FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v SZFDE

[2006] FCAFC 142

MIGRATION – judicial review – procedural fairness – fraud – protection visa – application to Refugee Review Tribunal – invitation to attend oral hearing – fraudulent advice from migration agent that Tribunal would refuse application – advice that applicant should not attend hearing – applicant dissuaded by agent’s fraud from attending – whether procedural unfairness – effect of statutory provisions relating to invitation to appear and codification of natural justice hearing rule – whether apparent consent to non-appearance vitiated by fraud – whether Tribunal decision induced or affected by fraud

ADMINISTRATIVE LAW – judicial review – jurisdictional error – procedural fairness – fraud – circumstances analogous to fraud – decision induced or affected by fraud – decision-maker blameless – party induced by fraudulent advice of representative not to appear at hearing – whether certiorari would lie

Migration Act 1958 (Cth) ss 36(2), 65(1), 411(1)(c), 417, 420, 422B, 425, 425A, 426, 426A, 441A, 441C, 441G, and 474

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(g)

Taylor v Taylor (1979) 143 CLR 1 discussed

R v Secretary of State for the Home Department; Ex parte Al-Mehdawi [1990] 1 AC 876

discussed

Cameron v Cole (1944) 68 CLR 571 cited

Grimshaw v Dunbar [1953] 1 QB 408 cited

Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 cited

R v Leyland Justices, Ex parte Hawthorn [1979] QB 283 cited

R v Blundeston Prison Board of Visitors; Ex parte Fox-Taylor [1982] 1 All ER 646 cited

R v West Sussex Quarter Sessions; Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24 cited

R v Criminal Injuries Compensation Board; Ex parte A [1992] 2 AC 330 discussed

Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALR 129 cited

Transport Accident Commission v Bausch (1998) 4 VR 249 cited

Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 cited

SBA Foods Pty Ltd v Victorian WorkCover Authority [2001] VSC 276 cited

Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 cited

R v Gillyard [1848] 12 QB 527 cited

R v Recorder of Leicester, Ex parte Wood [1947] KB 726 cited

Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 211 CLR 441 cited

O’Sullivan v Repatriation Commission (2003) 128 FCR 590 cited

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 discussed

Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 cited

Applicant S296/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 cited

Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 cited

NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 cited

Chamberlain v The Queen (No 2) (1983) 72 FLR 1 cited

Nguyen v Nguyen (1990) 169 CLR 245 cited

Transurban City Rail v Allan (1999) 95 FCR 553 cited

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 cited

Clements v Independent Indigenous Advisory Authority (2003) 131 FCR 28 cited

Freeman v Health Insurance Commission (2004) 141 FCR 129 cited

B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 discussed

VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 cited

SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 cited

Zhang de Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 cited

Philipson v The Earl of Egremont [1844] 6 QB 601 cited

R v Wolverhampton Crown Court, Ex parte Crofts [1982] 1 WLR 204 cited

Lazarus Estates Ltd v Beasley [1956] 1 QB 702 discussed

Knightsbridge Crown Corp; Ex parte Goonatilleke [1986] 1 QB 1 cited

R v Bolton Justices, Ex parte Scally [1991] 1 QB 537 cited

Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 cited

Jones v Commissioner of Police (1990) 20 ALD 532 cited

Transport Accident Commission v Dohnal (1996) 10 MVR 232 cited

Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 37 FCR 234 cited

Glennan v Commissioner of Taxation (2003) 198 ALR 250 cited

Colonial Bank of Australasia v Willan [1874] LR 5 PC 457 cited

Hallahan v Campbell, Ex parte Campbell (No 2) [1964] Qd R 337 cited

R v Deyland, Ex parte Willie (1996) 6 NTLR 72 cited

Craig v State of South Australia (1995) 184 CLR 163 cited

Kioa v West (1985) 159 CLR 550 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 discussed

Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387 discussed

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 cited

Potter v Minahan (1908) 7 CLR 277 cited

Bropho v Western Australia (1990) 171 CLR 1 cited

Coco v The Queen (1994) 179 CLR 427 cited

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 cited

Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 cited

NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 cited

SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 cited

WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 cited

Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 cited

MNM v The Secretary of State for the Home Department [2000] INLR 576 cited

Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 cited

De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 cited

Browne v Dunn (1894) 6 R 67 cited

SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 397 cited

Shocked v Goldschmidt [1998] 1 All ER 372 cited

Microsoft Corporation v Crosslink Marketing Group (CMG) Pty Limited [2005] FCA 1817 cited

Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 cited

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] 150 FCR 439 cited

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 cited

Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 cited

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited

Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 cited

NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 cited

W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 cited

Applicant VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100 cited

Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 cited

Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322 cited

E Campbell, Effect of Administrative Decisions Procured by Fraud or Misrepresentation, (1997) 5 AJAL 240-247

Gummow WMC Justice, The Constitution: Ultimate Foundation of Australian Law? (2005)79 ALJ 167

Aronson, Dyer and Groves, Judicial Review of Administrative Action, (3^rd ed, Thomson Law Book Co 2004)

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SZFDE, SZFDF, SZFDG and SZFDH and THE REFUGEE REVIEW TRIBUNAL

NSD 139 OF 2006

FRENCH, ALLSOP AND GRAHAM JJ

3 OCTOBER 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 3, 4 and 5 made on 20 December 2005 in the Federal Magistrates Court of Australia be set aside.

3. The application filed on 24 November 2004 in the Federal Magistrates Court of Australia be dismissed.

4. The First Respondents pay the Appellant’s costs of the appeal and of the proceedings in the Federal Magistrates Court of Australia.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

FRENCH J:

Introduction

1                     On 27 February 2002 a Lebanese family comprising husband and wife and two children arrived lawfully in Australia. They applied for protection visas which were refused by a delegate of the Minister for Immigration and Multicultural Affairs on 29 August 2002. Subsequently they applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision.

2                     The application for a protection visa for the family was based on the wife’s claim that she had a well-founded fear of persecution because of political opinions which she had expressed in Lebanon and because she was a member of a particular social group comprising Islamic women who were perceived as having transgressed the customs of Islamic society.

3                     The family had the misfortune to be introduced by a relative to a man who said he was a solicitor with a lot of experience in migration matters. They engaged him to represent them in their application for review by the Tribunal. Unknown to the family their agent had been struck off as a solicitor in December 2001and deregistered as a migration agent inMarch 2002. They paid him a total of $8,400 to act for them. He gave them advice which was not only bad but fraudulent. He told them that they should not accept an invitation to appear before the Tribunal at an oral hearing because their application would be refused. He said he was going to write a letter to the Minister and that he was worried that if they appeared before the Tribunal they would say something inconsistent with his letter. He told them not to worry that he was doing what was best for them.

4                     Despite their doubts about his advice, the family took it. The Tribunal refused their application for review noting that the wife had not appeared and that there were relevant matters it would have wished to explore with her.

5                     On a challenge to the Tribunal’s decision in the Federal Magistrates Court, Scarlett FM found that the family had been dissuaded from appearing by the fraud of the agent. His Honour quashed the Tribunal’s decision and remitted the matter for reconsideration by the Tribunal.

6                     The Minister now appeals against that decision. In my opinion, having regard to the legislative framework, the Magistrate’s orders could not be supported on the grounds of procedural unfairness. However, the process leading to the Tribunal’s decision was compromised by the fraud of the family’s agent. The apparent consent by SZFDE to have her application for review by the Tribunal decided without a hearing was not a genuine consent. It had been obtained by thatfraud. The Tribunal acted upon that apparent consent. Its decision was therefore affected by the fraud of the agent. On that basis I would dismiss the appeal. In this case however, Allsop and Graham JJ take a different view, and so the appeal will be allowed by majority.

Factual and procedural background leading to Tribunal decision

7                     The respondents who are designated SZFDE, SZFDF, SZFDG and SZFDH for the purpose of these proceedings, are husband and wife and their two children. They are citizens of Lebanon. The family arrived in Australia on 27 February 2002. They applied for protection visas on 23 March 2002. These were refused by a delegate of the Minister for Immigration and Multicultural Affairs on 29 August 2002. On 30 September 2002 the family applied to the Tribunal for a review of the delegate’s decision.

8                     The original application for protection visas for the family members was based upon a claim by the wife, SZFDE, that she had a well-founded fear of persecution on account of political opinions which she had expressed in Lebanon and because she was a member of a particular social group comprising ‘Islamic women who have transgressed the social mores of Islamic society’.

9                     SZFDE’s claims, as set out in an attachment to her application, may be summarised as follows. When she turned 17 she began to rebel against Islamic law and became sceptical of her parents’ beliefs. She rejected their religious customs. She wondered why she should believe in a religion which distinguished between male and female and which considered that men had rights and women had none. She considered Islam to be a male dominated religion which could not come from a God of infinite justice. Her husband held the same views and the same attitude towards Islam and human rights.

10                  One day SZFDE met a well known Christian Lebanese journalist who offered her the opportunity of employment with the Circles Newspaper as a production manager. While employed by the newspaper she wrote articles which reflected her opinion about Islamic rule. The newspaper was opposed to Islamic fundamentalists particularly those involved with the main fundamentalist party Altawheed. It published articles about the activities of Altawheed which included threatening restaurant owners to deter them from serving alcoholic drinks on their premises. Altawheed also purported to prohibit advertising showing women’s legs and destroyed signs in Tripoli with photographs of women on them.

11                  According to the first respondent the newspaper received threatening letters and telephone calls from Altawheed party members in Tripoli. Some of the letters were published. She claimed that the government could not do anything to protect them against such threats because it was unable to confront the Altawheed party.

12                  SZFDE said that, following the events of 11 September 2001 in New York, she regretted any involvement with Islam which she rejected. She made her feelings known to her family and her friends and in public. As a result she received threatening letters. She was publicly denounced in a mosque in Tripoli as a disbeliever who should be punished. She claimed to have received a death threat from a young man who was a member of the Altawheed party, sent to her house for that purpose. She said that there was a reasonable possibility that she would suffer persecution if she were to return to Lebanon. Her fears were based on the treatment of persons similarly situated.

13                  The application for the protection visa was forwarded on behalf of SZFDE by a migration agent. It identified the relevant Convention grounds thus:

‘1. Membership of a political social group, ie Lebanese women who have transgressed the social mores of Islamic society.

2. Imputed political opinion – opposed to the Al-Tawheed Islamic Party; and

3. Religion – because of her failure to comply with the Islamic principles.’

The migration agent had an address in Marrickville.SZFDE had an address at Sefton in New South Wales which was disclosed in Part C of the application form. In answer to standard questions on the form SZFDE indicated that, if called for an interview, she would need an interpreter in the Arabic language. She also indicated that she spoke French.

14                  SZFDE’s application was acknowledged by a letter from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) dated 25 March 2002 and addressed to her at the address of her then migration agent. On 25 March 2002 she returned to DIMIA completed forms in relation to herself, her husband and her children (the second to fourth named respondents). The forms were applications for protection visas for the children as members of her family unit and additional character declarations covering her and her husband.

15                  On 25 July 2002 DIMIA sent a letter to SZFDE (misdated 25 July 2001) referring to country information adverse to her claims and inviting her written responses. A written response was sent by her migration agent on 12 August 2002. The written responses related to the question whether the party known as Altawheed was a spent force in Lebanon, whether Islamic apostates were under threat of persecution in Lebanon and whether State protection was available against persecution.

16                  On 29 August 2002 DIMIA wrote to SZFDE at Sefton in New South Wales advising her that she had been refused a protection visa and that as a result her husband and children had also been refused protection visas.

17                  An application for a review of the delegate’s decision was lodged with the Tribunal on 30 September 2002. It disclosed SZFDE’s Sefton address. In section C of the form it identified her Authorised Recipient. This was in response to the form question:

‘Where do you want us to send correspondence about your application?’

The name of her Authorised Recipient was Fahmi Hussain of Bridgeport International. The address given was Level 25 Chifley Tower at the corner of Hunter and Philip Streets in Sydney. This section was signed by Mr Hussain. Section C also contained a statement that copies of all documents would also be sent to the first named respondent at her mailing address. Under the heading in Section D ‘Your reasons for making this application’ the words were printed:

‘Further submission in support of my appeal will follow.’

All of the lettering on the form seems to have been completed by the same person.

18                  SZFDE was sent an acknowledgment of her application by letter from the Tribunal dated 1 October 2002. It was sent to her Sefton address and copied to Mr Hussain. The letter contained, inter alia, the following:

‘What will the Tribunal do now?

We have asked the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to send us its file so that the Tribunal can review your application for a protection visa.

When we get your file, we will decide if we can consider your review application. If we can consider it, a Member of the Tribunal will look at the information you and DIMIA have given us and information about your country.

Will I be invited to a hearing at the Tribunal?

After looking at this information the Member may either:

. make a decision in your favour

. invite you to attend a hearing at the Tribunal

The Member may also:

. write to you for more information

. ask you to comment on information that the Tribunal has

What is a hearing and why is it important?

A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:

. what you tell the Member at the hearing

. information or documents you give the Tribunal

. information or documents you ask others to give the Tribunal

When and where will the hearing take place?

We will tell you the date and time of the hearing. Hearings can take place at the Tribunal’s offices in Sydney or Melbourne. We also arrange hearings using video or telephone links.’

The letter also indicated that she was expected to notify the Tribunal immediately if she changed her home address, her mailing address or telephone number or if there were any changes in the name or address of her Authorised Recipient.

19                  On 17 March 2003 the Tribunal sent SZFDE a letter advising that Mr Hussain was no longer registered as a migration agent with the Migration Agents Registration Authority. The Tribunal asked whether she had made any change or wished to make any change to her adviser and Authorised Recipient. She was invited to complete another form if she wished to nominate another Authorised Recipient and adviser. The letter then said:

‘If you do not respond to this letter, all correspondence will continue to be sent to your address as above.’

The letter was addressed to her at Sefton. However it was sent back to the Tribunal marked ‘Return to Sender’ on 20 March 2003.

20                  On 3 June 2003 the Tribunal sent a letter to SZFDE at the Sefton address inviting her to come to a hearing of the Tribunal to give oral evidence and to present argument in support of her claim. The hearing date nominated was Tuesday, 1 July 2003 at 11.30am. A location for the hearing was also given. A ‘Response to Hearing Invitation’ form was enclosed. She was asked to complete it and to tell the Tribunal whether she was coming to the hearing or not. The letter which was sent registered post was sent back to the Tribunal on 5 June 2003 marked ‘Return to Sender’.

21                  On 24 June 2003 SZFDE sent a note to the Tribunal of her new home address in Regents Park. A fax number and what appeared to be a mobile number were also given. She also gave an address for her legal representative whom she described as ‘My Solicitor Fahmi Hussain’ at Level 25, 2 Chifley Square, Sydney. The Tribunal acknowledged her change of address in a letter dated 27 June 2003. A copy was sent to Mr Hussain.

22                  On the same day the Tribunal wrote to SZFDE saying, inter alia:

‘On 3 June 2003 we sent you a letter inviting you to a hearing of the Tribunal. We have received no response from you. We have now found a more recent mailing address for you and are sending this letter to you at that address. Please tell us immediately you change any of your addresses.’

The Tribunal then advised, in the letter, that it had set a new date for the hearing. It said:

‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.’

SZFDE was again invited to come to the hearing to give oral evidence and present arguments in support of her claims. The time and date was 5 August 2003 at 10.00 am. An address for the hearing was also given. A copy of the letter was sent to Mr Hussain.

23                  On 29 July 2003 a ‘Response to Hearing Invitation’ was sent to the Tribunal. It was signed by SZFDE. It indicated that she did not want to come to the hearing. The name and address, which was given as the Regents Park address, was hand printed in a style similar to that used in the completion of the application to the Tribunal. However it was not in dispute that SZFDE’s signature appeared at the bottom of the form.

24                  On 13 August 2003 the Tribunal wrote to SZFDE at the Regents Park address advising that the decision relating to her case would be given on 2 September 2003. On that date she was advised by the Tribunal that it had decided that she was not entitled to a protection visa. A copy of the Tribunal’s decision and reasons for decision dated 11 August 2003 were attached.

The Tribunal’s reasons for decision

25                  The Tribunal referred to the relevant provisions of the Migration Act 1958 (Cth) (the Act) and the definition of ‘refugee’ under the 1951 Convention Relating to the Status of Refugees (the Convention) and the 1967 Protocol Relating to the Status of Refugees. It enunciated unexceptionally the key elements of the Convention definition of ‘refugee’ and their qualification, for the purposes of Australian law, by ss 91R and 91S of the Act.

26                  The Tribunal recited the fact of its invitation to the respondents sent on 3 June 2003 to give oral evidence and present arguments at a hearing on 5 August 2003. It recorded that on 30 July 2003 they advised the Tribunal that they did not wish to give oral evidence and would like it to proceed to make its decision ‘on the papers’. The Tribunal therefore determined the application on the evidence available to it.

27                  The Tribunal observed that only SZFDE had made specific claims under the Convention with her husband and children relying on their membership of her family to support their applications for protection visas.

28                  The Tribunal set out the essential claims relied upon by SZFDE which have already been summarised. It noted that the submission made on her behalf included copies of identity cards as proof of her occupation, passports for herself and the members of her family, employment certificates of competence, education certificates and various newspaper articles.

29                  The Tribunal referred to the letter sent to SZFDE on 25 July 2002 in which it set out information about Altawheed to the effect that it was a spent force, that Lebanese authorities had regained authority in Tripoli and that Lebanese citizens, since 1992, favoured unity over fundamentalism. It summarised SZFDE’s reply given on 12 August 2002.

30                  The Tribunal reviewed country information from the Department of Foreign Affairs and Trade (DFAT) Country Information Reports. A report dated 7 July 2000 stated that Syrian forces had broken up Altawheed and other extremist groups in a series of armed assaults from 1985. As a result most of Altawheed’s membership had dispersed. A person called Shaaban had claimed to represent the Altawheed Movement until his death in 1998. Lebanese security agents continued to investigate and infiltrate extremist groups. In 1997 security authorities attacked a building in Tripoli which was said to house a radio and television station associated with Altawheed. In December 1999 a military court sentenced to death five persons, alleged to have Altawheed affiliations, for grenade attacks on churches in Tripoli. The report stated that authorities continued to seek to interdict extremist/violent groups. Another report dated 1 February 2000 also mentioned clashes between the Lebanese Army and members of Altawheed.

31                  In relation to SZFDE’s conversion from Islam, the Tribunal referred to another DFAT country information report dated 3 April 2002. That information recorded that Lebanese citizens are not prevented under Lebanese civil or criminal law from converting between religions including converting from Islam to Christianity. The report stated that conversion does not attract official prosecution or persecution and is protected through registration under civil law. There are no articles in the Lebanese Criminal Code which apply criminal sanctions against a convert. The reporter however would not discount the strong likelihood that a convert in Lebanon’s highly confessionalised society would be subject to personal persecution from family members or other members of the sectarian community to which he/she formerly belonged. A convert would probably wish to seek refuge in suburbs occupied by the community of the newly adopted confessional group. The convert might also obtain assistance from local religious authorities or others.

32                  In the ‘Findings and Reasons’ section of its reasons for decision the Tribunal summarised SZFDE’s claims and said that they lacked detail and that it had wished to question her during a hearing in order to establish the relevant facts.

33                  The Tribunal referred to SZFDE’s claim that she had been outspoken about the activities of fundamentalist Islamists and that she had drawn close attention to herself from the Altawheed group. She claimed that she had been threatened by members of that group and that Lebanese authorities would not protect her from the threats and serious harm. The Tribunal said that the country information stated that the Lebanese authorities have ‘taken action against the Tawheed group in the past’ and that they continued to seek to interdict extremists/violent groups. It referred to country information about official action against fundamentalists.

34                  The Tribunal said (at 11):

‘The Tribunal wished to discuss this independent evidence with the applicant as it appears that the protection which will be available to the applicant if she returns to Lebanon now or in the foreseeable future.’ (sic)

35                  The Tribunal considered SZFDE’s claims that she would be considered an apostate because of her rejection of Islam. It cited the country information which said it is not illegal to convert to another religion but that within the Muslim community and Sharia law apostasy is punishable by death. SZFDE had not provided much detail and so it was not possible to establish the relevant facts. The Tribunal then said (at 11):

‘The Tribunal wished to question the applicant during a hearing in order to ascertain the relevant facts to ascertain the extent of the applicant’s rejection of her faith and the extent of her criticism of her faith.’

36                  The Tribunal also stated that it had wanted to question SZFDE further about her claim that members of her Mosque were aware of her rejection of Islam. It noted that nothing other than a warning had been given. It wanted to question her about this further in the light of its country information. The Tribunal said, towards the end of its reasons (at 11):

‘The applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.’

37                  In the event the Tribunal was not satisfied that SZFDE had a well-founded fear of persecution within the meaning of the Convention. It thereby affirmed the decision not to grant the protection visas.

The application for judicial review to the Federal Magistrates Court

38                  On 29 November 2004 each of the respondents filed an application in the Federal Magistrates Court under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of the Tribunal’s decision. They sought certiorari to quash the decision and orders in the nature of mandamus and prohibition. The single ground of their application was expressed thus:

‘The decision was affected by fraud, being the fraud of one Fahmi Hussain (Hussain).

Particulars

(a) Hussain represented himself to the applicants to be a solicitor and migration agent when he was not, and

(b) Hussain advised the applicants that it would be best for them not to attend a hearing before the second respondent, when Hussain knew that such advice was false and that a failure to attend a hearing would be fatal to the applicants’ application.’

39                  On 19 May 2005 his Honour Scarlett FM adjourned the application to 23 June 2005 for mention and directed that the respondents’ solicitors serve on Fahmi Hussain all affidavits filed on behalf of the respondents and the amended application together with a sealed copy of the order of 19 May. On 23 June 2005 the matter was adjourned for mention to 8 August 2005.

40                  A hearing took place on 19 September 2005 and on 20 December 2005 the learned Federal Magistrate made an order in the nature of certiorari to quash the decision of the Tribunal. An order in the nature of mandamus was also made requiring the Tribunal to review, according to law, the delegate’s decision of 29 August 2005 refusing protection visas sought by the respondents. The Minister filed an appeal against the decision of the Federal Magistrates Court on 31 January 2006 and an amended notice of appeal on 11 April 2006.

Evidence before the Federal Magistrates Court

41                  The Federal Magistrates Court had before it the Tribunal’s decision and the papers relevant to it. In addition, it received an affidavit sworn by SZFDE on 7 April 2005. In the affidavit she said that, prior to the date upon which her protection visa application was refused by the delegate, she had been telephoned by her cousin who said words to the following effect:

‘I want to introduce you to a person who can send you to a solicitor who is very good in refugee matters.’

She met a Mr Fouad El-Ashwah with her husband at the home of one of her cousins on the same night. In the course of that meeting Mr El-Ashwah told her that he would introduce her to a ‘very, very good solicitor’. That solicitor, he said, would get her permanent residence ‘with great ease’. He named the solicitor as Fahmi Hussain. SZFDE said she would meet him.

42                  On the day after her meeting with Mr El-Ashwah SZFDE met Mr Hussain. Thatmeeting took place on 27 July 2002. Mr Hussain was not an Arabic speaker. He spoke to her through Mr El-Ashwah. He told her he was a solicitor with a lot of experience in migration matters. He could take on her case and could do it in the proper way. He said he had a lot of similar cases and knew the appropriate documentation to lodge. He would need to study her case to decide which was the best way to proceed. He disparaged her current migration agent as ‘not the best migration agent’ and said he was approaching her case in ‘the wrong way’.

43                  Mr Hussain gave SZFDE a business card. It bore the heading ‘Dalton Legal’ above the words ‘Fahmi M Hussain SOLICITOR’. A mobile phone number was handwritten on it. SZFDE paid him the sum of $1,500 in advance for work she expected him to do. He wrote on the back of the card an acknowledgment of receipt of $1,500 on account of his professional fees. The acknowledgement was dated 27 July 2002. SZFDE said that she engaged Mr Hussain to act for her in her application to the Tribunal. When the application was lodged she was living at her Sefton address. She moved from that address ‘in late 2002’. At the time of that move she telephoned Mr Hussain and told him in English that she had moved to the new address in Regents Park, which she gave him.

44                  In the middle of 2003 SZFDE received a telephone call from Mr Hussain who told her that he had received a letter from the Tribunal. He said that they needed to talk about it. She and her husband then met Mr Hussain at their home which was then at another address in Regents Park. Mr El-Ashwah acted as an interpreter. She recalled seeing the letter of 3 June 2003 from the Tribunal at the meeting.

45                  Mr Hussain said it was best that she not go to the hearing at the Tribunal. She responded:

‘“Why, we need to tell my story. Are you sure its best not to go?” or words to that effect.’

He said words to the effect:

‘It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the RRT you will say something in contradiction to what I will write. Don’t worry. I’m doing what is best for you.’

SZFDE said her husband asked Mr Hussain on several occasions, ‘Are you sure its best not to go to the RRT?’. Mr Hussain answered each time. ‘“Trust me. It’s best not to go”, or words to that effect’. At the end of the meeting, which lasted about 1 ½ hours, she agreed not to attend the Tribunal hearing. She said in her affidavit that Mr Hussain was her solicitor and that she trusted him to do the best for her.

46                  SZFDE said she did not attend the Tribunal hearing. She paid Mr Hussain a total of $8,400 to act for her. In September 2003 he told her he was in financial difficulty and asked her to lend him $5,000 which she did. A few weeks later he asked her to lend him some more, but she refused and decided to seek advice elsewhere. She saw another solicitor in Parramatta who told her that her case was extremely difficult, that he could do nothing for her.

47                  It was only following the Tribunal rejection that she was told by Mr Dagnall of the Legal Aid Commission that she needed a migration agent to represent her at the Tribunal, that Mr Hussain’s registration as a migration agent had been cancelled in March 2002 and his solicitor’s practising certificate cancelled in December 2001.

48                  On 15 September 2003 Mr Hussain wrote a letter to the Minister in the name of SZFDE. A copy of the text of the letter was exhibited to her affidavit. It appeared, however, to be drafted in terms of a letter from her husband to the Minister. The request in the letter which was for a s 417 visa was rejected. A further request under that section was made by a friend of her husband on 8 July 2004 and yet another by Mr Dagnall on 15 September 2004. Mr Dagnall’s request was refused on 15 November 2004 and the request for the Minister to exercise her power to permit SZFDE to lodge a new application for a protection visa was rejected on 1 October 2004.

The reasons for decision of the Federal Magistrates Court

49                  Scarlett FM set out the procedural history already summarised. Herestated briefly the Tribunal’s conclusions and in particular its asserted wish to question SZFDE at the hearing in order to establish relevant facts.

50                  His Honourcharacterised the application before him as an unusual one relying, as it did, on an allegation of fraud. He directed, on 19 May 2005, that the respondents’ solicitor serve on Fahmi Hussain copies of all affidavits which had been filed on their behalf and a copy of their amended application. Those documents were to be served by 17 June 2005 and the proceedings were otherwise adjourned to 23 June 2005. Mr Hussain appeared on 23 June 2005. He was directed to file and serve a notice of address for service and the proceedings were further adjourned.

51                  On 8 August 2005 Mr Knaggs, a solicitor, appeared for Mr Hussain. The matter was then listed for final hearing on 19 September 2005. Neither Mr Hussain nor his solicitor appeared at the hearing of the application. Elizabeth Biok, a solicitor, swore in an affidavit dated 16 September 2005, which was before the Federal Magistrates Court, that she had spoken to Mr Knaggs that day about the service of two subpoenas, one to the Law Society of New South Wales and one to the Migration Agents Registration Authority. However Mr Knaggs told Ms Biok that he was no longer acting for Mr Hussain and had had no further instructions from him.

52                  Scarlett FM then referred to the affidavit evidence provided by SZFDE and her husband. He described the husband’s evidence as corroborating that of his wife and said (at [29]):

‘The applicants were cross-examined by counsel for the Respondent Minister, but were unshaken in their accounts. Both applicants impressed me favourably in their evidence. I observed them in the witness box and they appeared to me to be witnesses of truth. I accept their evidence.’

53                  SZFDE also tendered a copy of a letter dated 5 December 2001 from the Law Society of New South Wales showing that Mr Hussain’s practising certificate had been cancelled on that day. She tendered a letter from the Migration Agents Registration Authority dated 18 March 2002 showing that his registration as a migration agent had also cancelled.

54                  SZFDE and her family submitted to his Honour that Mr Hussain had induced her not to attend the hearing of the Tribunal because he did not wish his own actions to be exposed. They argued that he knew, or ought to have known, that her non-appearance at the hearing of the Tribunal would be fatal to her case. They submitted that in this respect Mr Hussain had acted fraudulently in advising them. He had represented that he was a solicitor after his practising certificate had been cancelled and after his registration as a migration agent had been cancelled.

55                  The Minister conceded in the Court below that Mr Hussain’s advice to the respondents was seriously deficient and probably either grossly negligent or given in bad faith. However it was the Minister’s submission that the circumstances of the case did not disclose any failure to provide procedural fairness to the respondents. The operation of the ‘natural justice hearing rule’ was limited by s 422 of the Act to the specific requirements set out in Div 4 of Pt 7 of the Act. The obligation to provide an oral hearing was confined to the duty in s 425 which is to invite an applicant to attend a hearing which would include providing a real opportunity to be heard. SZFDE was invited to attend but decided not to attend, thus there was no breach of s 425.

56                  The Minister submitted that the case could be distinguished from Taylor v Taylor (1979) 143 CLR 1 in which a party had failed to appear because of a misunderstanding by that party’s legal representative. In the Tribunal proceedings, SZFDE and her family chose, admittedly on bad advice, not to attend the hearing.

57                  The Minister contended that those cases in which superior courts had issued certiorari to quash orders of lower courts obtained by fraud did not, in Australia, appear to have extended beyond the criminal law. Those decisions were an aspect of the jurisdiction assumed by superior courts to correct ‘irregularities in the proceedings of inferior tribunals’. They were not cases where the grant of the remedy depended on the lower court or tribunal exceeding its jurisdiction or failing to exercise its jurisdiction. The jurisdiction of the Federal Magistrates Court was wholly statutory and the exclusion of certiorari from the list of remedies defining that original jurisdiction and that of the High Court under s 75(v) of the Constitution reflected the nature of the jurisdiction as one concerned with excess of power rather than procedural irregularity or error of law per se. It was submitted therefore that no remedy lay in the Federal Magistrates Court for irregularity in the procedures of the Tribunal falling short of jurisdictional error.

58                  The Minister cited R v Secretary of State for the Home Department; Ex parte Al-Mehdawi [1990] 1 AC 876, in which a party had been denied an opportunity to be heard because of the failure of his advisors to do what they were required to do. Reliance was placed on the statement of Lord Bridge of Harwich that a party who had lost the opportunity to have his case heard because of the default of his own advisors could not complain that he had been the victim of a procedural impropriety or that natural justice had been denied.

59                  Scarlett FM did not agree that he should follow the decision in Al-Mehdawi. He did not think it consistent with Taylor. He quoted a passage from the judgment of Gibbs J in which it was said (at 9):

‘… it is no answer to a party who asks the court to set aside an order made against him in his absence at a hearing of which he had no notice to tell him that he has a remedy against his solicitor. In such a case, assuming that there is a real question to be tried, justice requires that the order, having been made in breach of a fundamental principle of natural justice, should be set aside, and that the matter should be reconsidered on its merits.’

60                  His Honouraccepted that the respondents were aware of the invitation to the hearing but found that they ‘... were dissuaded from attending by the fraudulent behaviour...’. He found that Mr Hussain’s actions had deprived the invitation to the hearing of its quality of being a meaningful invitation under s 425. His Honourattached some significance to the Tribunal’s knowledge that Mr Hussain was no longer registered as a migration agent and that SZFDE had not received its letter of 17 March 2003. That letter was returned unclaimed to the Tribunal. His Honoursaid (at [52]):

‘It was not open to the Tribunal to assume that no response meant that the applicants were aware of the status of Mr Hussain but did not wish to change their adviser or authorised recipient. On the contrary, they had proof that the applicants were not aware of that fact.’

He held that the Tribunal had erred in sending out the letter advising the respondents to attend the hearing. It had sent the letter to two addresses, firstly their old address from which its previous letter had been returned unclaimed, and secondly the address of Mr Hussain.

61                  On 24 June 2003 the Tribunal had received a change of address notification giving a change of home address and identifying Mr Hussain as the respondents’ solicitor. This document was typed but unsigned. His Honour found that this communication placed the Tribunal ‘on notice’ that Mr Hussain was apparently in practice as a solicitor although his practising certificate had been cancelled in 2001 and his registration as a migration agent had been cancelled in 2002. The fact that the Tribunal continued to forward correspondence to him knowing that his registration had been cancelled was, in the mind of the learned Magistrate (at [56]):

‘... sufficient to taint the proceedings before the Tribunal to such an extent as to constitute jurisdictional error.’

The learned Magistrate held that if the Tribunal becomes aware that a migration agent has had his or her registration cancelled, it should not continue to communicate with an applicant through that former agent. In the event nothing turns on that finding for the purposes of the outcome of this appeal. For the reasons that follow it is sufficient that he found SZFDE and her family were dissuaded from attending the hearing by the fraudulent behaviour of the agent.

62                  Oddly, the last paragraph of the learned Magistrate’s reasons read as follows (at [58]):

‘The application will be dismissed’.

In fact the formal orders made reflected the reasons, quashed the decision of the Tribunal and remitted the matter to the Tribunal to be dealt with according to law.

The Orders of the Federal Magistrates Court

63                  The orders made by the Federal Magistrates Court on 20 December 2005 were as follows:

‘1. That the Refugee Review Tribunal is joined as Second Respondent to the application.

2. That Applicant SZFDF is appointed litigation guardian of Applicants SZFDG and SZFDH.

3. That there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 August 2003.

4. That there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister on 29 August 2002 to refuse protection visas sought by the Applicants.

5. That the First Respondent is to pay the Applicants’ costs.’

The Grounds of Appeal

64                  The grounds of appeal as set out in a further amended notice of appeal filed by the Minister on 26 April 2006 were in the following terms:

1 The Federal Magistrate erred by not concluding that there was no jurisdictional error vitiating the Refugee Review Tribunal’s decision in that the circumstances of the applicants’ cases did not disclose any failure to provide procedural fairness to the Applicant.

2 The Federal Magistrate erred by not concluding that the operation of the “natural justice hearing rule” was limited, by s 422B of the Migration Act 1958, to the specific requirements set out in provisions of Division 4 of Part 7.

2.1 The obligation to provide an oral hearing was therefore confined to the duty provided for in s 425, to invite the Applicant to attend a hearing.

2.2 In the alternative, even if the general law principles of natural justice applied, the Federal Magistrate erred by not concluding that the Applicant chose (albeit on bad advice) not to take up the opportunity to attend a hearing.

3 The Federal Magistrate erred by not concluding that the jurisdiction of this Court is one concerned with excess of power, rather than procedural irregularity. In particular:

3.1 Certiorari to quash orders of lower courts (where those orders have been obtained by fraud and an appeal does not lie) are an aspect of the jurisdiction assumed by superior courts to correct “irregularities in the proceedings of inferior tribunals”.

3.2 The jurisdiction of the Federal Magistrates Court, being wholly statutory, extends only to granting certiorari as an ancillary remedy where a case is established for the issue of one of the “constitutional writs”, but not to cases in which certiorari is the only remedy sought.

3.3 No remedy lies in this Court for irregularity in the procedures of the Tribunal which fall short of jurisdictional error.

4 The Tribunal was authorised to proceed as it did by sections 425(2), 425(3), 426A, 441A and 441G:

4.1 Contrary to his Honours (sic) findings, the Tribunal was entitled to send the hearing invitations addressed as they were and there was no jurisdictional error by the Tribunal in so doing;

4.2 Contrary to his Honours (sic) findings, the actions of Mr Hussein (sic) did not deprive the hearing invitation of its quality being a meaningful invitation under section 425;

4.3 Contrary to his Honours (sic) findings, the Tribunal entitlement to proceed as it did was not affected by the Tribunal’s knowledge that Mr Hussein (sic) was no longer registered as a migration agent, or its knowledge that the respondent’s (sic) had not received the letter dated 20 March 2003.’

Statutory framework – The Tribunal’s review function

65                  Part 7 of the Act is entitled ‘Review of Protection Visa Decisions’. Section 411 sets out the classes of decisions which are reviewable by the Tribunal. These include ‘... a decision to refuse to grant a protection visa’ (s 411(1)(c)). Section 412 provides for applications to be made for review of an ‘RRT-reviewable decision’. Such applications are to be made in the approved form, given to the Tribunal within the prescribed period, not later than 28 days after the notification of the decision, and accompanied by the prescribed fee (s 412(1)).

66                  Section 414 establishes what might be regarded as the core obligation of the Tribunal thus:

‘(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).’

67                  The powers of the Tribunal on a review are set out in s 415. It may exercise all the powers and discretions conferred by the Act on the person who made the decision under review (s 415(1)). It may affirm or vary the decision or, in certain cases, remit it for reconsideration with directions or recommendations permitted by the Regulations or it may set the decision aside and substitute a new one.

Statutory framework – natural justice and the operation of the Tribunal

68                  Division 3 of Part 7 is entitled ‘Exercise of Refugee Review Tribunal’s Powers’. Section 420 prescribes the way in which the Tribunal is to operate:

‘(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.’

69                  Division 4 of Part 7 deals with the conduct of the review. Section 422B provides:

‘Exhaustive statement of natural justice hearing rule.

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’

Statutory framework - the invitation to a hearing

70                  Section 424 authorises the Tribunal to obtain any information which it considers relevant and invite a person to give additional information. The Tribunal is required, under s 424A, to provide to the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal must also ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review and invite the applicant to comment on it. Importantly for present purposes are ss 425 and 426A. Section 425 provides:

‘(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.’

Section 426A provides:

‘(1) If the applicant:

(a) is invited under section 425 to appear before the Tribunal; and

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

The Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.’

Statutory framework – the privative clause

71                  Section 474 of the Act provides, inter alia:

 (1) A privative clause decision:

 (a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).’

Subsections (3) to (5) are not material for present purposes.

The finding of fraud in the Court below

72                  It is necessary in this case to focus upon the precise basis upon which the learned Magistrate set aside the Tribunal’s decision and the basis upon which his judgment is challenged.

73                  It was not in dispute before the learned Magistrate or in this Court that SZFDE received an invitation from the Tribunal to attend an oral hearing in relation to her application for review. Nor was it in dispute that she signed a form provided by the Tribunal which indicated that she did not wish to come to the hearing. It is also clear that by not attending before the Tribunal she lost the opportunity to explore her claims further with the Tribunal and that, from the Tribunal’s perspective, relevant questions remained unanswered.

74                  The learned Magistrate found that SZFDE and her family were dissuaded from attending the hearing because of ‘the fraudulent behaviour of Mr Hussain’. The learned Magistrate did not, at that point in his reasoning, expressly identify the fraudulent behaviour which had that effect. However, he had earlier generally accepted SZFDE’s evidence which included her evidence that Mr Hussain told her that it was best that she not attend the Tribunal hearing and that if she went they would refuse her. The finding that the agent’s fraudulent behaviour dissuaded SZFDE from attending the hearing could only have rested upon his view that the advice the agent gave was dishonest in the sense that he did not honestly hold the belief that the Tribunal would necessarily so act. It is unfortunate that in this important respect the learned Magistrate did not spell out his findings of fact clearly. The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings.

75                  The only ground of review before the learned Magistrate was that the decision of the Tribunal was ‘affected by fraud’. No error of any kind on the part of the Tribunal was alleged. The question was whether the fraud which the learned Magistrate found to have occurred vitiated the decision of the Tribunal. It was not framed in terms of a failure of procedural fairness although it appears from His Honour’s reasons for judgment that such a failure was propounded as a consequence of the agent’s fraud. It is helpful therefore to consider and to identify the effects on administrative decision making of procedural fairness for which the decision-maker is not responsible and of fraud inducing or affecting the decision. The case law, particularly the English authorities, discloses an overlap between the two areas. Importantly it supports a general proposition that a decision may be affected by jurisdictional error, in the sense that it is beyond power, even though the decision-maker was not at fault. That proposition applies to the particular case of third party fraud affecting or inducing an administrative decision.

Procedural unfairness not attributable to a decision-maker

76                  Procedural fairness lies at the heart of administrative justice. It is a long standing requirement of the common law and reflects, in this country as in other common law jurisdictions, ordinary concepts of justice. It is often regarded as an implication, albeit judge-made, in the grant of statutory power to make decisions affecting the interests of individuals, unless excluded expressly or by contrary implication. Where the requirement applies its breach can amount to jurisdictional error. A decision affected by such error is liable to be quashed by a writ of certiorari.

77                  A decision of a Court made in the absence of a party who has not been given a reasonable opportunity by the Court to appear and be heard, may be set aside in its inherent jurisdiction:

‘In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial.’

Cameron v Cole (1944) 68 CLR 571 at 589 (Rich J).

In considering whether the Bankruptcy Act 1944 (Cth) conferredpower on the Federal Court of Bankruptcyto set aside such a decision, Rich J referred to the general presumption that a statute is not to be taken to have undermined fundamental principles of law or of equity except by the use of clear words (at 589):

‘A fortiori in the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice.’

78                  Cases involving a judicial discretion or a statutory power, judicial or administrative, to rehear a matter decided in the absence of a party, whether through the fault of the decision-maker or otherwise, occupy potentially a wider field than those in which there has been jurisdictional error attracting certiorari. Cases in the first category are not necessarily a guide, except in terms of broad principle, to the availability of the writ.

79                  Tayloris an example of a judicial discretion to rehear a case where a decision affecting rights was made in the absence of a party. An order was made in the absence of a husband involved in matrimonial proceedings. His non-appearance was not his fault but the result of an error by his solicitors. Service of the relevant petition having been properly effected the first decision was not a nullity. Nevertheless the order was able to be set aside by an order made in the inherent jurisdiction of the Family Court. Both Gibbs and Mason JJ referred to Grimshaw v Dunbar [1953] 1 QB 408 in which Jenkinson LJ restated the prima facie right of a party to an action to have it heard in his presence and said (at 416):

‘… if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case – no doubt on suitable terms as to costs…’.

80                  In a passage from Taylor quoted by the Federal Magistrates Court, Gibbs J said it was no answer to tell a person in the position of the husband that he had a remedy against his solicitor:

‘In such a case, assuming that there is a real question to be tried, justice requires that the order, having been made in breach of a fundamental principle of natural justice, should be set aside and that the matter should be reconsidered on its merit.’

With respect to Scartlett FM, he appears to have erred in his reliance upon Taylor. That case was ultimately about the power of the Family Court to set aside an order made in the absence of a party. Grimshaw was in a similar category. Neither went to the question whether a party’s absence, when caused by the conduct (whether fraudulent or negligent) of his or her adviser, invalidated the decision in question and gave rise to jurisdictional error. The decision complained of in Taylorwas not regarded as a nullity (at 8 per Gibbs J). The point was made by Burchett J in Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 a case which, like Cameron v Cole, involved a sequestration order made in the absence of the debtor who had not received notice of the hearing (at 133):

‘In my view any doubts which may have continued to obscure the position after the decision in Cameron v Cole were cleared up by the judgments in Taylor v Taylor. I respectfully accept the judgment of Rich J in the earlier decision as delineating the court’s powers and the orders which may be made in an appropriate case. I have power, under an inherent jurisdiction, to set aside the sequestration order and at the same time to order a rehearing of the petition. But whether such orders should be made depends upon the exercise of a discretion.’

The distinct question relevant to the present case is whether, and the circumstances in which, procedural unfairness not attributable to the decision-maker will ground certiorari.

81                  That question was answered in the affirmative in England in R v Leyland Justices, Ex parte Hawthorn [1979] QB 283. The prosecutor in proceedings for driving without due care and attention did not disclose certain witness statements to the defendant. Certiorari was issued to quash the resulting conviction for denial of natural justice even though there was no fault on the part of the Magistrates Court that heard the case. Lord Widgery CJ (May and Tucker Evans JJ agreeing) said (at 286):

‘… if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category.’

See also R v Blundeston Prison Board of Visitors; Ex parte Fox-Taylor [1982] 1 All ER 646 in which prison authorities did not disclose to a prisoner the existence of witnesses who might support his case. The cases concerned unfairness caused by misconduct which was equated to, but was not of the same quality, as fraud.

82                  Al-Mehdawi, as a procedural fairness decision,figured prominently in argument in the present case. The principal question before the House of Lords was whether failure of a party to appear before an administrative tribunal because of the neglect of his or her advisers gave rise to a denial of natural justice. The case did not turn on the availability of certiorari for which Ex parte Hawthorn was authority. An Iraqi student, appealing to an adjudicator against a deportation order, did not receive notice of the hearing of his appeal. His solicitor sent the notice to the wrong address. His appeal was dismissed but the adjudication was quashed on judicial review. The Court of Appeal dismissed an appeal by the Secretary of State against the trial judge’s decision. The House of Lords reversed the decision of the Court of Appeal.

83                  Taylor LJ (Nicholls and O’Connor JJ agreeing) held in the Court of Appeal that there was ‘… owing entirely to the solicitors’ negligence, a breach of a basic rule of natural justice – audi alteram partem’. That was the proposition upon which the appeal turned and there was little substantive elaboration of it. Lord Bridge, who delivered the judgment of the House of Lords, identified as the question for decision (at 893):

‘Does certiorari lie to quash a decision given without hearing the applicant for certiorari when the tribunal giving the decision has acted correctly in the procedure adopted but the applicant was deprived of the opportunity to put his case by the negligence of his own legal advisers or otherwise without personal fault on the part of the applicant?’

A number of examples were cited of circumstances in which judgments could be given against parties based on circumstances arising from the negligence of their solicitors. The examples included judgments by default, actions dismissed for want of prosecution and claims not made within a fixed time limit which the relevant tribunal has no power to extend. He said (at 898):

‘These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.’

84                  Lord Bridge referred to R v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24, in which the Court of Appeal rejected an attempt to extend the ambit of certiorari to fresh evidence cases. The case concerned the existence of a public right of way over land. Lord Denning who, contrary to the majority in the Court of Appeal, thought certiorari available in fresh evidence cases, nevertheless joined in the result because the new evidence could have been discovered with due diligence. Lord Bridge drew from that decision and from Lord Denning’s dissent the proposition that certiorari was not available to quash even a public law decision declaring a matter of status on the basis of fresh evidence not adduced at trial because of a solicitor’s want of diligence. He said (at 900):

‘This seems to me wholly inconsistent with the application of a new principle to public law decisions which would be at variance with the principle applicable to private law decisions and which would allow a party affected by a decision to have it quashed on the ground of unfairness when the unfairness resulted solely from the failure of his own advisers to take the appropriate steps.’

His Lordship distinguished Ex parte Hawthorn. Because it involved a failure, albeit an honest failure, by prosecutors to disclose the existence of witnesses favourable to the defence, it was a case of suppression of the truth. It had the same effect as a false statement ‘in distorting and vitiating the process leading to conviction’. The true principle upon which Ex parte Hawthorn could be justified was the same principle which underpinned cases of fraud, collusion and perjury. This distinction and characterisation is of significance for the effect of ‘fraud-like’ behaviour in a decision-making process.

85                  On the other hand, a failure of procedural fairness caused by a party other than the decision-maker, was held by the House of Lords to have occurred in R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 where police authorities had failed to make available to an applicant for compensation a helpful police medical report. Lord Slynn said (at 345):

‘It does not seem to me to be necessary to find that anyone was at fault. It is sufficient if objectively there was unfairness.’

86                  There have been varying Australian responses to Al-Mehdawi. In Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129, judgment in which was given after the Court of Appeal decision but before that of the House of Lords, the Full Court of the Federal Court accepted that if a decision-maker acts upon a misleading submission from his or her department, not shown to the person affected, the decision may be vitiated. Their Honours said (at 133):

‘That may be argued to be such a “fundamental flaw in the decision making process” (R v Secretary of State; Ex parte Al-Mehdawi [1989] 2 WLR 603 at 611)as to make the decision bad on the ground that the decision making process was, even if through no fault of the decision-maker himself, “seriously defective or irregular”, to use an expression adopted by the Court of Appeal in the case just mentioned.’ (Pincus, Gummow and Lee JJ)

This application was consistent with the principle, identified by Lord Bridge in Al Mehdawi, as the true principle underlying the decision in Ex parte Hawthorn. Its weight as a considered observation is not undercut by the reversal of the Court of Appeal in the House of Lords.

87                  In Transport Accident Commission v Bausch (1998) 4 VR 249 Tadgell JA (with whom the other members of the Court of Appeal agreed) observed that Al-Mehdawi and other cases cited to the Victorian Court of Appeal were concerned with administrative decisions to which the English courts had applied the limitations on relief applicable to judicial decisions. His Honour referred to Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 and said (at 263):

‘In Australia, a curial remedy founded on an error of law in respect of a decision of an Administrative Appeals Tribunal has not necessarily been denied because it would be unavailable in respect of a non-administrative decision. In particular, a remedy based on an error of law may be granted even though the complaining party has condoned the Administrative Appeal Tribunal’s error or even contributed to it.’

The Transport Accident Commission case concerned the failure by the Transport Accident Commission to make available to the Victorian Administrative Appeals Tribunal a copy of an investigator’s report which would have been helpful to the claimant. The decision of the Tribunal was set aside.

88                  The omission by a party to administrative review to request and present a relevant audit report defeated its claim of a failure of procedural fairness in SBA Foods Pty Ltd v Victorian WorkCover Authority [2001] VSC 276:

‘In those circumstances, there has not been a denial of natural justice. If there was a defect, it was of the company’s making.’ - Gillard J at [279]

Gillard J found support for his conclusion in Al-Mehdawi. He held that the principles enunciated by Lord Bridge would apply ‘a fortiori when a party and its advisers decide to conduct a review on a certain basis’. They could hardly be heard to complain when, having established the ground rules, an adverse decision was made.

89                  Gleeson CJ observed in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 448, that ‘procedural unfairness can occur without any personal fault on the part of the decision-maker’. He cited Al-Mehdawi and Ex parte A. It may be noted that Lord Bridge, in the passage referred to by the Chief Justice, referred to cases of fraud or collusion or improper non-disclosure of evidence by the prosecutor in a criminal case citing – R v Gillyard [1848] 12 QB 527; R v Recorder of Leicester, Ex parte Wood [1947] KB 726 and Ex parte Hawthorn. These, he said, were not really procedural unfairness cases (at 896).

90                  Ex parte A was discussed briefly in the joint judgment of the majority in Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 211 CLR 441. Their Honours observed that the Criminal Injuries Compensation Board, which was created in the exercise of prerogative rather than statutory power, did not appear to have denied procedural fairness. The failure by police authorities, in Ex parte A, to provide the helpful report to the applicant might best have been characterised as a failure to observe requisite procedures in connection with the making of the Board’s decision, akin to the ground for which s 5(1)(b) of the Administrative Decisions (Judicial Review) Act 1975 (Cth) (ADJR Act) provides.

91                  In O’Sullivan v Repatriation Commission (2003) 128 FCR 590, where there had been unfair cross examination of an applicant in the Administrative Appeals Tribunal based upon a common misapprehension about the completeness of a document upon which he was being cross-examined, Sackville J referred to Ex parte A and said (at [52]):

‘It is fair to say that the High Court has not greeted Ex parte A with unalloyed enthusiasm.’

His Honour discussed the way in which the decision was distinguished in Ex parte S134/2002. He accepted that in the case before him the Tribunal members were not personally at fault for the unfairness sustained by the applicant. They were misled by a mistake on the part of the respondent or its representative. His Honour distinguished the case before him from Al-Mehdawi on the basis that the applicant could not be said to have been responsible for what occurred. He took Al-Mehdawi as supporting the proposition that ‘… a litigant deprived of the opportunity to have a case heard because of the default of his or her own advisers cannot complain of a denial of procedural fairness’.

92                  In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 a Full Court of the Federal Court unanimously dismissed an appeal from the primary judge who had granted relief by way of certiorari quashing a decision of the Refugee Review Tribunal for want of procedural fairness. The unfairness arose on account of the respondent’s extreme distress and the effect upon him of medication at the time of the hearing which followed shortly after his father’s death. These circumstances were not known to the Tribunal. The Full Court had regard to the conditional obligation imposed on the Tribunal by s 425 to invite an applicant for review to attend a hearing. Their Honours said of the invitation that it (at [33]):

‘… must not be a hollow shell or an empty gesture.’

And further (at [37]):

‘The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation.’

Their Honours did not refer to Al-Mehdawi. They cited Ex parte A as an example of the extension by English Courts of judicial review beyond jurisdictional error in the light of Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147.

93                  SCAR was mentioned in support of a decision recently given by Gyles J in Applicant S296/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166. In that case, however, the Tribunal had refused to adjourn a hearing on the grounds of the applicant’s psychiatric condition. While finding no ‘general fault in the reasoning of the Tribunal’ Gyles J held that in the particular circumstances of the case there had been an unreasonable refusal of an opportunity to present a case which was sufficient to breach the rules of procedural fairness (at [5]).

94                  With all due respect to the contrary view expressed by Graham J in his reasons in this case, while there may be room for debate about the reasoning in SCAR it is not ‘plainly wrong’. It is a unanimous decision of a Full Court of this Court. It was invoked by two later Full Courts in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121. There is a high threshold to be surmounted before a Full Court of this Court declares an earlier decision of another Full Court of this Court to be wrong. It is not enough that a later court would take a different view of the law where two views are open. It must be convinced that the earlier Full Court is wrong – Chamberlain v The Queen (No 2) (1983) 72 FLR 1 at 8-9; Nguyen v Nguyen (1990) 169 CLR 245 at 268-269; Transurban City Rail v Allan (1999) 95 FCR 553 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 256-257 where Allsop J reviewed the above authorities. In the end, however, for the reasons set out later, the point upon which SCAR is taken to task by Graham J,namely the scope of the obligation to extend an invitation to the hearing, is not critical to the question which I would regard as determinative in this case. That question is about theeffect of fraud upon the decision-making process of the Tribunal.

95                  The Full Court in Clements v Independent Indigenous Advisory Authority (2003) 131 FCR 28was concerned with a case in which an applicant before the Administrative Appeals Tribunal did not receive written notice of the hearing date before the hearing. Gray ACJ and North J said (at [33]):

‘The fact that the Tribunal was unaware of the absence of notice to the applicant when it made its decision does not negate the denial of procedural fairness. It is not a necessary element of a denial of procedural fairness that it be the result of intentional conduct, or even of negligence. It is enough that it occurred.’

Gyles J agreed with the substance of the joint judgment.

96                  In Clements their Honours referred to Cameron v Cole; Taylor and Re Anasis. Each of those cases as they pointed out involved the absence of a party at a hearing through no fault of that party or the court hearing the matter. Each had resulted in the setting aside of an order made in the party’s absence. These references did not address the distinction between cases in which the impugned decision was set aside in the exercise of a discretion to rehear and cases in which the impugned decision was invalid.

97                  In Freeman v Health Insurance Commission (2004) 141 FCR 129, Kiefel J, with whom Marshall and Downes JJ agreed, cited Al-Mehdawi and Ex parte A and said (at [52]):

‘In the context of administrative decision-making there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision, through their mistaken view or that of their legal advisers, could amount to procedural unfairness. There would seem to be strong policy grounds why this should not be the case. And it may be that the position formerly stated in England with respect to a mistake of this nature still maintains.’

98                  In B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30, an applicant before the Refugee Review Tribunal failed to attend the hearing to which he was invited albeit the relevant notice had only reached his migration adviser, having been sent to the applicant at an old address. Dowsett J, on an application for judicial review of the Tribunal’s decision, found that the applicant was aware of the hearing and its purpose and that he had been advised by his migration agent that there was no point in attending. Dowsett J said (at [23]):

‘That was a matter for judgment. He chose to act on this advice. That he did not attend the hearing was a consequence of such choice. There was no denial of procedural fairness.’

His Honour referred to Al-Mehdawi, Barrett, SBA Foods and Hot Holdings. He said (at [25]):

‘The Chief Justice’s observation in Hot Holdings and the apparent approval by the Full Court in Barrett of the extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords in that case should be treated with caution. Nonetheless the outcome is consistent with general principles and good policy. In my view, the prosecutor cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser, led to his being denied procedural fairness. In any event, it is far from clear that the advice was other than appropriate in the circumstances. That would depend very much upon what the prosecutor told the adviser about the case.’

As I have already observed, the reference in Barrett to what the Court of Appeal said in Al Mehdawi was not undercut by the House of Lords’ reversal of the Court of Appeal.

99                  A Full Court of the Federal Court in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 considered the effect of the provisions of Part 7 of the Act in which ss 420, 424, 425, 425A and 426A appear. The Court said that the legislative scheme of which those sections form part (at [16]):

‘… expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.’

The spare factual circumstances before the Court in that case were that an invitation to attend a hearing was sent to the applicants’ residential address shown on their applications to the Tribunal and came back marked ‘Return to Sender’. The applicants said they had not received either letter. The decision in that case does not establish a wide principle that a tribunal hearing conducted in the absence of applicants, without fault on the part of the applicants to whom notice of the hearing has been sent, can never involve a want of procedural fairness attracting certiorari – see also SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 at [25] (Bennett J).

100               Aronson Dyer and Grovesin Judicial Review of Administrative Action, (3^rd ed, Thomson Law Book Co, 2004) suggest, correctly in my respectful view, that the general position in Australia is the same as that in England. That is, it is not necessary to show fault on the part of a decision-maker in order to establish procedural unfairness. This is subject to the qualification that there must be more than unfairness which is purely the fault of the affected party’s own legal advisers (at 461).

101               What emerges from the authorities referred to above is that procedural unfairness, not attributable to a decision-maker, may arise in connection with the making of a decision when a person’s exercise of the right to be heard before the decision is made, is compromised or lost through no fault of that person. That circumstance does not however establish a sufficient condition for a finding of procedural unfairness. Whether the decision is vitiated will depend upon the legal framework within which it was made, including any relevant statutory scheme, the content and effect of the decision, the extent to which the right to be heard has been affected or lost and the circumstances in which it has come to be affected or lost. More specifically, in the present context, it is necessary to acknowledge that the right to be heard does not always require an oral hearing. The content of procedural fairness in relation to the right to be heard will depend upon the nature and circumstances of the case – Zhang de Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384. In applications for review by the Tribunal the statutory scheme requires that an invitation to attend an oral hearing be extended where the Tribunal is unable to come to a decision favourable to the applicant on the papers. The content of procedural fairness in relation to the right to be heard there involves an oral hearing although a question may arise whether, if a written case has been put and considered, there is by loss of the oral hearing any ‘practical unfairness’ – Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.

102               The application of the general principles emerging from the authorities discussed above, establishes that procedural unfairness affecting a person’s right to a hearing before an administrative tribunal can be a ground for judicial review without any fault on the part of the tribunal. Whether there has been a reviewable failure of procedural unfairness will depend upon the circumstances. On the basis of the cases discussed above, it may arise where:

1. By reason of a psychiatric or other medical condition a party has a significantly diminished capacity to participate in the oral hearing.

2. The party does not attend at an oral hearing for reasons beyond his or her control and of which the tribunal is unaware. This circumstance is likely to be of practical significance where the tribunal makes its decision at the hearing or before any explanation for non-attendance could reasonably have been proffered by the applicant. Example of its application might arise where a person is involved in a traffic accident on the way to the hearing or is taken suddenly ill and is unable to appear or notify the tribunal of his or her pending non-appearance.

3. As a result of the conduct of a third party, the tribunal is misled on a question which is of significance to the outcome of the hearing.

4. A third party fails to provide to the tribunal and the person to be affected by the decision with documents in its possession or power which would be favourable to that person. There may be a question whether this is a case of procedural unfairness or, in the case of the Tribunal, one better considered under the heading of failure to comply with statutory procedures.

Procedural unfairness does not arise merely because the person to be affected by the tribunal’s decision decides, upon advice from another, whether that advice be good or bad, that it is not necessary or desirable to attend a proffered hearing.

103               SZFDE could not succeed on procedural fairness grounds as the unfairness turned upon the poor advice of her agent. The fact that it was fraudulent advice does not change the character of any resulting unfairness for the purposes of the common law requirements of procedural fairness. If the success of her challenge to the Tribunal’s decision is to be preserved on this appeal, it must be on the wider basis of fraud affecting the Tribunal’s decision or the decision-making process leading up to it.

Fraud and the exercise of official power

104               Fraud involves dishonesty. It is also rightly seen as the harbinger of unfairness. A decision obtained by fraud is unfairly obtained. A right, immunity or privilege denied or lost on account of fraud is unfairly denied or lost. So an administrative decision making process affected by fraud may, in some cases at least, be vitiated on account of unfairness arising from the fraud. In this case non-appearance before the Tribunal on the basis of fraudulent advice, does not seem to give rise to procedural unfairness which would support certiorari. Resort must be had to the different principle arising in cases of fraud which is sometimes expressed by the statement that ‘fraud vitiates everything’. The latter statement appeared in the judgment of Lord Denman CJ in Philipson v The Earl of Egremont [1844] 6 QB 601 at 605 which concerned collusion between two parties to civil proceedings:

‘Fraud, no doubt, vitiates every thing; and the Court, upon being satisfied of such fraud, has a power to vacate, and would vacate, its own judgment, as is suggested in Bradley v Eyre ( 11 M & W 450).’

105               The availability of certiorari to quash curial decisions obtained by fraud, including the proffering of perjured evidence, was established at least as long ago as 1848 in R v Gillyard in which Erle CJ said:

‘The Court has authority to correct all irregularities in the proceedings of inferior tribunals which in this case have been resorted to for the purpose of fraud. In quashing the conviction we are exercising the most salutary jurisdiction which this Court can exercise.’

The decision in R v Gillyard as to the availability of certiorari in such cases was applied in R v Recorder of Leicester, Ex parte Wood. Certiorari went to quash the order of a Recorder who allowed an appeal from justices in affiliation proceedings on the basis of perjured evidence proffered at the appeal by the person who was the respondent before the justices. Singleton J said (at 728):

‘In the present case the order of the inferior court was obtained by fraud and perjury, and, as far as I know, procedure by certiorari is the only one which can be adopted to put right the wrong which has been done.’

R v Recorder of Leicester; Ex parte Wood was applied in R v Wolverhampton Crown Court, Ex parte Crofts [1982] 1 WLR 204. In that case a man who did not appear in the Magistrates Court was there convicted of traffic offences. He gave false evidence on appeal that it was a woman who was driving the car at the material time and not himself. The Crown Court quashed his convictions. He later admitted that his evidence was false and he was convicted of perjury. Certiorari issued to quash the order of the Crown Court allowing his appeal against the Magistrates Court decision.

106               A broad statement about the effect of fraud on administrative acts is to be found in Lazarus Estates Ltd v Beasley [1956] 1 QB 702. The case concerned a privative clause in the Housing and Repairs Act 1954. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the tenant. The Court of Appeal held the validity of the declaration could be challenged as fraudulent in proceedings for arrears of rent. Denning LJ said (at 712):

‘No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…’

So here I am of opinion that if this declaration is proved to have been false and fraudulent, it is a nullity and void and the landlords cannot recover any increase of rent by virtue of it.’

Parker LJ, in similar vein, observed that proof of fraud ‘vitiates all transactions known to the law of however higha degree of solemnity’ (722). It followsthat fraud has a wider application in vitiating official decisions than could be achieved by reliance upon any inherent, incidental or consequential procedural unfairness. A suggested limitation upon the application of this proposition is that a decision affected by fraud is a nullity only if the decision-maker was a party to the fraud – Anisminic at 170 (Lord Reid). Whatever the merit of that limitation, which was stated rather than explained, certiorari lies to set aside a decision affected by fraud regardless of its source.

107               Knightsbridge Crown Corp; Ex parte Goonatilleke [1986] 1 QB 1, was decided on natural justice grounds although it might well have been seen, on its facts, as a fraud-like case. A store detective’s evidence led to a conviction of shoplifting. It later emerged that the store detective had resigned from the Metropolitan Police over his disgraceful conduct involving a conviction. His deliberate concealment of his character was held to have deprived the applicant of knowledge to which he would have been entitled. The conduct was said, by Watkins LJ, to constitute a denial of natural justice to the defendant and certiorari issued to quash the conviction by the magistrates court and also to quash its affirmation in the Crown Court. Nolan J agreed. Later however, in R v Bolton Justices, Ex parte Scally [1991] 1 QB 537 and following consideration of Al-Mehdawi, Watkins LJ observed:

‘In my view Goonatilleke was clearly a case analogous to fraud.’

108               In Scally blood specimens relied upon in a prosecution for driving with excess alcohol, to which the defendants pleaded guilty, were found, post-conviction, to have been taken with swabs impregnated with alcohol such that the blood test results could well have been inaccurately high. No dishonesty had been involved. There was no unfairness on the part of the court or malpractice by the prosecution. Nevertheless the case was treated, by the court, as one in which the process leading to the conviction with excess alcohol, had been corrupted by the prosecutor in a manner which was so unfair that it gave the applicants no proper opportunity to decide whether to plead guilty or not. The case was analogous to one of fraud, collusion or perjury (at 634 per Watkins LJ). Hutchinson J, who agreed with Watkins LJ, referred to:

‘… that special category of cases, analogous to fraud, and exemplified by the decision in R v Leyland Justices, Ex parte Hawthorne [1979] QB 283, where relief is available even in the absence of error or miscalculation by the tribunal.’

109               A decision of the Full Court of the Federal Court in Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 concerned the power of the minister to revoke citizenship granted on a misrepresentation. There was discussion by Finkelstein J, with whom Beaumont J agreed, about the power of the minister to change his mind and revoke the decision granting citizenship and to treat it as invalid on the basis that it had been made on a misrepresentation. Finkelstein J concluded (at 90):

‘The minister has now discovered the true position and, while not wishing to allege that the appellants were guilty of fraud, has “revoked” the certificates granted to them and treated that revocation as a refusal of their application for certificates under s 13(1). There is no doubt that the minister was entitled to take these steps. No statutory power was required. The original decisions having been obtained by a misrepresentation, were not decisions made in the true exercise of the power conferred by s 13(1) and can be treated as having no effect.’

See also Jones v Commissioner of Police (1990) 20 ALD 532 in which Carruthers J held a decision made by the Commissioner of Police under the Police Regulations (Superannuation) Act 1906 (NSW) involved an act of deception by the police officer who received the benefit of the decision (cf: Transport Accident Commission v Dohnal (1996) 10 MVR 232). Carruthers J invoked the dictum of Denning LJ in Lazarus Estates. There is a brief discussion of these cases in E Campbell, Effect of Administrative Decisions Procured by Fraud or Misrepresentation, (1997) 5 AJAL 240-247.

110               The availability of certiorari to quash decisions affected by fraud must be distinguished from the jurisdiction of the common law courts to set aside their own judgments where such judgements have been obtained by fraud Philipson v The Earl of Egremont (supra). It must also be distinguished from the jurisdiction of the Chancery Courts to do the same and to restrain the enforcement of fraudulently obtained common law judgments. The Full Court of the Federal Court in Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 37 FCR 234 considered the pre-Judicature Acts system under which a bill of review procedure could be used to set aside Chancery decrees obtained by fraud even after entry. The ‘equity’ was based on the presence of fraud or the discovery of new evidence. Chancery’s authority also extended to restraining, on the grounds of fraud and discovery of new material evidence, the enforcement of final judgments which had been entered by a common law court. The FullCourt went on to say (at 239):

‘Within courts operating under the Judicature system the common injunction is abolished. There is no longer any occasion for the exercise of such indirect methods, because in respect of a conflict between rules of law and equity with reference to the same matter, equity prevails: Judicature Act 1873 (UK), s 25(11). Hence there has been no difficulty in treating all judgments impeached for fraud in a Judicature system court in the same way as previously Chancery treated its own decrees on a bill of review.’

In Glennan v Commissioner of Taxation (2003) 198 ALR 250 the High Court rejected a submission that an alleged failure by the Commissioner of Taxation to apply a public ruling or to draw the attention of the appellant or other decision-makers to that ruling, amounted to an ‘equitable fraud’ affecting proceedings in the Administrative Appeals Tribunal. The Court went further and said (at [24]):

‘Further, the doctrine relied upon and identified as “equitable fraud” was developed in Chancery with an in personam remedy to enjoin the enforcement of judgments obtained in the common law courts. The AAT was not a court exercising the judicial power of the Commonwealth and, as an administrative body, it must at least be doubtful whether there could be any scope for the impeachment of its decisions in this way.’

The important qualifying words in that passage are ‘in this way’. What was said in Glennan does not reflect upon the availability of certiorari in relation to administrative decisions vitiated by fraud or circumstances ‘analogous to fraud’.

111               Australian cases on the use of certiorari to quash decisions of inferior courts obtained by fraud can be traced back tothe decision of the Privy Council in Colonial Bank of Australasia v Willan [1874] LR 5 PC 457. The Privy Council held that the Supreme Court of Victoria had a general power to issue a writ of certiorari to any inferior court in the colony coextensive with the like power of the Court of Queens Bench. A privative clause in the Mining Statute 1865 had taken away the power to issue certiorari to the Courts of Mines in respect of proceedings under that statute. However the scope of the clause was not all encompassing. Like the Court of Queens Bench the Supreme Court could grant certiorari, notwithstanding the privative clause, on the ground either of a manifest defect of jurisdiction or manifest fraud in the party procuring the order. In that case the decision of the Supreme Court of Victoria quashing a decision of the Court of Mines was reversed as the fraud on which it was based had not been established. The Privy Council added that ‘… the Judge of Court of Mines who made the order would, on a suggestion of fraud, have had power to review it’.

112               There are two reported Australian cases in which the possibility was canvassed that circumstances analogous to fraud could attract certiorari to quash an order made in an inferior court.

113               In Hallahan v Campbell; Ex parte Campbell (No 2) [1964] Qd R 337 the Full Court of the Supreme Court of Queensland accepted that a statement prepared by police and read to the Magistrates Court upon a plea of guilty to vagrancy misstated facts adversely to the defendant. Stanley J concluded that ‘… whether by deliberate intention or mere recklessness the statement submitted to the magistrate in this case amounted to a fraud on the court’. He ordered certiorari. Hart J, who thought the statement deliberately false, agreed that certiorari should issue as did Lucas AJ. Both referred to the passage from the judgment of Singleton J in R v Recorder of Leicester, Ex parte Wood quoted earlier in these reasons.

114               A case arose in the Northern Territory Supreme Court in 1996 which was similar in certain respects to Hallahan. However it involved a combination of prosecutorial and defence carelessness rather than fraud or recklessness. InR v Deland; Ex parte Willie (1996) 6 NTLR 72 an Aboriginal man from a remote community pleaded guilty to charges of driving while disqualified and driving with a blood alcohol content in excess of .08 per cent. He had been arrested on a warrant issued following his alleged non-appearance to answer those charges at the Court of Summary Jurisdiction in Alice Springs. As later emerged, he was not in fact the man who had been charged. There was ‘a total lack of effective communication’ between the defendant and his counsel. His counsel on his behalf admitted all relevant facts supporting a plea of guilty to the two offences. The defendant was convicted. He suffered a suspended sentence of two months imprisonment, and a fine and was disqualified for 18 months from holding a driver’s licence. Police took his fingerprints which, if they had been checked, would have been found not to be those of theman who had in fact been charged with the offences. A new record was created. A few months later the police apprehended the defendant on fresh charges of driving while disqualified and with a blood alcohol in excess of 0.08 per cent. The newcharge of driving while disqualified was based on the fact that thedefendant was found driving notwithstanding the disqualification which had been imposed in respect of the wrongful conviction for driving with a blood alcohol in excess of 0.08 per cent. The defendant again pleaded guilty. He was represented by different counsel who admitted facts relied upon by the police in relation to the new set of offences. Once again there was a total lack of effective communication between the defendant and his counsel.

115               Kearney J held that it was competent for the Supreme Court of the Northern Territory to grant certiorari to quash the wrongful convictions, they being the original wrongful convictions and the consequential second conviction for driving while disqualified. He referred to Craig v State of South Australia (1995) 184 CLR 163 for the proposition that fraud upon the court which would support the issue of certiorari did not require ‘actual fraud or dishonesty’. His Honour said however ‘… there must be something analogous to fraud’. He said (at [38]):

‘I characterize the outcome of what occurred before her Worship as attributable to ‘recklessness’ by the police, compounded by the defence lawyers; in that sense, what occurred was analogous to a ‘fraud’ on the court by “the party procuring [the conviction]”, in terms of Willan (supra). Accordingly, those proceedings are exposed to review by certiorari.’

In Craig v State of South Australia the High Court said, in a footnote to its judgment, relied upon by Kearney J, that fraud grounding certiorari to quash the decision of an inferior court or tribunal was (176 footnote 58):

‘… used in a broad sense which encompasses bad faith’.

The footnote cited the judgment of Lord Reid in Anisminic at 171 although nothing in the judgment at that page seems to support the footnoted proposition.

116               The decision in Deland is not without difficulty. Kearney J’s characterisation of the police conduct in that case as ‘reckless’ does not appear to be supported by the facts. Nevertheless the decision was consistent with the English authorities relating to ‘circumstances analogous to fraud’.

117               Before the Migration Act was amended in 2001, judicial review of decisions under that Act was available in the Federal Court but only on the grounds set out in s 476. One of those grounds was ‘that the decision was induced or affected by fraud or by actual bias’ (s 476(1)(f)). The first limb of that ground was taken from s 5(1)(g) of the ADJR Act. Generally speaking s 5 of the latter Act reflects the common law grounds for judicial review – Kioa v West (1985) 159 CLR 550 at 567 (Gibbs CJ), 576 (Mason J), 594 (Wilson J), 625 (Brennan J) and 630 (Deane J agreeing with Mason and Wilson JJ); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356-358 (Mason CJ).

118               Case law on s 5(1)(g) of the ADJR Act is sparse. Neither that provision nor s 476(1)(f) is mentioned in Aronson, Dyer and Groves. There appear to have been only two reported cases on the latter provision, namely Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 and Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387. There is nothing in those decisions or the language of the statutory fraud ground that suggests it was intended to provide a wider ground for review than would have been available at common law. It is true however that the decisions focused upon the language of the statute rather than upon common law principles. The first of them, Wati, concerned a Fijian national whose visa was cancelled on the basis that she had made false statements to procure it. The Immigration Review Tribunal affirmed the cancellation on that basis. In so doing it acted upon evidence by a third party. In a judicial review application in the Federal Court Mrs Wati contended that the third party’s evidence had been false. Lindgren J dismissed the application as he was not satisfied that fraud had been demonstrated. His Honour held that there was no reason to think that the ‘fraud’ referred to in s 476(1)(f) was limited to the fraud of the decision-maker or a party or a party’s representative (at 112). His Honour approached the statutory ground as defining a substantive basis for review. His judgment made no reference to the case law in relation to fraud at common law. This is perhaps not surprising given that he found, as a fact, that the fraud asserted was not made out

119               The judgment in the second decision, Jama, was given by Lehane J. A Somalian national applied for a protection visa and was refused. Her husband, already a permanent resident of Australia as a refugee, falsely denied that they were married. He later admitted the falsity of his denial which he said he had made because he thought she had been unfaithful to him. The Tribunal decision affirming the refusal of the wife’s protection visa was set aside in the Federal Court on the ground that it had been induced or affected by fraud. Nevertheless in my opinion both judgments are consistent with the common law as developed in the English authorities referred to earlier albeit the judgments do not address the question of the circumstances ‘analogous to fraud’.

120               Lehane J observed, as had Lindgren J in Wati, that the Court’s jurisdiction to review the Tribunal’s decision was statutory. There was, he said (at [21]):

‘… no complete analogy either with the court’s equitable jurisdiction to set aside its own judgment on the basis that it has been obtained by fraud or with the appellate jurisdiction to set aside a judgment and order a new trial on the basis of fresh evidence.’

His Honour referred to Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 and the Monroe Schneider decision. He agreed with Lindgren J that a claim could be reviewed although the fraud affecting the decision was not attributable to a party or to the Tribunal itself. His Honour also considered that there was no scope in exercising the judicial review jurisdiction ‘… for applying a principle of finality’ (at [21]). Like Lindgren J, his Honour held that a decision was ‘affected by fraud’ if ‘… the fraud had a material effect in relation to the decision which the tribunal reached’ (at [22]). His Honour did not refer to the availability of certiorari to quash a decision obtained by fraud. As in Wati his Honour approached the ground as defining, on its own terms, the basis for review.

121               The common law proposition that fraud may vitiate an administrative decision made in the exercise of a statutory power applies as part of the common law of Australia as it does as part of the common law of England. It has not been formulated with precision. Its extension to circumstances ‘analogous to fraud’ covers a range of situations which are not clearly delineated. It appears to cover ‘reckless’ conduct. As Aronson, Dyer and Groves observed, after referring to the acceptance in Al-Mehdawi that decisions of inferior courts and tribunals could be reviewed at the instance of one party for the fraud, perjury, duress or even simply improper behaviour of another party:

‘The principle underlying these cases however is still unclear.’

It is sufficient to say that a decision made in the purported exercise of statutory powers may be quashed by certiorari where the decision has been induced or affected by fraud or by circumstances analogous to fraud.

122               Fraud and ‘analogouscircumstances’ 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.

123               Where a decision-maker acts upon a false impression created as the result of a fraud affecting the conduct of a party before it, then the resulting decision can be said to be induced or affected by the fraud. So a response to an invitation to an oral hearing where the response is in the negative and constitutes a consent to disposition without such a hearing may create the false impression that that consent was voluntarily given when in truth it was obtained by fraud. The proposition that fraud unravels everything in that case applies to the consent upon which the decision-maker acts as well as the decision which results.

124               Division 4 of Part 7 of the Act codifies the content of the natural justice hearing rule in relation to proceedings before the Tribunal. There is nothing in that Division or in the Act which displaces the common law proposition that fraud unravels everything. This is not a case about the natural justice hearing rule. It is a case about fraud. It is well established that common law rules of construction require statutes to be construed consistently with common law doctrines unless there is disclosed a legislative intention to the contrary – Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v Western Australia (1990) 171 CLR 1 at 18; Coco v The Queen (1994) 179 CLR 427 at 437; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553. And see Justice WMC Gummow, The Constitution: Ultimate Foundation of Australian Law? (2005)79 ALJ 167 at 177.

The effect of the agent’s fraud on the Tribunal’s decision

125               Counsel for SZFDE rightly identified as ‘the key to this case’ the finding of fraud made by the learned Magistrate. On the facts found want of procedural fairness has no purchase having regard to the legislative scheme set out in Part 7 of the Act.

126               The Tribunal sent an invitation to SZFDE under s 425 to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Such invitation having been sent out, the Tribunal accepted at face value the response that SZFDE and her family did not wish to appear. There was nothing in the conduct of the Tribunal in this respect that could be described as unfair.

127               Nor was there anything in the conduct of the Minister or the Department in relation to the review that could be said to have infected it with procedural unfairness. And, although procedural unfairness may, as the authorities discussed earlier demonstrate, occur without fault on the part of the decision-maker, an applicant for review who acts upon bad advice not to attend a Tribunal hearing does not thereby render the Tribunal’s subsequent decision making unfair.

128               Ultimately, however, this is not a case about unfairness. Rather, it is a case about the effect of fraud upon the Refugee Review Tribunal’s decision-making process for which the Parliament has provided in Part 7 of the Act.

129               There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. But where a person’s participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case. In this case, on the findings made by the learned Magistrate which are not challenged as to the facts, SZFDE and her family were dissuaded from appearing before the Tribunal by the fraudulent advice of the migration agent. The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was ‘not accepting any visa applications at all at the moment’. He expressed a false concern that if SZFDE and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice SZFDE’s prospects of a successful outcome on the basis of a submission to the Minister.

130               SZFDE’s negative response to the hearing invitation was procured by the dishonest conduct of her purported representative. To that extent her consent to the disposition of her application for review without a hearing was of no effect. She was denied, by fraud, the opportunity to appear at and be heard by the Tribunal on a matter of vital importance to her future and that of her family. The decision-making process, that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Part 7, was corrupted. The importance of the appearance before the Tribunal to the outcome of the review was highlighted by the Tribunal’s reference, in its reasons, to matters which it did not have an opportunity to explore with SZFDE because of her non-appearance. On this basis, in my opinion, the decision of the Tribunal was vitiated. It was not a decision made under the Act and therefore not a privative decision protected by s 474.

131               On the basis of the authorities referred to earlier, I am of the opinion that there was jurisdictional error on the part of the Tribunal in the sense that it made a decision which it did not have power to make. It did not have before it a real consent of the kind contemplated by s 425(2)(b). It made its decision blamelessly but pursuant to a process which, unknown to it, was compromised by third party fraud. The decision was therefore beyond power and affected by jurisdictional error. Certiorari lay to quash the decision. It was associated with relief by way of mandamus to require the Tribunal to reconsider the matter according to law. That, of course, would have required no different approach on the part of the Tribunal but would have required it to proceed to do its duty, of conducting a review, where previously the purported discharge of that duty was vitiated by the actions of the agent.

Conclusion

132               For the preceding reasons, in my opinion, the appeal by the Minister should be dismissed with costs.

Associate:

Dated: 3 October 2006

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

ALLSOP J

133               The reasons of French J and Graham J relieve me of the need to recite the facts beyond that which is essential in order that I may express my views shortly.

134               Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 is a Full Court authority standing for the proposition (though strictly obiter dicta, see SCAR at [40]) that if an applicant before the Tribunal is not in a fit state to represent herself or himself then there has been a failure to provide the applicant with an invitation that accords with s 425. I can easily understand the conclusion that in such circumstances there has simply been no hearing, even if the relevant defect has occurred without fault on the part of the Tribunal. If the applicant is not in a fit state, or cannot as a matter of fact understand what an interpreter is saying, it can be said that no hearing has, as a matter of substance, occurred. However, the proposition that there has not been an invitation required or contemplated by s 425 of the Migration Act 1958 (the ‘Act’), in such circumstances is less than clear. In some cases, if the difficulty under which the applicant laboured was relevantly present at the time of the sending of the invitation it may perhaps be said that there was no invitation. It is unnecessary and inappropriate to discuss circumstances not before the Court. Here, the circumstances are quite different from those in SCAR. A document inviting the respondents to a hearing was received by their appointed agent. The respondents undoubtedly learnt of the invitation to attend the hearing. A decision was made by the respondents not to attend the hearing offered by the Tribunal. Effectively, they decided to decline the invitation that had been issued to them to attend. That decision was induced, on the findings of fact by the Federal Magistrate, by the fraudulent or dishonest statements of their own agent. In those circumstances, I do not see how it can be said that an invitation conforming to s 425(1) of the Act was not issued. That being so, the Tribunal was authorised to made a decision: s 426A(1) of the Act.

135               As Sundberg J and Hely J said in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [14]- [15], s 425 requires an invitation to be given. If one has been given in accordance with the Act and Regulations, the Tribunal was authorised by the Act to make the decision.

136               I do not think that it is correct to say that the decision of the Tribunal was induced or affected by fraud. Nothing in Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 or Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387 (being the cases relied upon by the Federal Magistrate) requires that conclusion. The parties did not attend a hearing to which they were invited, on the facts, because of the dishonest advice of their own agent. The decision itself was made, without the benefit of the participation of the respondents, but unaffected, and certainly not induced, by fraud.

137               Taylor v Taylor (1979) 143 CLR 1 was a case about a court in the exercise of power to control its own proceeding setting aside an order made in the absence of the parties. Here, the Tribunal issued an invitation, was authorised by statute to make the decision and did so.

138               Section 422B of the Act makes Division 4 an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. Even if conduct of the agent can be said to provoke a conclusion that there has been procedural unfairness in the making of the decision (a conclusion with which I do not agree) s 422B and the terms of ss 425 and 426A are determinative of its lack of effect on the decision. There is a difference of opinion in the Court as to the width of s 422B: see the reasons of Branson J in SZBDF v Minster for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [12]. Even on the narrower view espoused by French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [47]-[59] and Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 at [35]-[37] the above conclusion would follow. If I am wrong about that, like Branson J in SZBDF, I would follow Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [50]-[87] and Hely J in Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 at [21]-[23] in which case the above conclusion would follow.

139               Whilst the consequences of fraud practised upon the decision-making process of an administrative tribunal might, in some cases, lead to the conclusion that a decision had been made without authority or exhibiting jurisdictional error, that conclusion will generally be reached by reference to notions of procedural fairness. Whilst the taxonomy or categorisation of legal principle should not impede its recognition or operation, some characterisation is called for here by the terms of s 422B: “the requirements of the natural justice hearing rule”. It is difficult to see here how, absent regard to the rules of procedural fairness or “the requirements of the natural justice hearing rule”, one can identify a principle of law that permits the conclusion that there has been jurisdictional error. There has been no fraud of the Tribunal. There has been no fraud of the executive department. There was an invitation to attend a hearing. That invitation was declined. That decision to decline the invitation was influenced by the dishonesty and fraudulent purpose of the agent of the applicants. I do not see the basis for a conclusion that there was any denial of procedural fairness or that those circumstance denied the Tribunal the authority to decide the review given the terms of ss 425, 426A and s 422B. I do not think that it is an accurate conclusion to say that the legislative scheme was corrupted by fraud or that a hearing was denied by fraud. That is not to cavil with the findings of the Federal Magistrate as to the dishonesty and fraud. The scheme of the Act was to give an invitation to attend a hearing. It was given. It was understood by the respondents to have been given. A conscious choice was made by the respondents not to go to the hearing, which was influenced by the fraud of the agent. The complaints of the respondents are not about the process, but about their erstwhile agent who acted as he did. I do not consider that either the decision or the statutory process was corrupted by fraud.

140               No argument was put that the place of the migration agent in the statutory scheme of decision-making under the Act is such as to warrant a conclusion (analogous to the failure of a legal practitioner as an officer of the court in a criminal trial, for instance) that a serious breach of duty by the migration agent, can be viewed as a breakdown or corruption of the administrative process itself such that it can be concluded that there has been jurisdictional error of the Tribunal (analogous to the availability of a ground of appeal based on the incompetence of counsel).

141               I see no basis for any conclusion that there was any jurisdictional error. The appeal should be allowed with costs. Orders 3, 4 and 5 of the Federal Magistrates Court made on 20 December 2005 should be set aside and the respondents’ application dismissed with costs.

Associate:

Dated: 3 October 2006

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

GRAHAM J

The Primary Issue

142               The primary issue for determination in this matter is whether a decision of the Refugee Review Tribunal (‘the Tribunal’) can be set aside for jurisdictional error in circumstances where the Applicant before the Tribunal, with full knowledge of the Tribunal’s invitation to appear before it at a hearing to enable the Applicant to give oral evidence and present arguments in support of her claims, deliberately failed to attend the hearing on the day, at the time and at the place notified, attributing her non-attendance to what was alleged to have been fraudulent advice given to her by her own agent.

The First Respondents’ Case

143               The First Respondents’ primary case is that the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) (‘the Act’). Their secondary case is that there was a denial of procedural fairness applying general law principles. Senior counsel for the First Respondents submitted that, notwithstanding that the First Respondents raised no suggestion of impropriety on the part of the Tribunal, nevertheless the decision of the Tribunal was affected by fraud.

The facts

144               The first-named First Respondent in the present appeal is a citizen of Lebanon. She arrived in Australia with her husband, the second-named First Respondent, and their two children, the third and fourth-named First Respondents on 27 February 2002. The family were travelling on Lebanese passports and entered Australia under three month visitors’ visas. No claims to refugee status are made by the second, third or fourth named First Respondents.

145               The first-named First Respondent, who has been identified for the purpose of these proceedings as SZFDE, was born in Lebanon on 15 April 1966. She has had a tertiary education and has worked as an accountant, as a publicity designer and as a journalist.

146               On 22 March 2002 the first-named First Respondent applied for a Protection (Class XA) visa. That application also embraced the other members of her family. It was refused by the Minister’s delegate on 29 August 2002 because the first-named First Respondent did not satisfy the criterion that she be a non-citizen in Australia to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’).

147               After the first-named First Respondent received a letter from the Minister’s delegate dated 29 August 2002 indicating that her application for a protection visa had been refused, she received an undated letter from a Mr Hussain at an address at Sefton (‘address number 1’) which included the following:

‘… confirm we have been shown a copy of the letter for the Department 29^th August 2002.

We have now prepared the appropriate documentation to be submitted at the Refugee Review Tribunal.

Once these are completed we will send them to you to be signed and returned.

At present the Tribunal is taking some nine months to locate a hearing date, however this period may be shortened depending on the number of members available to hear the matter.

Once a date has been allocated, you may elect to either attend at the hearing or have the case decided on the evidence before the tribunal.

This will then enable a quick decision to be made, which will allow you in the event that the application is rejected to then approach the Minister directly and then proceed for an application for ministerial intervention as per our previous advice.

…’

148               On 30 September 2002 the first-named First Respondent duly applied to the Tribunal for review of the Minister’s delegate’s decision. On 11 August 2003 the Tribunal decided to affirm the decision of the Minister’s delegate not to grant protection visas to the first-named First Respondent and the members of her family. That decision was handed down on 2 September 2003 and notified to the first-named First Respondent on that date by a letter addressed to the first-named First Respondent at an address in Regents Park (‘address number 3’). A copy of the Tribunal’s decision was also sent to the first-named First Respondent’s authorised recipient, Mr Hussain.

149               The first-named First Respondent’s Application for Review had included a s 441G authorisation in favour of Fahmi Hussain of ‘Bridge Port International, Level 25 Chifley Tower, Cr Hunter & Phillip St Sydney 2000’.

150               The decision of the Tribunal was reached in the absence of any evidence being presented by or on behalf of the first-named First Respondent at a hearing before the Tribunal to which she was duly invited.

151               The Tribunal’s decision included the following:

‘The applicant [referring to SZFDE] claims that if she returns to Lebanon her human rights will be violated. She claims that she cannot relocate because she cannot flee her persecutors in Lebanon. The applicant claims that she is a member of a particular social group being “Lebanese women who have transgressed the social mores of Islamic society” and that she will be persecuted for that reason. The applicant also claims that she will be persecuted for her imputed political opinion being her opposition to the Al Tawheed Islamic Party and for reasons of religion because of her failure to comply with Islamic principles.’

152               In the Tribunal’s ‘FINDINGS AND REASONS’ the following, inter alia, appeared:

‘In summary the applicant wife/mother claims that she has written and published newspaper articles criticising the activities of the fundamentalist Islamic groups including Tawheed in Lebanon. She claims that she has criticised the Islamic religion and its values and that she no longer wishes to be a Muslim because she believes that the Islamic religion mistreats women and she claims that the Islamic community would consider her to be an apostate. The applicant claims that she would be persecuted if she returns to Lebanon because she has been outspoken against the Islamic religion and the activities of the Islamic fundamentalists.

…

The Tribunal wished to discuss … independent evidence with the applicant as it appears that the protection which will be available to the applicant if she returns to Lebanon now or in the foreseeable future (sic).

…

… The applicant has not provided much detail and so it is not possible for the Tribunal to establish the relevant facts. The Tribunal wished to question the applicant during a hearing in order to ascertain the relevant facts to ascertain the extent of the applicant’s rejection of her faith and the extent of her criticism of her faith. The Tribunal notes her claim that the members of her Mosque were aware of her rejection of Islam but also notes that nothing other than a warning took place. The Tribunal wanted to question the applicant about this further in the light of the country information.

…

The applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.

The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

…’

153               The first-named First Respondent’s Application for a Protection (Class XA) visa had nominated an address for her in Sefton, being address number 1. This was also the address provided by her in her Application for Review to the Tribunal. In an affidavit affirmed by the first-named First Respondent on 7 April 2005, to which further reference will be made hereafter, she deposed to having moved from address number 1 to an address in Regents Park (‘address number 2’) in late 2002. A rental bond ‘Advice of Lodgement’ in respect of a bond lodged on 15 October 2002, an AGL Retail Energy Limited energy bill dated 19 November 2002 and a real estate agent’s letter regarding water usage dated 15 January 2003 were all sent to the second-named First Respondent at address number 2.

154               By mid 2003 the first-named First Respondent and her family had moved to address number 3. By the time when she affirmed her affidavit of 7 April 2005 the first-named First Respondent and her family had moved to another address in Regents Park (‘address number 4’).

155               At about 4.28 pm on 24 June 2003 a facsimile was sent from ‘Future Newspaper’ to the Tribunal ‘Attention MS Lilian Floris’ (sic). The facsimile was expressed to come from the first-named First Respondent. Its purpose was to notify the Tribunal of the first-named First Respondent’s new address, namely address number 3.

156               At about 3.51 pm on the following day namely 25 June 2003 a further facsimile was sent from ‘Future Newspaper’ to the Tribunal ‘Attention MS Lilian Floris’ (sic). This facsimile was said to have come from the first-named First Respondent and read:

‘My Solicitor Fahmi Hussain Address:

Bridge Port International

Level 25 - 2 Chifley Square Sydney 2000

PH: 9293 2851

Fax: 9293 2828’

157               Lillian Flores was the ‘contact officer’ at the Tribunal for the first-named First Respondent’s Application for Review to the Tribunal.

158               In her affidavit of 7 April 2005 the first-named First Respondent said that on 15 September 2003, Mr Hussain had written a letter to the then Minister in her name. The letter attached to the affidavit is seven pages in length and appears to be incomplete. It has the appearance of being a draft letter for transmission by the second-named First Respondent on behalf of the family. It is entitled ‘RE: Application for Consideration Section 417 of the Migration Act’. The document includes the following:

‘My wife [SZFDE] came from a professional background where she had completed not only her high school and also her university education where she initially trained and graduated in the field of accounting and worked in this field for many years.

My wife thereafter also had a great passion for graphic design and gained experience and worked in the field as a graphic designer.

My wife continued to gain experience and worked with publications in Lebanon including Ad Dawaer, copies of this newspaper are enclosed. My wife worked not only in graphic design but also as a journalist covering a variety of interesting writing of articles.

…

We travelled to Australia arriving on 27 February last year …

After lodging an application through the assistance of our migration agent [Ahmad Hemmad, who was identified in the visa application as a person authorised to act on the first-named First Respondent’s behalf in relation to the application in dealings with the Department. The authorisation included the sending by the Department to Ahmad Hemmad of communications, documents or notifications relating to her application that would otherwise have been sent to her] we proceeded to establish ourselves having the appropriate authority to work my wife was consulting with, an Australian Arabic publication known as The Future where she consulted as a graphic designer. Attached is a copy of a letter from her employer who is now prepared to engage her on a fulltime basis.

…’

159               The first-named First Respondent did not dispute the accuracy of the facts and matters set out in the form of letter dated 15 September 2003. In the circumstances, it can hardly be suggested that the two facsimile communications of 24 and 25 June 2003 emanated from any source other than the first-named First Respondent.

160               On or about 1 October 2002 the first-named First Respondent had received a further letter at address number 1 from Mr Hussain which was dated 1 October 2002 and referred to the application which had been made to the Tribunal. The letter included:

‘You will be notified in due course with an official letter which will confirm your details and provide you with a file number.’

161               After the first-named First Respondent’s Application for Review was lodged with the Tribunal on 30 September 2002, a letter acknowledging same and dated 1 October 2002 was sent by the Tribunal to the first-named First Respondent at address number 1 with a copy sent to Mr Hussain at the address provided. The letter stated, inter alia:

‘You should:

·        tell us immediately if you change your home address, your mailing address, your telephone number or if there is any change in the name or address of your Authorised Recipient. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice. …’

The letter indicated that it was accompanied by a number of documents being:

RRT brochure

Client Service Charter

“Appointment/Cancellation of Authorised Recipient” form

“Change of Address Details” form

Multilingual advice

162               On 17 March 2003 the Tribunal wrote to the first-named First Respondent indicating that Mr Hussain was no longer registered as a migration agent. That letter, directed to the first-named First Respondent at address number 1 was returned marked ‘Return to Sender’ and received back at the Tribunal’s office on 20 March 2003.

163               On 3 June 2003 the Tribunal wrote to the first-named First Respondent inviting her to a hearing of the Tribunal on 1 July 2003. The letter was directed to the first-named First Respondent at address number 1 with a copy sent to Mr Hussain at the address provided for him. The letter included the following:

‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above [referring to SZFDE, SZFDF, SZFDG and SZFDH] to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.

…

“Response to Hearing Invitation” form

Please read and complete the enclosed form carefully and:

·        tell us if you are coming to the hearing or not coming to the hearing

·        complete the “Witnesses” part of the form if you want the Tribunal to get oral evidence from another person; please note the Tribunal does not have to get evidence from any person you name

·        send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator

·        answer all the other questions on the form and return the completed form and any new documents or written arguments by 20 June 2003

We have enclosed a brochure that explains what will happen on the day of the hearing. …

If you have any questions, you can contact Lillian Flores on (02) 9951 5870. …’

164               The letter indicated that there were three enclosures being:

‘Response to Hearing Invitation’ form

‘What is A Hearing?’ brochure

Multilingual advice

165               It would appear that both the copy of the letter directed to the first-named First Respondent at address number 1 and the copy addressed to Mr Hussain were sent by registered post. On 5 June 2003 the copy sent to the first-named First Respondent at address number 1 was apparently returned marked ‘RETURN TO SENDER’ with an indication that the addressee had ‘Left Address’.

166               The first-named First Respondent’s affidavit affirmed 7 April 2005 included the following:

‘16. In the middle of 2003 I received a telephone call from Mr Hussain who said: “I have received a letter from the RRT. We need to talk about it”, or words to that effect. After that telephone call my husband and I met with Mr Hussain at my home which was then at [address number 3]. Mr El-Ashwah was also present and acted as an interpreter. At that meeting I recall seeing the letter at folios 98 and 99 of the court book filed in these proceedings. [The letter of 3 June 2003.]

17. During this meeting Mr Hussain said. “It is best that you do not go to the hearing at the Refugee Review Tribunal.”

I said: “Why, we need to tell my story. Are you sure its best not to go?” or words to that effect.

He said words to the effect:

“It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the RRT you will say something in contradiction to what I will write. Don’t worry. I’m doing what is best for you.”

18. I recall that my husband asked Mr Hussain: “Are you sure its best not to go to the RRT?” several times. I further recall that Mr Hussain invariably answered: “Trust me. It’s best not to go,” or words to that effect.

19. At the end of the meeting, which lasted about one and a half hours, I agreed not to attend the RRT hearing. Mr Hussain was my solicitor. I trusted him to do the best for me.

20. I did not attend the RRT hearing, and my application was rejected in September 2003. I paid Mr Hussein a total of $8,400 to act for me. In September 2003, when he said to me: “I am in some financial difficulty. Can you lend me $5,000.00?” I lent him the money. A few weeks later he asked me to lend him some more money. I refused and decided at that time to seek advice elsewhere. At some time after this I saw another solicitor in Parramatta. He said words to the effect: “Your case is extremely difficult. I can do nothing for you. You should go back to Lebanon.”

21. It was only after my RRT application was rejected that I was told, by Mr James Dagnall of the Legal Aid Commission, that I needed a migration agent to represent me at the RRT, that Mr Hussain’s registration as a migration agent had been cancelled in March 2002, and that his solicitor’s practising certificate had been cancelled in December 2001.’

167               As indicated above, the letter at folios 98 and 99 of the Court book to which reference was made in the affidavit was the letter from the Tribunal to the first-named First Respondent dated 3 June 2003 inviting her to a hearing scheduled for 11.30 am on Tuesday 1 July 2003. Whilst it is clear that the copy posted by registered post to her at address number 1 did not reach her, nevertheless, she became aware of its contents at some stage prior to 1 July 2003 when she was then living at address number 3. No doubt her awareness of it prompted her to send her change of address notifications to the Tribunal of 24 and 25 June 2003

168               The first-named First Respondent says that her English was and remains poor. When she was assisted by her interpreter, Mr El-Ashwah, she appears to have had no difficulty in communicating with Mr Hussain. At other times she communicated with him in English as best she could. He was not Arabic-speaking, as she was. It seems clear that at the one and a half hour meeting in mid 2003 at which Mr Hussain, Mr El-Ashwah, her husband and herself were present, the Tribunal’s invitation to a hearing was interpreted for her and fully understood by her.

169               The first-named First Respondent’s contention that the decision of the Tribunal handed down on 2 September 2003 was affected by fraud, the fraud being that of Mr Hussain, is said to have consisted of Mr Hussain representing himself as a solicitor and migration agent, when he was not, and having advised the First Respondents that it would be best for them not to attend the proposed hearing before the Tribunal on 1 July 2003, when Mr Hussain knew that such advice was erroneous and that a failure to attend the hearing would be fatal to the First Respondents’ application.

170               As it transpires by a letter dated 5 December 2001, the Law Society of New South Wales notified Mr Hussain that his then current practising certificate as a solicitor had been cancelled by the Council of the Law Society of New South Wales pursuant to the provisions of ss 37(1)(f) and 38 of the Legal Profession Act 1987 (NSW).

171               Then, by a letter dated 18 March 2002, the Migration Agents Registration Authority had advised Mr Hussain that it had decided to cancel his registration on the basis that he had not complied with the Code of Conduct prescribed under s 314 of the Act and that he was ‘not a person of integrity or otherwise not a fit and proper person to give immigration assistance’.

172               The proposed hearing before the Tribunal did not take place on the date notified in the letter of 3 June 2003, namely 1 July 2003.

173               On 27 June 2003 the Tribunal acknowledged the change of contact details for the first-named First Respondent as notified on ‘24 June 2003’ by writing to her at her newly notified address, being address number 3. A copy of the letter acknowledging the change of contact details was also sent to Mr Hussain at the notified address for him.

174               On the same day the Tribunal also wrote to the first-named First Respondent inviting her to a hearing of the Tribunal at 10 am on Tuesday 5 August 2003. That letter, dated 27 June 2003, included the following:

‘On 3 June 2003 we sent you a letter inviting you to a hearing of the Tribunal. We have received no response from you. We have now found a more recent mailing address for you and are sending this letter to you at that address. Please tell us immediately you change any of your addresses.

The Tribunal has set a new date for the hearing.

The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above [referring to all of the First Respondents] to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.

…

“Response to Hearing Invitation” form

Please read and complete the enclosed form carefully and

·        tell us if you are coming to the hearing or not coming to the hearing

…’

The invitation to a hearing on the revised hearing date would appear to have been accompanied by:

‘Response to Hearing Invitation’ form

‘What is A Hearing?’ brochure

Multilingual Advice

175               Apart from forwarding the letter by registered post to the first-named First Respondent at address number 3, a copy was also sent by registered post to Mr Hussain at the address notified for him.

176               On 2 July 2003 Mr Hussain wrote to the first-named First Respondent at address number 3. The letter provided as follows:

‘RE: YOUR APPLICATION BEFORE THE TRIBUNAL

I am writing to confirm that you should now have been notified by the tribunal that your matter has been sent down for hearing on 5 August 2003 at 10 am.

You should also have received a response to the hearing which we suggest you should complete.

Please contact the writer to arrange a convenient time to discuss this matter.’

177               There is no evidence before the Court to indicate what, if any, discussion took place between the first-named First Respondent and Mr Hussain between 2 July 2003 and 29 July 2003.

178               At about 10.06 am on 30 July 2003 a ‘Response to Hearing Invitation’ form duly signed by the first-named First Respondent and dated 29 July 2003 was sent by facsimile from ‘Future Newspaper’ to the Tribunal. It would appear that this form was completed for the first-named First Respondent by Mr Hussain. It was completed so as to indicate that the first-named First Respondent did not want to attend the Tribunal’s proposed hearing. It also indicated ‘we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable us to appear before it’.

179               There can be no doubt that the ‘Response to Hearing Invitation’ form so completed was sent by the first-named First Respondent by means of the facsimile machine of her then employer, the publisher of the Australian Arabic publication known as ‘The Future’.

180               In the proceedings below, the first-named First Respondent was not cross-examined about the rather bland terms of the letter from Mr Hussain of 2 July 2003. Furthermore, she gave no evidence about and was not cross-examined in relation to the circumstances surrounding her execution and transmission of the ‘Response to Hearing Invitation’ form dated 29 July 2003.

181               It is abundantly clear that the first-named First Respondent received, in the circumstances described above, the Tribunal’s invitation to the hearing scheduled for 11.30 am on 1 July 2003, was aware of the proposed time and place for the hearing and deliberately refrained from attending that hearing.

182               It is equally clear that the Tribunal duly gave the first-named First Respondent an invitation to the proposed hearing scheduled for 10 am on 5 August 2003, and that she responded to it, indicating that she consented to the Tribunal deciding the review of her application without any appearance by her before the Tribunal.

183               As indicated above, the Tribunal’s decision affirming that of the Minister’s delegate not to grant protection visas to the First Respondents was made on 11 August 2003 and handed down on 2 September 2003, on which date a copy of the Tribunal’s decision and reasons were sent to the first-named First Respondent, with a copy to Mr Hussain.

184               According to the first-named First Respondent an application was then made by Mr Hussain on 15 September 2003 to the Minister asking him to substitute a more favourable decision for that of the Tribunal under s 417 of the Act. That section relevantly provided:

‘417(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

…’

185               It would appear that such application did not find favour with the Minister.

186               On 29 November 2004 the First Respondents instituted proceedings in the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the decision of the Tribunal in reliance upon the alleged fraud of Mr Hussain. That application was decided favourably to the First Respondents on 20 December 2005, the relevant hearing having taken place on 19 September 2005.

187               In cross-examination the first-named First Respondent gave the following evidence in the Federal Magistrates Court:

Counsel for the Minister: ‘I’ll try and ask it in an admissible way. When Mr Hussein said to you that he was proposing to take a different approach and to write to the Minister, did you understand that he was suggesting to you that you should seek a visa through the Minister instead of pursuing your application in the Tribunal?’

SZFDE through her interpreter: ‘Yes.’

Counsel: ‘And did you understand therefore that he was advising you to accept that the Tribunal wouldn’t give you a visa and to take a different avenue instead?’

SZFDE through her interpreter: ‘Yes.’

Counsel: ‘And was that the advice that you eventually accepted when you agreed not to go to the hearing?’

SZFDE through her interpreter: ‘I didn’t accept it easily but he kept insisting on it and saying that this is the best way for me.’

188               The second-named First Respondent also gave evidence before the learned Federal Magistrate. His evidence under cross examination included:

Counsel for the Minister: ‘… at the end of the conversation you and your wife eventually decided to accept his advice. Is that right?’

SZFDF through his interpreter: Yes, we took his advice’

189               In respect of the evidence of the first and second-named First Respondents the learned Federal Magistrate said at [29]:

‘The applicants were cross-examined by counsel for the Respondent Minister but were unshaken in their accounts. Both applicants impressed me favourably in their evidence. I observed them in the witness box and they appeared to me to be witnesses of truth. I accept their evidence.’

190               There was no evidence before the learned Federal Magistrate that provided a causal link between any misrepresentation that Mr Hussain may have expressly or impliedly made to the effect that he was a registered migration agent and that he held a practising certificate as a solicitor and the decision of the first-named First Respondent not to attend the scheduled hearing before the Tribunal on 1 July 2003, which had been the subject of the one and a half hour discussion with Mr Hussain at some time between 3 and 27 June 2003 or her decision not to attend the scheduled hearing, fixed by the Tribunal on 27 June 2003, for 5 August 2003.

191               Furthermore, there was no evidence before the learned Federal Magistrate that the opinion which Mr Hussain expressed at the gathering which took place between 3 and 27 June 2003, upon which the first-named First Respondent is said to have relied, was not an opinion which he held at that time.

192               Notwithstanding the first-named First Respondent’s expressed desire to attend a hearing before the Tribunal to enable her story to be told, Mr Hussain advised her that her best interests would be served by absenting herself as ‘they’, presumably meaning the Tribunal, were ‘not accepting any visa applications at all’ at that time.

193               It is not axiomatic that a person in the position of the first-named First Respondent would be better off by attending a Tribunal hearing and giving evidence, rather than staying away, avoiding questions that may engender unhelpful answers and relying upon an approach to the Minister under s 417 of the Act to secure a favourable outcome. However, it is difficult to accept that advice to stay away could properly be founded upon the proposition that ‘They are not accepting any visa applications at all at the moment’.

194               The first-named First Respondent submits that this proposition, advanced by Mr Hussain, amounted to ‘fraud’ and led to her ultimate non-attendance before the Tribunal on 5 August 2003.

195               No evidence was given before the learned Federal Magistrate as to the nature of the evidence which the first-named First Respondent might have given had she attended a hearing before the Tribunal on the appointed date.

196               Counsel for the First Respondents submitted that had it not been for Mr Hussain’s advice, to which reference has been made, she would not have signed and transmitted the ‘Response to Hearing Invitation’ form as she did and, further, she would not have refrained from appearing at the hearing at the time and place scheduled for it on 5 August 2003.

197               The learned Federal Magistrate (see [2005] FMCA 1979):

      (a) Found, at [47] that Mr Hussain had acted fraudulently in his    dealings with the First Respondents for personal gain. He also found, at [50] that the First Respondents were ‘aware of the invitation to the hearing [without indicating whether that was a reference to the invitation of 3 June 2003 for 1 July 2003 or the invitation of 27 June 2003 for 5 August 2003 or both. However, a later reference to ‘the letter inviting the applicants to attend the hearing’, at [53], clearly indicates that the learned Federal Magistrate was focussing upon the invitation of 3 June 2003 for the hearing on 1 July 2003. His judgment was silent in respect of the significance of Mr Hussain’s somewhat bland letter of 2 July 2003 and also the invitation of 27 June 2003 to attend the appointed hearing on 5 August 2003, to which he referred at [4]], but were dissuaded from attending by the fraudulent behaviour of Mr Hussain’. His actions ‘deprived the invitation to the hearing from its quality of being a meaningful invitation under s 425’.

      (b) Held, at [49], that the decision of the High Court in Taylor v Taylor (1979) 143 CLR 1 entitled him to hold that a victim of fraudulent advice, emanating from her own migration advisor, could be heard to complain that she had been the victim of a procedural impropriety or that she had been denied natural justice (cf per Lord Bridge of Harwich in Al-Mehdawi v Secretary of State for the Home Department (‘Al-Mehdawi’) [1990] 1 AC 876 at 898).

      (c) Held, at [52]-[53] that the Tribunal ‘erred in sending out the letter inviting the applicants to attend the hearing’ [referring to the letter of 3 June 2003 inviting the first-named First Respondent to attend a hearing at the appointed time and place on 1 July 2003]. The learned Federal Magistrate’s process of reasoning was that the Tribunal knew or ought to have known that Mr Hussain was no longer a registered migration agent and, this being the case, the Tribunal was not entitled to give the first-named First Respondent an invitation to appear before the Tribunal complying with the requirements of s 441G(1) of the Act.

      (d) Held, at [56], that the Tribunal committed jurisdictional error by continuing to forward correspondence to Mr Hussain as the first-named First Respondent’s authorised recipient under s 441G of the Act ‘knowing that his registration [as a registered migration agent] had been cancelled’. The learned Federal Magistrate opined, at [57], that if the Tribunal becomes aware that a migration agent has had his or her registration cancelled it ‘should not continue to communicate with an applicant through that former agent’.

The nature of proceedings before the Tribunal

198               It is important to remember that proceedings before the Tribunal are inquisitorial rather than adversarial (cf cases coming before adjudicators under s 19 of the Immigration Act 1971-1999 (UK): MNM v The Secretary of State for the Home Department [2000] INLR 576 at [19] and Guideline 6 of The Surendran Guidelines referred to therein.)

199               The Tribunal Member conducting an inquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an Applicant. In a case such as that brought by the first-named First Respondent under her application for review to the Tribunal, it was for her to advance whatever evidence or argument she wished to advance and for the Tribunal to decide whether her claim that she was a refugee, within the meaning of the Refugees Convention had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which she may have chosen not to embark upon (per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57]-[58]).

200               It is no part of the Tribunal’s function to serve as an Applicant’s ‘nursemaid’ (see De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at [8]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]; R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 at 345).

201               In dealing with an application for review of a decision by a delegate of the Minister, refusing to grant a Protection (Class XA) visa, the Tribunal is obliged to have regard to ss 65(1) and (36)(2) of the Act. These relevantly provided:

‘65(1) After considering a valid application for a visa, the Minister:

(a) if satisfied that:

…

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; …

… is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.

36(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol …’

202               Article 1 of the Refugees Convention provided that the term ‘refugee’ should apply to any person who:

‘(2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and …, owing to such fear, is unwilling to avail himself of the protection of that country; …’

203               It is important to emphasise the distinction between the Tribunal as an inquisitorial body and courts of law which are concerned with the adjudication of adversarial disputes. The rule of fairness expressed in Browne v Dunn (1894) 6 R 67 has no application to proceedings in the Tribunal, nor do other rules of fairness which are commonplace in adversarial litigation, for example, the rule that a party is entitled to have orders made against him in his absence set aside ex debito justitiae where the other party has sought and obtained ex parte relief and failed to do so with candour.

204               In the case of the Tribunal no question arises as to whether it has inherent powers to set aside its own decisions such as may be possessed by a superior court of record. Furthermore, no questions of fairness will arise such as may apply to orders secured by one party to adversarial litigation, upon the evidence of that party alone, against the other party, who may have been absent at the time when the orders were made. For an example of such a situation see Taylor v Taylor (1979) 143 CLR 1 (‘Taylor v Taylor’) where an order against a husband, for the transfer of the matrimonial home to his former wife, made in the Supreme Court of New South Wales at an ex parte hearing, of which, due to the negligence of his solicitors, the husband had no notice, was set aside. An order varying the Supreme Court’s order in respect of the matrimonial home, which had been made ex parte against the former wife in the Family Court of Australia due to a failure by the wife and her lawyers to appear at the relevant hearing they erroneously believing the matter was to come before the Supreme Court rather than the Family Court, was also set aside. This case is to be compared with Al-Mehdawi where the House of Lords denied a person, who had been an appellant before an adjudicator, judicial review of orders made in his absence as a result of his solicitor’s negligence, they having written to him at his old address to advise him of the hearing date. At 898 Lord Bridge of Harwich said:

‘… there are many familiar situations where one party to litigation will effectively lose the opportunity to have his case heard through the failure of his own legal advisers, but will be left with no remedy at all except against those legal advisers. I need only instance judgments signed in default, actions dismissed for want of a prosecution and claims which are not made within a fixed time limit which the tribunal has no power to extend. In each of these situations a litigant who wishes his case to be heard and who has fully instructed his solicitor to take the necessary steps may never in fact be heard because of his solicitor’s neglect and through no fault of his own. But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule. Again, take the case of a county court action where a litigant fails to appear at the hearing because his solicitor has neglected to inform him of the date and consequently judgment is given against him. He can at best invite the court in its discretion to set aside the judgment and it is likely to do so only on the terms that he should pay the costs thrown away. Yet, if it can be said that he has been denied natural justice, he ought in principle to be able to apply for certiorari to quash the judgment which, if he is personally blameless, should be granted as a matter of course.

These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.’

See also SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs (‘SZEYH’) (2006) 150 FCR 397 at [21] – [25] and [30].

205               In the context of administrative decision-making there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision, through their mistaken view or that of their legal advisers, could amount to procedural unfairness. There would seem to be strong policy grounds why this should not be the case (per Kiefel J in Freeman v Health Insurance Commission (2004) 141 FCR 129 (‘Freeman’) at 144 [52]).

206               In adversarial litigation, where an absent party later complains about orders made in his or her absence, it does not follow, as a matter of right, that the orders will be set aside. Normally, the absent party will be bound by the orders made against him or her in his or her absence if, with notice of the proceedings, he or she disregarded the opportunity to appear and participate in the trial of the proceedings.

207               The relevant principles in relation to the setting aside of orders made in a party’s absence have been conveniently summarised in the judgment of Leggatt LJ in Shocked v Goldschmidt [1998] 1 All ER 372 at 381 as follows:

‘… (1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision. (2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing. (3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so. (4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success. (5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it. (6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour. (7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences. (8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.’

Roch and Morritt LJJ agreed with the reasons for judgment of Leggatt LJ.

208               In relation to a decision of the Tribunal, no statutory power exists akin to that conferred upon the Family Court by s 79A(1) of the Family Law Act 1975 (Cth) as amended at that time, which was referred to, but not invoked, by the High Court in Taylor v Taylor namely:

‘Where, on application by a person affected by an order made by a court under section 79, the court is satisfied that the order was obtained by fraud, by duress, by the giving of false evidence or by the suppression of evidence, the court may, in its discretion, set aside the order …’

209               Whilst at common law, judgments obtained by fraud in adversarial proceedings will be set aside, the relevant fraud which must be established is a fraud upon the court, not a fraud upon a party to the proceedings before the court in which the party having the benefit of the judgment has had no involvement (see Microsoft Corporation v Crosslink Marketing Group (CMG) Pty Limited [2005] FCA 1817 at [21]). The fraud must be directly material to the judgment (Monroe Schneider Associates (Inc) v No. 1 Raberem Pty Limited (1992) 37 FCR 234 at 242).

The scope of s 425 in the review of protection visa decisions

210               Section 425 of the Act is to be found in Division 4 of Part 7 of the Act. Part 7 deals with the review of protection visa decisions. Division 4 of that Part is entitled ‘Conduct of review’ and deals with the manner in which the review of decisions covered by, inter alia, s 411(1)(c), which is applicable in the present case, should be conducted by the Tribunal. Section 425 provides as follows:

‘425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.’

211               It is implicit from the terms of s 425(1) that not only must an appropriate invitation be extended but also it should be followed by a corresponding hearing at which the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review will be afforded to the applicant, subject to the provisions of s 425(3). However, any shortcomings of the Tribunal in respect of the provision of a corresponding hearing will fall to be determined according to the rules of natural justice, the content of which must be ascertained in the context of the relevant statutory power. Any such shortcomings will raise issues which are separate and distinct from the sufficiency of the invitation required by s 425(1) (see Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (‘NAHF’) (2003) 128 FCR 359 at 365 [28]).

As the Full Court said in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (‘SCAR’) at 561 [35]:

‘… s 425 is directed to the invitation, rather than the hearing itself …’

To like effect the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (‘SZFHC’)[2006] 150 FCR 439 said at [41]:

‘… The current version of s 425 is in different terms [from that considered in Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243]. It requires that the Tribunal invitean applicant to appear, and provides a method which the Tribunal must follow to satisfy this requirement.’ (emphasis in original)

In VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (‘VNAA’)(2004) 136 FCR 407 the Tribunal had given the required invitation to the applicants seeking review by posting it, by registered post, to both the mailing address provided and also to the residential address given on the application. The latter copy was returned marked ‘Return to Sender’ and ‘no such address’. The applicants claimed that they did not receive either copy. Sundberg and Hely JJ with whose reasons for judgment Gyles J expressed his general agreement, said at [14]:

‘… Section 425 merely requires the Tribunal to invite an applicant to appear. …’

Their Honours proceeded to conclude that there had been no failure on the part of the Tribunal to comply with s 425. They said at [15]:

‘There was no breach of s 425, as alleged in the notice of appeal. The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. See NAOZ [NAOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 820] at [19]. They were sent to the appellants’ address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. A Full Court so decided in NADK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [14]‑[16]. Section 426A empowered the Tribunal to decide the review in the absence of the appellants and without taking any further action to allow or enable them to appear before it. We agree with the primary judge when he said:

“If the applicants’ argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicant. To proceed in the absence of such affirmative satisfaction would, on the applicants’ argument, convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernible in ss 441A and 441C and must, I consider, be rejected.” ’

See also SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] – [12].

The conclusion reached by the Full Court in VNAA is consistent with that part of the judgment of another Full Court in Liu v Minister for Immigration and Multicultural Affairs (‘Liu’) (2001) 113 FCR 541 which held, at [47] that there was no absolute right conferred on an applicant by the Act to appear before the Tribunal.

212               Insofar as the Full Court in SCAR may have found that s 425(1) required more of an invitation to appear before the Tribunal than compliance with the terms of the Act, it was, in my opinion plainly wrong and should not be followed. The statute does not impose any additional obligation requiring an invitation to be ‘real and meaningful’ or, simply, ‘meaningful’.

213               When it comes to giving the requisite notice, s 425A mandates that it must contain certain matter specifying the day on which and the time and place at which the applicant is scheduled to appear, and that it must be given in a certain way. Section 425A also deals with the length of notice that is required and the need for a statement to the effect of s 426A.

214               Section 426A empowers the Tribunal to make decisions on applications for review without taking any further action to allow or enable an applicant to appear before it where the applicant has been invited under s 425 to appear before the Tribunal and does not appear before it on the day on which, or at the time and place at which, the applicant is scheduled to appear. Section 426A(2) allows the Tribunal to reschedule an applicant’s appearance before it to enable an applicant to appear, before it reaches its decision.

215               Section 426 amplifies the requirements of s 425A in respect of the content of the relevant notice which must be given and also makes provision for an applicant’s response to a notice, where the applicant wants the Tribunal to obtain oral evidence from a person or persons nominated by the applicant.

216               Subsections 441A(1) and (4) allow for notices required by s 425A to be dispatched by prepaid post. Section 441G requires such notices to be given to the applicant’s authorised recipient, if any, whether or not a copy is also given to the applicant. By virtue of s 441G(2) a document given by the Tribunal to an authorised recipient is taken to have been given to the applicant. Under s 441C a document dispatched by prepaid post is, relevantly, taken to have been received by the addressee seven working days (in the place of the relevant address) after the date of the document.

217               In SCAR an applicant for review had appeared before the Tribunal by video link from the Woomera detention centre but, unbeknown to the Tribunal, he had been medicated and was suffering extreme distress after being informed of his father’s recent death. A Full Court held that, given the findings of fact made by the Primary Judge to the effect that the applicant seeking review was not in a fit state to represent himself before the Tribunal, it was clear that the invitation he received under s 425 of the Act was ‘not a meaningful one’. Accordingly, the Full Court held that the applicant ‘did not receive the fair hearing required by the Act’ and thus it made a ‘jurisdictional error’. In the circumstances it held that the decision of the Tribunal was invalid.

218               The Court in its reasons said at [33]:

‘Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) ALD 395 at [31].’ (emphasis added)

219               Whilst the Court found that the invitation which had been received by the applicant in SCAR was not a ‘meaningful’ one and that the Tribunal had not complied with s 425, its reasoning suggests that there was no deficiency in the invitation or the manner in which it was given, rather, the applicant was denied an opportunity to appear at the corresponding hearing so as to give evidence and present arguments relating to the issues arising in relation to the decision under review and that denial, unwittingly occasioned by the Tribunal’s procedures and the presence of the applicant in the Woomera Detention Centre, resulted in jurisdictional error.

220               The distinction between the giving of an invitation and the corresponding hearing was stated by counsel for the appellant in De Rong Chen v Minister for Immigration and Multicultural Affairs (‘Chen’) [2001] FCA 1671 at [13] as follows:

‘The appellant’s first contention was that (where it applies: see s 425(2)) s 425(1) as now in force equally imposes an obligation upon the Tribunal to give a visa applicant the opportunity to give evidence, and the added obligation to give the visa applicant the opportunity to present arguments, in support of the claim for a protection visa. It was put that the obligation to give these opportunities is necessarily implied by the need to make the invitation for which s 425(1) now provides meaningful. ….’

In Chen counsel for the Minister acknowledged for the purposes of that case that s 425(1) did impose upon the Tribunal an obligation to give the appellant the opportunity to give evidence and to present arguments. Accordingly, the Court did not consider it necessary to address in detail the nature and extent of the acknowledged obligation ([14] and [16]) or indeed, whether and why an obligation should be implied.

221               In Minister for Immigration and Multicultural Affairs v Bhardwaj (‘Bhardwaj’) (2002) 209 CLR 597 the agent of an applicant for review by the Immigration Review Tribunal had sent a letter by facsimile to that Tribunal advising that the applicant was unable to attend the scheduled hearing and was seeking a later hearing date. As a result of an error on the part of the Tribunal the letter was not brought to the attention of the Tribunal Member determining the application who proceeded with the hearing in the absence of the applicant, affirming the decision under review. Plainly, the opportunity to give evidence and present arguments must be a reasonable one and the applicant was denied such an opportunity.

222               A failure to accede to a reasonable request for an adjournment amounted to procedural unfairness and a breach of the rules of natural justice. In Bhardwaj Gaudron and Gummow JJ said at [43]:

‘The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the … [relevant] decision was, thus, not a “decision on review” for the purposes of … the Act’.

223               In Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395, which was cited with approval in SCAR, Goldberg J observed at [31] that an:

‘invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal’.

With great respect to his Honour, the sufficiency of an invitation under s 425(1) should be capable of being addressed the moment that the invitation has been given. In this case that would mean, as soon as it had been posted. The provision by the Tribunal at the corresponding hearing of an inadequate interpreter is another matter altogether.

224               Contrary to the finding of the Full Court in SCAR at 561 [37], NAHF is not authority for the proposition that the obligation imposed by s 425 will have been breached where an invitation has been given but an applicant is unable to attend at the appointed time because of ill health. In NAHF the Tribunal had given s 425 invitations on or about 15 January 2002 to the husband and wife, each of whom were applicants for protection visas, to attend a hearing of the Tribunal on 8 February 2002. Shortly before that date the wife suffered her fourth miscarriage and consequential reactive depression. Her doctor had advised that she needed bed rest until 20 March 2002. The Tribunal was notified of the wife’s condition and asked to delay the proposed hearing until both the husband and wife could attend. By letter dated 8 February 2002 the Tribunal agreed to postpone the hearing but only until 18 February 2002. The Tribunal notified the relevant migration agent that the husband must attend. The husband did attend the Tribunal hearing on 18 February 2002, but the wife did not. Hely J held at [39] that the Tribunal’s failure to postpone the wife’s hearing until a date after 20 March 2002 constituted a denial of natural justice. There was no finding that the invitation given to the wife did not satisfy the requirements of s 425(1) of the Act. On the contrary, his Honour said at 365 [28]:

‘The refusal to adjourn the hearing does not lead to the conclusion that the RRT failed to invite the applicant to appear before the RRT.’

225               It may be noted that the decision of the Court in SCAR in this regard was questioned, but that question was not decided, in NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [34]; see also SZEYH at [16] – [20].

226               In SCAR the Court placed reliance upon the decision of French J in W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788. In that case, there had been a number of inadequacies in the interpretation of the evidence of the applicant before the Tribunal. The applicant alleged that the interpretation of the applicant’s statements into the English language was of such poor quality of English and contained errors of interpretation so that the applicant was deprived of a proper opportunity of presenting his case to the Tribunal and was deprived of a hearing before the Tribunal. It was said that this constituted a failure by the Tribunal to observe procedures required by the Act to be observed. French J noted that there was no provision in the Act or Regulations which dealt expressly with the use of interpreters in Tribunal hearings. His Honour then proceeded to quote s 425 which had come into force on 1 June 1999. Ultimately, his Honour concluded that there had been a failure to comply with the requirements of s 425. He said at [35]:

‘It is plain that there was a variety of factors operating upon the Tribunal's determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However I cannot exclude the possibility that had the accepted defects in translation to which Mr Madani deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief. I am satisfied on the evidence and on the balance of probabilities that the level of interpretation was such as to constitute a failure on the part of the Tribunal to comply with the requirements of s 425. The first ground of review is therefore made out.’

Earlier at [31] his Honour had said:

‘The invitation must remain open.’

With great respect to his Honour, it is clear from the decision of the later Full Court in VNAA that compliance with s 425 is a different matter from a failure on the part of the Tribunal to afford a proper hearing to an applicant who seeks to avail himself or herself of the opportunity afforded by the requisite invitation.

227               The Court in SCAR also relied upon the judgment of Ryan J in Applicant VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100. In that case the Tribunal had, however innocently, induced a belief in the applicant that the Tribunal’s reservations about certain matters would not adversely affect its determination even by way of its evaluation of the applicant’s credit. Nevertheless, the Tribunal in its reasons revived its disbelief of the applicant’s account of those matters as a basis for rejecting the applicant’s assertions. That rejection was central to the Tribunal’s ultimate conclusion that it was safe for the applicant to return to Afghanistan. As a consequence, the applicant and her adviser were precluded from making further submissions or putting further information in relation to matters which were decisive of the result (see at [54]).

228               Given those facts his Honour found it necessary to consider whether the Tribunal had failed to comply with a requirement of the Act. At [62] he said:

‘… I am persuaded on balance that the Tribunal in the present case has failed to comply with s 425 of the Act.’

In reaching this conclusion his Honour placed significant reliance upon the reasons for judgment of Tamberlin and Katz JJ in Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 which, of course, had been decided under a different statutory regime. Before reaching his ultimate conclusion his Honour said at [62]:

‘As Tamberlin and Katz JJ observed in Cho, a discouraging effect of that kind can preclude the Tribunal from complying with s 425.’

229               With great respect his Honour should not have found that there had been a failure to comply with the new s 425. His findings went to the question of whether the applicant had truly been afforded a hearing by the Tribunal and not to the question of whether or not a proper invitation had been given to the applicant as required by s 425. His Honour’s conclusion at [62] is inconsistent with VNAA.

230               Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322, a decision of the Mansfield J, was another case upon which the Full Court relied in SCAR. In that case his Honour was not persuaded that the applicant before the Tribunal was prevented from giving evidence because of any incompetence on the part of the interpreter. His Honour did not consider that the Tribunal had made findings adverse to the applicant by reason of any erroneous interpretation of the applicant’s evidence. Nor was he persuaded that the Tribunal’s adverse view of the applicant’s reliability was contributed to by any inadequacies in the interpretation of the applicant’s evidence at the hearing.

231               In coming to these conclusions his Honour approached the matter on the basis that the observations, which were obiter, of the Full Court in Liu at [44]-[45]in relation to s 425 of the Act were correct. In my opinion the more recent Full Court decision of VNAA correctly defines the extent of the Tribunal’s obligations under s 425.

The other relevant statutory provisions

232               Sections 425A, 426 and 426A, which are within Division 4 of Part 7 of the Act, provide as follows:

‘425A(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant:

(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement of the effect of section 426A.

426 (1) In the notice under section 425A, the Tribunal must notify the applicant:

(a) that he or she is invited to appear before the Tribunal to give evidence; and

(b) of the effect of subsection (2) of this section.

(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

426A(1) If the applicant:

(a) is invited under section 425 to appear before the Tribunal; and

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.’

233               Division 7A of Part 7 of the Act is entitled ‘Giving and receiving review documents’. Section 441G empowers persons applying for review of an RRT-reviewable decision to authorise another person to, inter alia, receive documents in connection with the review. Section 441G provides as follows:

‘441G(1) If:

(a) a person (the applicant) applies for review of an RRT-reviewable decision; and

(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.

(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.

(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.’ (emphasis in original)

234               Section 441A, which is also within Division 7A, provides for methods whereby the Tribunal may give documents to other persons. Relevantly, for present purposes, it provides:

‘441A(1) For the purposes of provisions of this Part or the regulations that:

(a) require or permit the Tribunal to give a document to a person (the recipient); and

(b) state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

…

(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the document; and

(b) by prepaid post or by other prepaid means; and

(c) to:

(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or

(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.

…’ (emphasis in original)

Consideration

235               With great respect to the learned Federal Magistrate, his findings referred to in sub-paragraphs (c) and (d) of paragraph 56 above are misconceived. Whether an ‘authorised recipient’ within the meaning of s 441G of the Act is a registered migration agent, a de-registered migration agent, an unregistered migration agent or any other person who may or may not be a migration agent, has no bearing whatsoever upon the statutory obligation imposed upon the Tribunal to ‘give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant’.

236               The observations of Kiefel J in Freeman and of Jacobson J in SZEYH would tend to support an Al-Mehdawi approach to the consequences of an applicant’s non-attendance at a scheduled hearing before the Tribunal where, due to the conduct of the applicant’s solicitor or agent, such applicant was unaware of the date, time and place at which a scheduled hearing was to take place and, consequently, did not appear. However, in the circumstances of the present case neither Taylor v Taylor nor Al-Mehdawi have any application because the first-named First Respondent had received the invitation given to her by the Tribunal in accordance with ss 425, 425A, 426, 441G and 441A of the Act, she was aware that an opportunity was being afforded to her to give evidence and present arguments relating to the issues arising in relation to the decision under review at the date, time and place at which she was scheduled to appear, she consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it, and she deliberately refrained from attending the scheduled hearing.

237               The first-named First Respondent having failed to appear before the Tribunal on the day on which, and at the time and place at which, she was scheduled to appear, it was empowered by s 426A(1) of the Act to make a decision on the review without taking any further action to enable or allow her to appear before it. The learned Federal Magistrate erred in finding that Mr Hussain’s actions ‘deprived the invitation to the hearing from its quality of being a meaningful invitation under s 425’. As indicated above, no more is required by s 425 than that an invitation under that section comply with the requirements of ss 425(1), 425A and 426 of the Act. The Tribunal’s invitation of 27 June 2003, given by it to the first-named First Respondent in accordance with the requirements of the Act, did just that. The Tribunal did not commit jurisdictional error by proceeding to decide the application for review as it did. Any fraud perpetrated by Mr Hussain on his clients was of no relevance.

238               As indicated above, the sufficiency of an invitation can be addressed the moment the invitation has been given. Viewed in that way, any fraudulent advice that may have been given to the first-named First Respondent by her de-registered migration agent who no longer held a practising certificate as a solicitor, could not bear upon the question of whether or not an invitation had been duly given to the first-named First Respondent to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

239               The First Respondents had no rights to natural justice inconsistent with the provisions of the Act to which reference have been made.

240               Whilst it is strictly unnecessary to consider the application of s 425(3) of the Act in the circumstances, it seems clear that the first-named First Respondent did not have an entitlement to appear before the Tribunal on 5 August 2003 following the transmission by her of her facsimile of 30 July 2003, consenting to the Tribunal deciding the review without the first-named First Respondent appearing before it. On one construction of s 425, sub-section (3) would only apply where the relevant consent under sub-section 2(b) was given before the Tribunal extended its invitation to appear in accordance with s 425(1). In this case that would relevantly be before 26 June 2003. However, it seems clear that the legislative intention was that sub-section (3) should have effect provided that one or other of the subparagraphs of sub-section (2) applied prior to the time fixed for the scheduled hearing to take place, in this case 5 August 2003.

241               In my opinion the appeal should be allowed, the orders of the learned Federal Magistrate should relevantly be set aside (orders 3, 4 and 5 of 20 December 2005) and the application filed in the Federal Magistrates Court of Australia on 24 November 2004 should be dismissed. The First Respondents should be ordered to pay the Appellant’s costs of the appeal and of the proceedings in the Federal Magistrates Court of Australia.

Associate:

Dated: 3 October 2006