validity of the certificate if she so chose; of course there is an air of unreality to affording such an opportunity to a self-represented litigant who requires an interpreter, but that does not deny the existence of any such requirement; (c) disclosed to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the applicant; (d) given the applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b). 56 In Singh a Full Court of this Court (Kenny, Perram and Mortimer JJ) considered whether the Tribunal is required, as a matter of procedural fairness, to disclose to an applicant the existence of a certificate issued pursuant to s 375A of the Act, which is in similar but not identical terms to s 438 of the Act. 57 At [12] the Full Court noted that there was a potential tension between ss 359A and 375A of the Act in that, if the Tribunal proposes to use a document or information which is subject to a certificate issued pursuant to s 375A as part of its reasons for affirming a decision under review, s 359A appears to require the Tribunal to give an applicant particulars of that document or information which, at the same time, s 375A requires not be disclosed. Their Honours then noted that there were conflicting views about how that apparent tension might be resolved. 58 Their Honours observed that in the case before them the Tribunal did in fact provide particulars to the respondent, Mr Singh, pursuant to s 359A of the Act on two separate occasions: at [14]. At [16] their Honours said: It is not clear, and we do not need to resolve, whether these particulars touched on the material the subject of the certificate. That material was not before the Court below, and although an affidavit was filed in this Court with the material annexed to it, that affidavit was not ultimately read on the appeal. The relationship between the particulars given to Mr Singh and the certificate remains therefore opaque. No submission was made to this Court that the material subject to the certificate was irrelevant to the issues under review (as its contents might be read potentially as suggesting). Such a submission would have required, for its assessment, that the Court examine the material itself. As we have said, ultimately that material was not put before us. 59 The Full Court noted that the primary judge had concluded that there was an obligation of procedural fairness on the Tribunal to disclose the existence of the certificate, which was contrary to the decision in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 (Davis), and that the reason the primary judge did not apply Davis was because, in his view, it had been "overcome by the more recent decision" in MZAFZ: at [22]-[23]. The Full Court agreed with obiter comments in MZAFZ that s 357A(2) is no impediment to an argument that general law notions of procedural fairness might require the disclosure of a certificate: at [40]. 60 At [42] the Full Court identified why, when a certificate is issued, the general law notion of procedural fairness is enlivened within the scheme of the Act. Their Honours said: The effect of the certificate, if valid, is to require the Tribunal to conduct the review without disclosing the documents or information the subject of the certificate to an applicant. It is possible, as Wilcox J was inclined to think in Burton (at [40]), that the Tribunal may be able to provide particulars of the confidential material sufficient to satisfy the requirements of s 359A whilst not infringing those of s 375A. But even where this occurs, the fact remains that the extent of an applicant's participation in the review is circumscribed by the existence of the certificate which, even with particulars, denies access to relevant material. In that sense, the certificate has the immediate effect of diminishing an applicant's entitlement to participate fully in the review process. That is a sufficient interest to enliven an obligation of procedural fairness. 61 The Full Court in Singh expressly overruled Davis to the extent that it was authority for the proposition that the Tribunal does not ordinarily need to disclose a certificate to an applicant: at [58]-[59]. 62 The recent Full Court decisions in BJN16, CQZ15 and BEG15 each concerned whether the Tribunal had breached its procedural fairness obligations in circumstances where a s 438 certificate had not been disclosed to an applicant and whether evidence could be admitted for the purpose of establishing whether a denial of procedural fairness had occurred. It is not necessary to set out the particular circumstances of those cases in any detail. Relevantly, the Full Court considered whether the non-disclosure by the Tribunal of a s 438 certificate must necessarily lead to a finding of denial of procedural fairness. At [68]-[69] of CQZ15 their Honours said: 68 It may be accepted that the non-disclosure by the Tribunal of the existence of a notification under s 438(2) of the Act may give rise to a denial of procedural fairness, as decided in MZAFZ. The Minister did not contend to the contrary. It does not, however, follow that the non-disclosure of such a notification will always give rise to a denial of procedural fairness. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the non-disclosure to be examined. 69 If, as the Minister contended, the contents of documents covered by the certificate or the notification in this case were found on inspection to be incapable of having any bearing on the decision of the Tribunal, then one would likely conclude that the non-disclosure of the certificate and the notification could not have deprived the applicant before the Tribunal of an opportunity to advance his or her case. This would be the case, whether or not the certificate or the notification was valid. 63 At [72]-[73] their Honours went on to say: 72 … Whilst acknowledging that he might confront considerable forensic difficulties in establishing that the exception applied in a given case, the Minister argued that their Honours had left open the possibility that it could be established, in a case such as the present, that the documents contained material that, on no view, could be thought to have prejudiced the interests of the applicant and could not and did not, even possibly, undermine the applicant's prospects of a favourable decision by the Tribunal. We accept the Minister's submissions in this regard. 73 It would not be necessary, in such a case, for the reviewing court to speculate as to what the applicant might or might not have done had he or she known about the contents of the documents before appearing at the Tribunal. What the reviewing court would have to determine was whether the documents contained material which negatived the suggestion that the non-disclosure deprived the applicant of the possibility of a successful outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 (Mason, Wilson, Brennan, Deane and Dawson JJ); see also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609; 81 ALJR 1190 at [29], [85]. 64 After considering several decisions of the Federal Circuit Court and two decisions in this Court, their Honours noted that each decision turned on its particular facts and circumstances: at [85]. At [87] their Honours further observed: It will, perhaps, be an unusual case in which the reviewing court will be satisfied that the contents of the documents the subject of a s 438 notification, although relevant, can have had no bearing on the outcome of the Tribunal's decision. Nevertheless the possibility that such cases may exist cannot be foreclosed. 65 The Full Court made similar observations in the course of its reasons in BJN16 and BEG15: see, in particular, BJN16 at [63] and BEG15 at [30].

Consideration 66 The appellant's application before the primary judge was for relief under s 39B of the Judiciary Act in relation to the decision of the Federal Circuit Court which, in turn, had refused the appellant's application to extend time pursuant to s 477(2) of the Act to bring an application for review of the Tribunal's decision. As the primary judge observed at [3] of SZVDC, because of the limited nature of the application before him, its success depended on the appellant demonstrating jurisdictional error on the part of the Federal Circuit Court as opposed to showing jurisdictional error on the part of the Tribunal, as might be sufficient for an appeal. 67 The appellant's argument seeks to establish jurisdictional error in the Federal Circuit Court's decision because he was denied the opportunity to raise an argument based on the non-disclosure of the Certificate. The appellant submitted that it is not the role of this Court to determine whether there was in fact jurisdictional error in the process of the Tribunal but to determine whether there was a case arguable before the Federal Circuit Court sufficient to support an extension of time under s 477(2) of the Act. He contended that if he was denied the opportunity to put an arguable case sufficient to support an extension of time then he was denied procedural fairness in the application before the Federal Circuit Court. 68 The appellant accepted that he could not challenge the validity of the Certificate. But, relying on MZAFZ, the appellant submitted that, without knowledge of the Certificate, he had no opportunity to make an inquiry as to what use, if any, the Tribunal would make of the material covered by the Certificate and no opportunity to make submissions to the Tribunal that such information or material should be provided to him pursuant to s 438(3)(b). He also submitted that knowledge of the Certificate may have informed his decision about whether or not to attend the Tribunal hearing. 69 The appellant's argument is essentially that, had he known about the Certificate when his application for an extension of time was before the Federal Circuit Court, he would have argued that there was jurisdictional error in the decision of the Tribunal because he had not been made aware of the existence of the Certificate by the Tribunal and was thus denied procedural fairness by the Tribunal. In our opinion, the appellant cannot succeed on this issue because the alleged loss of an opportunity to raise an argument based on the Certificate does not amount to jurisdictional error on the part of the Federal Circuit Court. 70 The Certificate was not before the Federal Circuit Court. The chronology of events shows that the Federal Circuit Court proceeding took place in 2015, prior to the judgment in MZAFZ, at a time when Davis had not been overturned. The Federal Circuit Court had before it a bundle of documents which had been prepared by the Minister in accordance with that court's procedures and the law at the time. That is, the bundle of documents did not include the Certificate, but did include the documents that recorded the "dob-in" information; the request to the Department's embassy in Cairo to make inquiries about the veracity of the death certificate provided by the appellant and call the telephone number provided to check if the appellant's father was still alive; and the report of the conversation with the person who was said to be the appellant's father. 71 The appellant's application for an extension of time proceeded to hearing. The Federal Circuit Court applied the test for an extension of time under s 477(2) of the Act and determined the application according to the law as it stood at the time. 72 There was nothing in the procedure adopted by the Federal Circuit Court that could be said to give rise to a jurisdictional error. The Federal Circuit Court dealt with the application before it, namely, whether there should be an order made pursuant to s 477(2) of the Act to extend the time to allow the appellant to file an application for judicial review of the Tribunal's decision. It did so by applying the principles relevant to the determination of such an application and the law at the time, which did not require that the Certificate be disclosed, and by considering the issues that were raised by the appellant and the evidence that was before it. The primary judge found that there was no jurisdictional error on the part of the Federal Circuit Court. He was correct to do so. 73 The jurisdictional error that is alleged by the appellant to arise in the Federal Circuit Court's decision is that he was denied the opportunity to advance an argument. He says that that argument could have supported a "reasonably arguable" or "sufficiently arguable" case that the Tribunal's decision was affected by jurisdictional error and could have justified an extension of time pursuant to s 477(2) of the Act. But even if that were the case, that denial of opportunity does not amount to a jurisdictional error. The Federal Circuit Court did not make a decision that it had no power to make; it did not do something that it had no authority to do; nor did it misconstrue a statute or other instrument and thus misconceive the nature of its functions or exceed its powers. 74 On the contrary, the Federal Circuit Court determined questions of fact and law that it was obliged to determine. That the law applied by the Federal Circuit Court subsequently changed, such that an additional argument may have been available to the appellant, does not mean that the Federal Circuit Court's conduct of the proceeding before it was affected by jurisdictional error on its part, in particular, in the form of a denial of procedural fairness. 75 If we are wrong about that then, in any event, in the particular circumstances of this case there can be no relevant procedural unfairness on the part of the Tribunal as alleged by the appellant. 76 The appellant declined to attend the hearing before the Tribunal. He did so in circumstances where: (1) he had a received an invitation from the Tribunal to appear before it and give evidence and present arguments relating to the issues in his case; (2) the invitation from the Tribunal stated, among other things, that "[t]he Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone"; (3) the material before the Tribunal included the delegate's decision, which the appellant had provided to the Tribunal with his application. The delegate's decision included the matters set out at [11] above, which clearly described the information the Department had received about the appellant's father, in particular, that the appellant's father was still alive and that the death certificate provided by the appellant was fraudulent; and the results of inquiries made by the Department through its embassy in Cairo. Because the appellant provided the delegate's decision to the Tribunal, by operation of s 424A(3)(b) of the Act, there was no obligation on the part of the Tribunal to comply with s 424A(1) in relation to the information in the delegate's decision: see Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [16]-[22]; and (4) the appellant's representative informed the Tribunal that it could proceed to make its decision on the papers. 77 That is, the appellant elected not to attend the Tribunal hearing in the knowledge that the Department had received information that undermined the veracity of his claim that his father was dead and aware that the delegate's decision dealt with that issue adversely to him. He knew enough about the issues and the adverse information, which was, in substance, addressed in the documents the subject of the Certificate, to make an informed decision about his attendance at the Tribunal hearing. The Minister's reliance on S58 at [25] is apt. There the Full Court (Ryan, Merkel and Conti JJ) said: [W]hether an applicant has been accorded procedural fairness is not to be decided on a minute or fragmented examination of each step of the process by which a tribunal has arrived at its decision. In the present case, the appellant was fully aware that the success of his application depended on an affirmative finding that he had a well-founded fear of persecution for a Convention reason if he were returned to Bangladesh. He was given an invitation to attend a hearing before the Refugee Review Tribunal (the tribunal) which, apparently on advice, he deliberately declined. Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the tribunal without his having an opportunity to explain or clarify them. Conversely, his conduct left it open to the tribunal to infer that, had he attended a hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa. 78 The very same can be said here. The appellant was given an opportunity to attend a hearing in circumstances where he knew that the Tribunal could not reach a favourable decision on the information before it. He declined that invitation and did so at a time when he was represented by a solicitor. In doing so, he should be taken to have assumed the same risk as was identified in S58, namely, a risk that "inconsistencies, omissions or other unsatisfactory features" of his material would be noted by the Tribunal without his having an opportunity to explain or clarify them. That in fact is what occurred. 79 The relevant authorities do not indicate when the Tribunal is obliged to inform an applicant about the existence of a certificate issued pursuant to s 438(1) of the Act. Presumably it would need to be at a stage in the Tribunal's review that would fairly enable an applicant to consider its validity and make submissions, as contemplated by the Court in MZAFZ, concerning the use to which the material the subject of the Certificate will be put and the exercise of the discretion in s 438(3)(b) of the Act. Here the appellant notified the Tribunal that he would not attend the hearing and that it should determine his application on the papers. In the circumstances, given what the appellant knew and his decision not to attend the hearing before the Tribunal, the appellant must be taken to have waived any right he might otherwise have had to be informed by the Tribunal about the Certificate. To say that knowledge of existence of the Certificate may have caused the appellant to take a different approach to his attendance at the hearing is speculative at best. 80 Further, even if the appellant had attended the Tribunal hearing, it appears that the adverse information, albeit redacted in part, was in the court book before the Federal Circuit Court. The court book included the documents that were relevant to the Tribunal's decision the subject of the application before that court. As identified by the primary judge, the appellant was thus able to address the material: see SZVDC at [11]-[12].

The second issue - fraud on the court 81 By this ground, which was raised in the alternative, the appellant alleges that the proceeding in the Federal Circuit Court was affected by jurisdictional error by reason of a fraud on the court in that the failure of the Minister to provide the Certificate to the court disabled it from performing its supervisory function as envisaged by the Act.

Parties' submissions 82 The appellant submitted that the Federal Circuit Court has jurisdiction under s 476 of the Act to review relevant migration decisions for jurisdictional error and to grant any of the remedies that the High Court is able to grant under s 75(v) of the Constitution. He further submitted that the Court performs the essential constitutional function of providing an opportunity for persons aggrieved by specified migration decisions to challenge the lawfulness of those decisions, relying on SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 at [57]. 83 The appellant submitted that a similar approach to that set out in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE) in relation to a third party's fraud in the context of a proceeding before the RRT would be adopted in considering whether a judgment of the Federal Circuit Court is liable to be set aside by reason of fraud on that court. He submitted that the High Court in SZFDE noted at [13] that principles of public law concerning impropriety in the exercise of statutory powers have not had the focus upon what might be called the "red blooded" species of fraud which engages the common law. 84 The appellant also referred to the decision of French J, as his Honour then was, in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 (SZFDE FFC), where his Honour said at [122]: Fraud and "analogous circumstances" will justify the grant of certiorari if they "distort" or "vitiate" the statutory process leading to the impugned decision to such an extent that it can be said that the decision was induced or affected by that fraud or those circumstances. 85 The appellant contended that the term "fraud" in this context is used in a broad sense and that actual fraud or dishonesty is not required. The appellant accepted that there was nothing to suggest a deliberate or dishonest failure to disclose the Certificate in the Federal Circuit Court proceeding and that the subsequent disclosure before the primary judge would suggest to the contrary. However, the appellant further submitted that the consequence of non-disclosure of the Certificate before the Federal Circuit Court was that its review was unable to properly examine the lawfulness of the decision of the Tribunal and that its decision was affected by the circumstance that the Certificate was not before it. 86 The Minister submitted that he had not engaged in any wrongdoing that could attract the doctrine of fraud. He further submitted that, at the time he prepared and relied upon the court book, the binding authority on the Federal Circuit Court was that the Certificate was not relevant and that, because all of the relevant documents caught by the Certificate were in the court book, the Certificate is still not relevant.

Consideration 87 In SZFDE the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) considered whether a decision of the RRT was affected by the fraud of the appellants' advisor, Mr Hussain, who had represented to the appellants that he was a solicitor and a licensed migration agent despite having had his practising certificate and his migration agent registration cancelled prior to the RRT hearing. Mr Hussain had advised the first appellant not to attend the RRT hearing. At [45] the High Court observed that "neither the reasons of the Federal Magistrate nor the dissenting reasons of French J in the Full Court considered in any detail the question of the motives of Mr Hussain in acting as he did with respect to the rejection of the invitation to attend the Tribunal hearing". 88 At [47] the High Court noted that French J had correctly identified "the ultimate issue as the effect upon the Tribunal's decision-making process, for which the Parliament provided in Pt 7 of the Act, of the fraud of Mr Hussain". Their Honours held at [49] that Mr Hussain's fraud had the immediate consequence of "stultifying the operation of the legislative scheme to afford natural justice to the appellants". The High Court concluded at [52]-[53]: 52 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. 53 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. (footnotes omitted) 89 The appellant relies on the dissenting judgment of French J in SZFDE FFC at [122], where his Honour made the comments referred to at [84] above, but it is instructive to set out his Honour's comments at [122] in full: Fraud and "analogous circumstances" will justify the grant of certiorari if they "distort" or "vitiate" the statutory process leading to the impugned decision to such an extent that it can be said that the decision was induced or affected by that fraud or those circumstances. There was support for that approach in Barrett. The distortion can occur in more than one way. A decision-maker may be misled by false material dishonestly put before it. Relevant material favourable to a person to be affected by the decision may be deliberately and dishonestly withheld by a third party who would reasonably be expected to disclose it either in the discharge of a statutory duty or by reason of that party's official responsibilities in the administration of the decision-making process. In either case the decision-making process can be said to have been distorted by fraud in a way that induced or affected the decision. The English authorities would support an extension of that proposition to a class of case involving the tender of misleading material or the non-disclosure of favourable material even though no dishonesty was involved. 90 While the High Court in SZFDE upheld French J's conclusion in SZFDE FFC that there had been a fraud on the RRT by Mr Hussain because the immediate consequence of his conduct was to stultify the operation of the legislative scheme to afford natural justice to the appellants, it noted that the outcome of the appeal stood apart from and above considerations such as negligent advice or other mishaps that might affect the conduct of a proceeding before a tribunal. 91 An issue arises as to whether and, if so, to what extent the reasoning in SZFDE, which concerned fraud causing stultification to the natural justice provisions governing the conduct of the RRT's decision-making process, would apply to the Federal Circuit Court. Unlike the RRT in SZFDE, the conduct and exercise of the Federal Circuit Court's jurisdiction is not prescribed by a statutory regime but is governed by the broader notions of procedural fairness that apply to courts generally. However, it is not necessary to determine that issue in the context of this appeal because, on any view of the facts of this case, there could be no fraud on the Federal Circuit Court. The ultimate issue must be the effect upon the Federal Circuit Court's decision-making process of the alleged fraud. 92 The failure of the Minister to provide the Certificate to the Federal Circuit Court at a time when it was not relevant or required to be provided by the then binding authority of Davis could not affect the procedural fairness afforded to the appellant in that court, nor could it otherwise have meaningfully affected the Federal Circuit Court's decision-making process. The Federal Circuit Court had in place a procedure, which it and the Minister followed, by which the Minister was required to put before the court and provide to the appellant the documents that were relevant to the appellant's application. The non-disclosure was not only innocent but was made at a time when there was no obligation on the Minister to provide the Certificate. 93 In those circumstances it cannot be said that there was any fraud on the Federal Circuit Court. The alleged fraud could not have had any impact on the Federal Circuit Court's decision-making process and it was not disabled from carrying out its statutory functions under the Act.

The third issue - the conduct of the appellant's solicitor 94 The appellant alleged that the primary judge erred in failing to find that the Federal Circuit Court's decision was affected by jurisdictional error by reason of that court's treatment of the appellant's claim to have been deceived by his lawyer.

Parties' submissions 95 The appellant submitted that jurisdictional error may be established and a decision liable to be set aside if the decision is induced or affected by the fraud of a third party, including an applicant's representative or agent, but accepted that ordinarily a failure to inform an applicant of some matter or bare negligence or inadvertence on the part of the third party will not give rise to fraud on the tribunal. 96 The appellant submitted that the complaint he made at the hearing before the Federal Circuit Court was not answered simply by an assertion that he had signed a document authorising his solicitor to request that a decision be made on the papers. The appellant further submitted that, if he was deceived by his representative or was the victim of fraudulent advice, the decision of the Tribunal was nonetheless liable to be set aside by reason of the interference in the processes of the Tribunal. The appellant submitted that the fraud on the RRT in SZFDE was constituted by a migration agent advising the family not to attend the RRT hearing. 97 The appellant contended that, by dealing with his complaint in relation to his lawyer's conduct simply by reference to the fact that he had signed the authorisation document, the Federal Circuit Court failed to address his complaint or asked itself the wrong question in considering whether there was an arguable case of any fraud by his lawyer. The appellant further contended that the primary judge erred by failing to find that the Federal Circuit Court thereby fell into jurisdictional error. 98 The Minister submitted that this ground failed at the factual level and that the Federal Circuit Court evaluated the claim of fraud and held that it was unarguable. He further submitted that the Federal Circuit Court's conclusion was open on the evidence before it. The Minister identified that evidence as being that the appellant knew about the Tribunal hearing because he had signed the authority on 15 January 2014 and had rung the Tribunal two days earlier, saying that he was sick and seeking an adjournment of the first scheduled hearing; that the appellant's new lawyer had been appointed on or about the day the appellant signed the authority and, accordingly, there could be little or no motivation for any fraud; and that, given the forensic difficulties facing the appellant in relation to his claims of his father's death and more generally, as detailed by the delegate, his new lawyer's advice was well within the range of possible advice that could have been given to the appellant. 99 The Minister submitted that the primary judge did not err in his conclusion that the Federal Circuit Court had not erred in its consideration of this ground. He further submitted that, in any event, any error by a judicial officer in evaluating evidence is not a jurisdictional error of "failing to address the appellant's complaint and/or ask[ing] itself the wrong question" as alleged by the appellant.

Consideration 100 There was no error in the decision of the primary judge in failing to find that the Federal Circuit Court's decision was affected by jurisdictional error by reason of that court's treatment of the appellant's claim to have been deceived by his lawyer. 101 The Federal Circuit Court considered the evidence before it, noting at [18] of its reasons that the appellant complained that his lawyer failed to advise him about the evidence he should give to the Tribunal and failed to inform him of any hearing before the Tribunal. It further noted that the appellant nonetheless acknowledged that he signed a document that authorised his lawyer to request that the Tribunal decide his application on the papers before it. 102 A finding of fraud is a serious matter which must be distinctly pleaded and proved: SZFDE at [15]. To constitute jurisdictional error, the alleged conduct must amount to fraud on the Tribunal and bad or negligent advice from a lawyer or migration agent will not be sufficient: SZFDE at [53]. In our opinion, the appellant did not discharge his onus of proof. The evidence before the Federal Circuit Court was insufficient to permit the court to reach the necessary standard of satisfaction that there was an arguable case of fraud on the Tribunal and the conclusion that the court reached was open on the evidence before it. 103 The primary judge concluded that no error had been established on the part of the Federal Circuit Court. He was right to do so. The primary judge considered the allegation as it was raised before the Federal Circuit Court and the reasoning of the Federal Circuit Court. His Honour noted that the same admission as was made in the Federal Circuit Court, that is, that the appellant had signed the consent for the Tribunal to proceed on the papers, was made before him and concluded that there was no error in the reasoning of the Federal Circuit Court, let alone jurisdictional error. The primary judge rejected an argument raised by the appellant that he signed the consent without appreciating its significance on the basis that that argument had not been raised before the Federal Circuit Court and that it carried the hallmarks of recent invention. No error is apparent in the primary judge's approach in that regard.

conclusion 104 For those reasons the appeal should be dismissed and the appellant ordered to pay the Minister's costs. 105 Finally, although his arguments did not ultimately prevail, we wish to record our gratitude to Mr Gibian of counsel who appeared pro bono for the appellant and whose submissions were of considerable assistance. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis, Logan and Markovic.

Migration Act 1958(Cth)ss 438, 477(2)

THE COURT: 1 This is an appeal from orders dismissing an application for relief under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) in relation to a decision of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 3 September 2015 refusing an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act): SZVDC v Minister for Immigration and Border Protection [2016] FCA 1382 (SZVDC).

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