FEDERAL COURT OF AUSTRALIA
SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152
FRAUD – the need for care in making findings of fraud in the area of public law
Constitution s 75(v)
Migration Act 1958 (Cth) Pt 7, ss 48A, 281, 314, 411, 412, 414(1), 425
Legal Profession Act 1987 (NSW) ss 37(1)(f), 38
Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180 cited
Lazarus Estates Ltd v Beasley [1956] 1 QB 702 cited
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 cited
NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 160 cited
NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 cited
Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82 referred to
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; 81 ALJR 1401 distinguished
SZLHP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 512 of 2008
BRANSON, LINDGREN AND GRAHAM JJ
19 August 2008
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 512 of 2008 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
SZLHP Appellant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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BRANSON, LINDGREN AND GRAHAM JJ |
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DATE OF ORDER: |
19 August 2008 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 512 of 2008 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
SZLHP Appellant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGES: |
BRANSON, LINDGREN AND GRAHAM JJ |
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DATE: |
19 August 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Branson J
Introduction
1 The appellant, who claims to be a citizen of the People’s Republic of China (PRC), arrived in Australia on 30 December 1997 having travelled on an apparently false Indonesian passport issued in the name Denny Dendeng Kalalo.
2 On 30 January 1998 he signed an application for a protection visa which gave his name as Denny Dendeng Kalalo. The protection visa application asserted that he had left Indonesia to avoid persecution as an “overseas Chinese”. His application for a protection visa was refused by a delegate of the Minister. This decision was affirmed on review by the Refugee Review Tribunal (“the Tribunal”) on 24 January 1999.
3 By an application dated 11 September 2007, which was later amended, the appellant sought judicial review by the Federal Magistrates Court of the decision of the Tribunal. He claimed that the decision of the Tribunal was “induced and affected by fraud”. For the purposes of this application the appellant placed reliance on his citizenship of the PRC and claimed to have fled the PRC in 1997 fearing persecution on religious grounds as a Christian. He asserted that his migration agent had told him that:
1. as he had no Chinese identity papers she would use the Indonesian passport to lodge his application for a protection visa;
2. his story of fearing persecution in China as a Christian was irrelevant because he held an Indonesian passport; and
3. he should not attend the Tribunal hearing because his inability to speak Indonesian would reveal that he was not Indonesian with the consequence that he would lose his case and be deported.
4 The Federal Magistrates Court dismissed the appellant’s application with costs. The learned Federal Magistrate concluded that the appellant was not entitled to rely on his own fraud, or the fraud of his migration agent of which he had knowledge and in which he was complicit, to establish the invalidity of the Tribunal’s decision. His Honour additionally stated that, even if the appellant had established jurisdictional error in the Tribunal, he would have refused relief on the grounds:
(a) of the appellant’s deception of both the Minister and the Tribunal; and
(b) of his delay in commencing the judicial review proceeding.
Notice of Appeal
5 The appellant has appealed to this Court from the judgment of the Federal Magistrates Court. The notice of appeal is not helpfully drawn. However, by his written submissions the appellant identified the issues in the appeal in the following way:
(a) did the Federal Magistrate err in distinguishing SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64;
(b) even if the answer to (a) is “no”, did his Honour err in finding that the appellant had been party to the fraud on the Tribunal;
(c) would his Honour have erred had he withheld relief from the appellant on the grounds that:
(i) he had deceived both the Minister and the Tribunal by making a bogus claim under a false identity; and
(ii) the delay in commencing the judicial review proceeding was unconscionable.
SZFDE v MINISTER FOR IMMIGRATION AND CITIZENSHIP
6 The appellants in SZFDE were a wife and husband and their children. Their claims for protection visas were based upon the first appellant’s claim to fear persecution in their home country of Lebanon because of her questioning of the position of women in Islamic tradition.
7 The Tribunal had affirmed the decision of a delegate of the Minister not to grant them protection visas noting that, although invited to do so, the wife had not attended a scheduled Tribunal hearing.
8 The appellants sought judicial review of the decision of the Tribunal on the ground that its decision was affected by the fraud of a Mr Hussain. Mr Hussain was said to have represented to the appellants that he was a solicitor and a registered migration agent. In fact, by the time of the appellants’ application to the Tribunal, Mr Hussain’s practicing certificate and his registration as a migration agent had been cancelled. Evidence was accepted that at a meeting with Mr Hussain to discuss the Tribunal’s invitation to attend at a hearing, Mr Hussain said to the appellants 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 [Tribunal] you will say something in contradiction to what I will write. Don’t worry. I am doing what is best for you.
9 The Federal Magistrate found that Mr Hussain had acted fraudulently in his dealings with the appellants for personal gain and that the appellants had been dissuaded from attending the Tribunal hearing by Mr Hussain’s fraudulent behaviour. The Federal Magistrates Court set aside the decision of the Tribunal. However, the Full Court of this Court, by a majority decision, allowed the Minister’s appeal from the judgment of the Federal Magistrates Court. An appeal from the judgment of the Full Court was allowed by a unanimous High Court.
10 The High Court at [45] found that the inference was “well open” that Mr Hussain had acted as he did for self-protection, lest in the course of the Tribunal hearing there be revealed his apparently unlawful conduct in charging fees for giving immigration assistance while not a registered migration agent. The High Court at [47] identified the ultimate issue as “the effect upon the tribunal’s decision‑making process, for which the Parliament provided in Pt 7 of the Act [ie the Migration Act 1958 (Cth)], of the fraud of Mr Hussain. Their Honours stated at [49] that the fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. At [51]-[52] the High Court summarised the position in the following way:
…In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the tribunal.
The consequence is that the decision made by the tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj [ie Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51]].
Consideration
11 The appellant submitted that the Federal Magistrate erred by creating a qualification to the approach adopted by the High Court in SZFDE, namely that where an appellant for review knew of the fraud or participated in it, there was no jurisdictional error. He argued that the High Court had eschewed any distinction based on the identity of the person perpetrating the fraud or the person on whom it is practiced.
12 The appellant’s submission is too broad to be accepted. It would, as the appellant both recognised and intended, allow a person successfully to contend that, by reason only of the person’s own fraudulent conduct, the jurisdiction of the Tribunal remained constructively unexercised. Such an approach is inconsistent with the long established principle that courts do not allow a person to maintain an advantage obtained by the person’s own fraud (Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713). It would also significantly undermine the legislative restraint on a person making more than one application for a protection visa (see s 48A of the Migration Act 1958 (Cth)).
13 The reasons for judgment of the High Court in SZFDE can not be understood in isolation from the factual circumstances there under consideration. In SZFDE at [28] the High Court drew attention to the fact that the case concerned “third party fraud” where the applicant for judicial review had not colluded in the fraud practiced on the review body and did not then learn of the fraud but complained of it in a subsequent proceeding. That is not this case.
14 In this case the appellant knowingly signed an application for a protection visa that was made in a false name and which falsely asserted that he was a citizen of Indonesia. His explanation for his conduct in this regard is that his migration agent said to him words to the effect:
You are entitled to stay in Australia but you have to lodge a protection visa application. Since you have no Chinese identity papers I will use your Indonesian passport to lodge the protection visa application.
He claimed that as he had no idea how to apply for a protection visa he fully authorised the migration agent to deal with his case.
15 It may be accepted that the appellant, who had recently arrived in Australia and spoke no English, did not know how to apply for a protection visa. However, nothing in the evidence provides any basis for an inference that the appellant was not aware that his conduct rendered him complicit in an attempt to deceive whatever Australian authority was responsible for dealing with applications for protection visas. Indeed, it is clear that he was well aware that he was applying for a protection visa in a false name and on a false basis.
16 The appellant was also aware that the application made by him to the Tribunal for review of the decision of the delegate of the Minister repeated the false claim that he was a citizen of Indonesia. The appellant had by this time been in Australia for nearly twelve months. He claims that he tried to tell his migration agent his “Christian story” but that she said “you are holding an Indonesian passport so your story is irrelevant”. He also claims that his migration agent said words to the following effect to him:
Do not go to the RRT hearing. You do not speak Indonesian so they will know that you are not Indonesian and they will refuse you (sic) case and deport you on the spot. You should get a doctor’s certificate so you do not have to attend the hearing.
17 The appellant acknowledged that shortly thereafter he obtained a document from Dr Joseph T Q Truong which certified that Denny D Kalalo was suffering from back pain and would be unfit for duty for two nominated days in early January 1999. He gave this certificate to his migration agent, as it may be inferred, so that she could provide it to the Tribunal. The inference is irresistible that the appellant was aware that his conduct rendered him complicit in an attempt to deceive the Tribunal.
18 The appellant’s circumstances are thus different from the circumstances considered by the High Court in SZFDE in at least one critical respect. The appellants in SZFDE were not complicit in any attempt to deceive the Tribunal. Rather they were persuaded not to accept the invitation of the Tribunal to attend a hearing by the false advice of Mr Hussain that the Tribunal was not accepting any visa applications at that time. This advice, the High Court inferred, was given fraudulently by Mr Hussain to conceal his own unlawful conduct. By contrast, the appellant knowingly embarked on a course of conduct calculated to deceive the relevant Australian authorities as to his true identity, citizenship and personal history. Moreover, he took no steps, as it seems, for nearly a decade to disclose the true position to the Department of Immigration or any other Australian authority.
19 In SZFDE the High Court at [32] noted the significance of procedural fairness for the principles concerned with jurisdictional error sourced in s 75(v) of the Constitution. For this reason, it categorised the subversion of the requirement of s 425 of the Act that the Tribunal invite an applicant to a hearing as “of the first magnitude” in the due administration of Part 7 of the Act. The Minister in that case accepted that if, before the Tribunal made its decision, it had appreciated the true position but nevertheless gone ahead, this would have raised a real question as to the miscarriage of the Tribunal’s power (see SZFDE at [36]). That is, as the High Court observed in the passage set out in [10] above, the fraud of Mr Hussain was fraud “on” the Tribunal because it disabled the Tribunal from the due discharge of its obligations of affording the appellants procedural fairness.
20 In the circumstances of this case, appreciation by the Tribunal of the true reason why the appellant was unwilling to attend the Tribunal hearing could hardly be suggested to raise an issue of the miscarriage of the Tribunal’s power. The appellant was not fraudulently deceived by the migration agent as to the true reason why the migration agent did not want him to attend the Tribunal hearing. The reason why the migration agent advised the appellant not to attend the Tribunal hearing was that his attendance would make plain the falsity of the grounds on which he sought review of the decision of the Minister’s delegate. The appellant understood this and cooperated with the migration agent by obtaining the medical certificate in attempted explanation of his failure to attend. There was no relevant fraud “on” the Tribunal in the sense discussed by the High Court in SZFDE.
21 In my view, no error has been shown to affect the conclusion of the Federal Magistrate that the decision of the Tribunal was not affected by jurisdictional error. Nor, in my view, has it been demonstrated that the Federal Magistrate erred in principle in concluding that, in any event, it would be appropriate to refuse the appellant the discretionary relief sought by him both on the ground of his own deceptive conduct and his delay in commencing the proceeding.
22 While it is not in dispute that the appellant did not receive a copy of the Tribunal’s reasons for decision until a date in September 2007, after he was detained by the Department of Immigration, it is plain that he knew that the decision was adverse to him. There is no reason to conclude that a copy of the Tribunal’s reasons for decision were not sent to him at the post office box to which the Tribunal had previously sent letters addressed to him. He appreciated that his immigration status was “illegal”. It may be inferred that he decided against taking steps to obtain a copy of the Tribunal’s reasons for decision as this might lead the immigration authorities to him.
Conclusion
23 I would dismiss the appeal with costs.
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I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. |
Associate:
Dated: 19 August 2008
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 512 of 2008 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
SZLHP Appellant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGES: |
BRANSON, LINDGREN AND GRAHAM JJ |
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DATE: |
19 AUGUST 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Lindgren J
24 I have had the advantage of reading in draft the reasons for judgment of Branson J and of Graham J. I agree in the result at which their Honours have arrived and, in general, with their reasons. The facts of the case are recounted by their Honours.
25 The appellant relies on SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64 (SZFDE). That was a case of fraud perpetrated on the Refugee Review Tribunal and on the appellants by a “third party”, Mr Fahmi Hussain, who had falsely represented himself to be a solicitor and licensed migration agent (see SZFDE at [7]). Mr Hussain perpetrated the fraud on the appellants for personal gain at their expense (at [40]).
26 The High Court agreed (at [47]) with French J, who had dissented in the Full Court (Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 399), that the ultimate issue was the effect of Mr Hussain’s fraud on the decision-making process for which the Parliament had provided in Pt 7 of the Migration Act 1958 (Cth). Their Honours observed (at [49], [51]) that Mr Hussain’s fraud had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.
27 I agree with Branson J at [18] and Graham J at [93], that the fact that the appellants in SZFDE were not complicit in any attempt to deceive the Tribunal distinguishes that case form the present one. In the present case, the Federal Magistrate made the same distinction: SZLHP v Minister for Immigration and Citizenship [2008] FMCA 359 at [99].
28 The appellant accepts that if he had initiated or was a party to the fraud, he would have no cause for complaint: see, for example, NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 160 at [27], [30], [31]; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 at [13], [14]. It would be perverse if a person whose fraud practised on the Tribunal had caused it not to accord that person natural justice could be heard to complain.
29 Counsel for the appellant submits, however, that what appears to be fraud by his client was in reality the product of the fraud of the migration agent. In substance, and paradoxically, counsel for the appellant says that the worse the appellant’s apparent fraud, the stronger the evidence of his subjection to the influence of the migration agent. Clearly, this contention raises a question of fact.
30 The learned Federal Magistrate was aware that this was counsel’s point, and that his purpose was to show that his client was entitled to the benefit of the High Court’s decision concerning third party fraud in SZFDE. Thus, in the course of the hearing before the Federal Magistrate, counsel for the appellant objected to questions directed to showing that his client had engaged in a fraudulently deceptive course of action on the ground that cross-examination directed to that end was a waste of time because it was common ground that his client had apparently done so. His case was that his client had been duped by, and had relied on the advice given by, the fraudulent migration agent.
31 In my opinion, however, the submissions made by counsel for the appellant are inconsistent with the Federal Magistrate’s findings.
32 The Federal Magistrate said (at [100]) that the present appellant “was a party to the fraud” and that his fraudulent activity began before the migration agent became involved. His Honour was referring to the appellant’s having left China under a different name on a Chinese passport, having obtained an Indonesian passport in another name, having entered Australia on a false passport with a false identity, and having completed his arrival card under that false identity.
33 His Honour continued as follows:
[101] What the migration agent has done is carry on that fraud with the knowledge and complicity of the Applicant. From the Applicant’s own evidence he agreed with the migration agent that an application should be made for a protection visa using his false identity and nationality. It followed that there had to be a concocted story to justify a well-founded fear of persecution for a Convention reason because an Indonesian national could not claim for refugee status on the basis he feared persecution in China for reason of his religion. The Applicant knew and was party to the fraud on the Minister’s delegate.
[102] As to the fraud on the Tribunal; the Applicant knew there was to be an application to the Refugee Review Tribunal using his bogus Indonesian identity. He knew that the migration agent had said that his real story was irrelevant because he was claiming to be Indonesian.
[103] The Applicant, from his own evidence, knew there was to be a Tribunal hearing. Whilst the migration agent may have told him not to attend the hearing because her involvement in the deception may be found out, the Applicant knew that if he went to the Tribunal hearing his own deception would be found out. He could not speak Indonesian and could not pretend that he was Indonesian.
[104] It was the Applicant who obtained the medical certificate in his false identity in order to avoid attending the Tribunal hearing. He knew why he was seeking the medical certificate. It was to manufacture an excuse to avoid the hearing and avoid being found out.
…
[106] I am also of the view that I should refuse relief on discretionary grounds. The Applicant was a party to the fraud on the Tribunal. He knew that the application for review was in his false identity. It would be contrary to the public interest for the Applicant to gain, as a result of his deliberate deception of the Minister and the Refugee Review Tribunal.
34 The Federal Magistrate’s findings, properly understood, were to the effect that the appellant was a knowing, independent and voluntary co-perpetrator of the fraud on the Tribunal. On this basis, his Honour correctly distinguished SZFDE (at [99]).
35 I agree with Branson J and Graham J that the appeal should be dismissed with costs.
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I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. |
Associate:
Dated: 19 August 2008
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 512 of 2008 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
SZLHP Appellant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGES: |
BRANSON, LINDGREN AND GRAHAM JJ |
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DATE: |
19 August 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
GRAHAM J:
The need for care in making findings of fraud
36 This case highlights the need, when making findings of fraud in matters arising in the area of public law, for judicial officers to heed the admonition of French J in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [74] which was cited with approval by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; 81 ALJR 1401 (‘SZFDE’) at [41] (. French J’s admonition is to be found in the penultimate sentence of [74] where his Honour said:
‘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.’
37 SZFDE’s evidence as contained in her affidavit of 7 April 2005 had included the following:
‘16. In the middle of 2003 I received a telephone call from Mr Hussain [her migration agent/solicitor] 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 … 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. [A letter of 3 June 2003 inviting SZFDE to a hearing of the Tribunal on 1 July 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.”’
(See 154 FCR 365 at [166]; emphasis added)
38 In cross-examination before the learned Federal Magistrate, SZFDE gave the following evidence:
‘Counsel for the Minister: …. 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.’
(See 154 FCR 365 at [187])
39 SZFDE’s husband, identified as SZFDF, also gave evidence before the learned Federal Magistrate which 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’
(See 154 FCR 365 at [188])
40 In respect of the evidence of SZFDE and SZFDF the learned Federal Magistrate saidat [29]:
‘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.’
(See [2005] FMCA 1979 at [29])
41 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).
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 Migration Act 1958 (‘the Act’) and that he was ‘not a person of integrity or otherwise not a fit and proper person to give immigration assistance’.
(See 154 FCR 365 at [170]-[171])
42 The learned Federal Magistrate found that the migration agent in SZFDE had acted fraudulently in his dealings with SZFDE for personal gain (see [2005] FMCA 1979 at [47]).
43 The High Court noted (see 81 ALJR 1401 at [40]) that the Federal Magistrate had held that Mr Hussain had acted fraudulently in his dealings with SZFDE and her husband for personal gain, that he had extracted money from them under false pretences and that they had been dissuaded from attending the Tribunal hearing ‘by the fraudulent behaviour of Mr Hussain’.
44 The High Court considered that the inference was well open, upon the evidence, that the migration agent in SZFDE acted as he did:
‘for self-protection, lest in the course of a Tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions imposed by Pt 3 Div 2 of the Act particularly by s 281’
Amongst other things s 281 precluded a person in Mr Hussain’s position from asking for or receiving a fee for giving immigration assistance, including immigration legal assistance. He no longer held a practising certificate as a solicitor and his registration as a migration agent had been terminated.
(See 81 ALJR 1401 at [45]-[46]).
45 Alas, in the present case(SZLHP v Minister for Immigration & Citizenship [2008] FMCA 359) (‘SZLHP’), the learned Federal Magistrate failed to heed French J’s admonition and specify what was said that was fraudulent, how it was fraudulent, and how it was acted upon. He failed to identify any advice that was dishonest in the sense that the migration agent did not honestly hold the belief that the advice was correct when she gave it.
46 In SZLHP the Federal Magistrate noted at [2] that the appellant claimed, firstly, that the decision of the Minister’s delegate refusing to grant the appellant a protection visa was ‘affected and induced by fraud on the part of his migration agent’ and, secondly, that the decision of the Refugee Review Tribunal (‘the Tribunal’) ‘was induced and affected by fraud on the part of the migration agent’.
47 Under the heading ‘The Applicant’s Grounds of Review’ the learned Federal Magistrate referred to ‘Particulars’ in which it was said that the migration agent representing SZLHP had ‘concocted without reference to SZLHP’ the matters set out in the application which were relied upon to ground the application. It was contended that the Minister’s delegate’s decision was thereby affected and induced by fraud on the part of the migration agent.
48 It was then said that towards the end of 1998 the migration agent advised the appellant that a date for a hearing with the Tribunal had been set and proceeded to fraudulently advise the appellant not to attend. Under the heading ‘Particulars’ the learned Federal Magistrate recited at [35]-[37] the appellant’s claims in this regard as follows:
‘35. Particulars:
a) The migration agent told the [appellant] that as the application had been made under a false Indonesian identity and as the [appellant] spoke only Mandarin, the falsity of the application would be discovered if the [appellant] attended the hearing.
b) The migration agent told the [appellant] that he would be arrested and deported at the hearing when the falsehood was discovered.
36. The [appellant] did not attend the hearing of the Tribunal because of what the migration agent told him; in circumstances where he believed he had no other choice.
37. The Tribunal was denied the opportunity to meet the [appellant] and be presented with oral evidence because of the fraudulent advice of the migration agent.’
49 The learned Federal Magistrate proceeded to address the evidence and then to summarise the appellant’s submissions at [79] and [81] as follows:
‘79. The [appellant] submits that the Court should find that:
a) The migration agent had real or constructive knowledge that the [appellant’s] non-attendance at the hearing would be fatal to the [appellant’s] chances of being granted a protection visa.
b) The migration agent advised the [appellant] not to attend the hearing despite having accepted money from the [appellant] for assistance.
c) The migration agent’s advice not to attend the hearing was motivated by a desire to avoid her fraudulent actions being revealed at the hearing.
…
81. The [appellant] submits that the decision of the Tribunal was actually induced and affected by third party fraud in two ways:
a) The decision was based wholly on the written application which was fraudulent in nature and content because of the actions of the migration agent and;
b) The immediate consequence of the fraud of the migration agent was to frustrate the operation of the legislative scheme to afford natural justice to the [appellant].’
50 Plainly, in this case, there was no representation to the effect ‘they [referring to the Tribunal] are not accepting any visa applications at all at the moment’, which one might have thought had to be incorrect, as occurred in the case of SZFDE. Furthermore, there was no question of SZLHP’s migration agent having asked for and received a fee for giving immigration assistance in contravention of s 281 of the Act. This was not a case of concealment of wrongful conduct, such as occurred in SZFDE, for self-protection – the Application for a Protection Visa (866) made no mention of the involvement of a migration agent. What is more, this was not a case where the relevant migration agent had borrowed money from the migration agent’s client.
51 In the present case there are a number of distinct matters which work against a conclusion that, by reason of fraud on the part of SZLHP’s migration agent, the Tribunal was ‘disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review’. The relevant state of affairs in this case did not merit the description of the practice of fraud ‘on’ the Tribunal. There was no ‘effective subversion of the operation of s 425’ of the Act nor was there any subversion of ‘the observance by the Tribunal of its obligation to accord procedural fairness to the applicant for review’. (cf 81 ALJR 1401 at [32] and [51])
52 Counsel for the respondent Minister submitted that the case ofSZLHP was clearly distinguishable from SZFDE. He relied upon the appellant having ‘knowingly participated in putting forward to the Minister’s Department and to the Tribunal a claim that he knew was fraudulent’. He also submitted that there were discretionary reasons for refusing relief, namely:
‘(a) the [appellant] attempted to practise deception upon the Minister and upon the Tribunal by a bogus claim and a false identity. …
(b) the [appellant’s] delay in commencing proceedings.’
(See (2005) FMCA 1979 at [96])
The conclusions of the Federal Magistrate in the court below
53 In the foregoing context the learned Federal Magistrate said at [98] under the heading ‘Conclusions’:
‘98. This is a case where there is evidence of fraudulent behaviour by the [appellant’s] migration agent who has been made aware of the allegations against her in this case but has chosen to make no comment. … [For my part I have some difficulty in following the reasons for the Federal Magistrates Court of Australia putting the migration agent on notice of the case and apparently expecting her to respond to the ill-defined “allegations against her” in the course of SZLHP’s case. She had no right to intervene and make a “comment”.]
99. In my view this case can be distinguished from SZFDE on its facts. In SZFDE, which I heard at first instance, the [appellant] was in no way party to the fraud by the purported migration agent but a victim of it.
100. In this case the [appellant] was a party to the fraud [undefined]. The fraudulent actions began before the migration agent was involved. The [appellant] left China under a different name on a Chinese passport. In Indonesia he obtained a false Indonesian passport in another name. He entered Australia on a false passport with a false identity and completed his arrival card in that false identity.
101. What the migration agent has done is carry on that fraud with the knowledge and complicity of the [appellant]. From the [appellant’s] own evidence he agreed with the migration agent that an application should be made for a protection visa using his false identity and nationality. It followed that there had to be a concocted story to justify a well-founded fear of persecution for a Convention reason because an Indonesian national could not claim for refugee status on the basis he feared persecution in China for reason of his religion. The [appellant] knew and was party to the fraud on the Minister's delegate.
102. As to the fraud on the Tribunal; the [appellant] knew there was to be an application to the Refugee Review Tribunal using his bogus Indonesian identity. He knew that the migration agent had said that his real story was irrelevant because he was claiming to be Indonesian.
103. The [appellant], from his own evidence, knew there was to be a Tribunal hearing. Whilst the migration agent may have told him not to attend the hearing because her involvement in the deception may be found out, the [appellant] knew that if he went to the Tribunal hearing his own deception would be found out. He could not speak Indonesian and could not pretend that he was Indonesian.
104. It was the [appellant] who obtained the medical certificate in his false [Indonesian] identity in order to avoid attending the Tribunal hearing. He knew why he was seeking the medical certificate. It was to manufacture an excuse to avoid the hearing and avoid being found out.
104. I agree with [counsel for the Minister’s] submission that it cannot be that an [appellant’s] own fraud or a fraud to which he is a party would result in the Tribunal's decision being set aside. It would be absurd if all knowingly false claims were incapable of being the subject of a valid refusal. …’
54 The learned Federal Magistrate also considered the refusal of relief on discretionary grounds and indicated that, if the appellant was otherwise able to establish jurisdictional error, then, because of:
(a) the appellant’s ‘deception on both the Minister and the Tribunal by making a bogus claim and a false identity’ and
(b) the appellant’s ‘unconscionable delay in commencing proceedings’
relief should be refused.
The facts
55 The appellant, who has been identified for the purposes of these proceedings as ‘SZLHP’, submitted an application for a Protection (Class XA) visa to the Department of Immigration and Multicultural Affairs in or about December 2006 which contained a declaration apparently made by the appellant on 6 November 2006. By a letter dated 10 January 2007 from a delegate of the Minister for Immigration and Multicultural Affairs to the appellant, the appellant was advised that he was prevented by s 48A of the Act from making a further visa application such as had been submitted by him.
56 In the application as submitted to the Department in 2006 the appellant contended that he had been born on 17 March 1970 (elsewhere in the application shown as 27 March 1970), in Jiang Jing Fu Qing in the People’s Republic of China.
57 The appellant’s case is that he arrived in Australia, at Brisbane airport, from Indonesia on 30 December 1997 travelling on a false passport in the name of Denny Dendeng Kalalo said to have been issued to a person so named by the Republic of Indonesia on 3 September 1997. That passport included a photograph of the appellant.
58 On 12 February 1998 the appellant lodged an Application for a Protection Visa (866) with the Department of Immigration and Multicultural Affairs in the name of Denny Dendeng Kalalo which showed his date of birth as 9 December 1966, being, one may assume, the date of birth of the person named in the passport. The Application bore a signature above the date 30 January 1998 on page 10 of Part B of the Application and a similar signature on page 12 of Part C of the Application, again above date 30 January 1998. Both signatures appeared to be similar to the signature of the bearer of the Indonesian passport to which reference has been made. The 1998 application was refused by the Minister’s delegate on 19 February 1998 whereupon an Application for Review was lodged with the Tribunal on 26 March 1998 again in the name of Denny Dendeng Kalalo.
59 The appellant swore an affidavit on 11 September 2007 in which he deposed to having been introduced to a female migration agent in Bankstown whose name was ‘something like AN Qi’ (later identified as Grace Xiao Yan Chen). In that affidavit he deposed to the migration agent having asked him for $1,500 which he says that he paid her. (In a later affidavit sworn 8 October 2007 amounts totalling $1,500 and other amounts were mentioned.) He said that after attempting to tell her his story, she apparently interrupted him and said words to the effect ‘Just give me the money I will do the rest’. He went on to say ‘I never signed any protection visa documents’. However, in his later affidavit he said that when he first met the migration agent it was at her house in Bankstown where he paid her $500. The appellant says that the migration agent said to him words to the effect:
‘You are entitled to stay in Australia but you have to lodge a protection visa application. Since you have no Chinese identity papers I will use your Indonesian passport to lodge the protection visa application’.
60 The appellant proceeded to depose as follows:
‘I signed the statement but used the signature on my false Indonesian passport. This is the only document I signed with the Migration Agent.’
61 He later obtained a medical certificate from a Dr Joseph T Q Truong, a medical acupuncturist, who said that he was suffering from ‘Back Pain’ and would be ‘unfit for duty’ for two days. That certificate was apparently obtained by the appellant on 4 January 1999. Importantly, the appellant obtained the certificate not in his own name, but rather in that of ‘DENNY D. KALALO’ a name which he undoubtedly provided to Dr Truong. The appellant provided that medical certificate to his migration agent. A letter was then sent to the Tribunal on 4 January 1999, which referred to a hearing that had been fixed for Tuesday 5 January 1999. It purported to be signed by Denny Dendeng Kalalo and indicated ‘Unfortunately I am very sick and I am afraid that I will not be able to attend the hearing as pre-scheduled tomorrow’. The medical certificate was attached to the letter. The evidence of the appellant when cross-examined was that the signature on the letter to the Tribunal was not his signature. However, he later qualified that by saying, in response to the question ‘That is your handwriting is it not?’, ‘Can’t remember …. Don’t know’.
62 The Tribunal responded to the letter of 4 January 1999 and attached medical certificate by re-scheduling the hearing of the Application for Review from 5 January 1999 to 21 January 1999. The appellant did not attend the Tribunal hearing on 21 January 1999 whereupon the Tribunal proceeded to affirm the decision not to grant Denny Dendeng Kalalo a protection visa on 24 January 1999, the relevant decision being handed down on 27 January 1999.
63 The present appeal is brought by the appellant from the decision of Federal Magistrate Scarlett, handed down on 31 March 2008, which followed a hearing on 18 December 2007. The proceedings in the Federal Magistrates Court of Australia commenced with the filing of an ‘Application for an extension of time to FILE AND serve notice of review of application’ on 12 September 2007. The Application was accompanied by a ‘DRAFT APPLICATION UNDER JUDICIARY ACT 1903 AND MIGRATION ACT 1958’ in which it was asserted that the appellant ‘was never notified of the 1998 decision of the RRT that is the subject of this application’. The principal relief sought was a declaration that the decision of the Tribunal upholding the decision of the Minister’s delegate not to grant a protection visa was void and that the application for review which had been filed in the Tribunal be remitted to the Tribunal for further consideration according to law. The primary ground identified in the draft Application was that the appellant’s case fitted the situation and findings in SZFDE where third party fraud had been perpetrated by the migration agent.
64 The ‘Application for an extension of time to FILE AND serve notice of review of application’ filed 12 September 2007 was superseded by an ‘AMENDED APPLICATION UNDER MIGRATON ACT’ which was filed in the Federal Magistrates Court of Australia on 5 November 2007. In that Amended Application constitutional writ relief and declaratory relief was sought in respect of both the decision of the Minister’s delegate and also the decision of the Tribunal.
65 The learned Federal Magistrate ordered that the Application be dismissed and that the appellant pay the respondent Minister’s costs fixed in the sum of $9,250.00.
66 At the hearing on 18 December 2007 the two affidavits of the appellant to which reference has been made were read and rulings were made on objections as to parts of them.
67 The appellant does not appear to have been cross-examined in respect of the signature appearing on page 10 of Part B of the Protection Visa Application filed 12 February 1998. However, he was cross-examined about the signature appearing on page 12 of Part C of that application. He agreed that it was his signature, albeit one imitating the signature in the Indonesian passport, rather than his own signature which he used when making his declaration of 6 November 2006 on page 13 of Part C of the later Protection (Class XA) visa application form, which was rejected by the Department.
68 When cross-examined about his statement in his affidavit of 11 September 2007 ‘I never signed any protection visa documents’, the appellant said ‘Okay, yes. I signed it once.’ When it was put to him that that was not what he had said in his affidavit the appellant responded ‘Possible I made a mistake’.
69 The appellant’s evidence continued as follows:
Counsel for the Minister: ‘… let’s be clear about this, what you’re saying in that paragraph is that you never signed any documents in relation to your application. That’s right isn’t it?’
Appellant through interpreter: ‘You mean applied for refugee?’
Counsel for the Minister: ‘That’s right.’
Appellant through interpreter: ‘I only signed once.’
Counsel for the Minister: ‘Yes, but that’s not – in that paragraph, you don’t tell us that you only signed once, you say you never signed any protection visa documents. That’s right isn’t it?’
Appellant through interpreter: ‘Possible I make a mistake. I was in a rush and I helped by a friend in relation to translation.’
70 An Application for Review in the name of Denny Dendeng Kalalo had been lodged with the Tribunal on 26 March 1998. That application bore a signature against the words ‘Applicant’s signature’ which was similar to that shown as the signature of the bearer of the Indonesian passport issued in the name of Denny Dendeng Kalalo. Against the signature the date ‘20/3/98’ was recorded.
71 The Application for Review indicated, somewhat inconsistently, that a Mandarin speaking interpreter would be needed to assist the appellant. It also indicated that Denny Dendeng Kalalo, the person making the application for review, did not have an adviser who was authorised to act for the applicant for review in relation to the application (for example a lawyer or a migration agent).
72 The Application for Review suggested that the person seeking review was born in Indonesia and was of Indonesian nationality/citizenship.
73 The appellant was cross-examined before the learned Federal Magistrate about the handwriting on the Application for Review against the words ‘Applicant’s signature’ and the word ‘Date’ at the foot of the ‘Applicant’s declaration’. Evidence was given as follows:
Counsel for the Minister: ‘The handwriting I am pointing to about a third of the way down the page, that handwriting is yours is it not?’
Appellant through interpreter: ‘I can’t remember. I only remember I signed it once at the bad person’s home.’
The somewhat pejorative reference to the ‘bad person’ was plainly a reference to the appellant’s migration agent whom he said had a name ‘something like AN Qi’ (Grace Chen).
The appellant’s evidence was that the first time he met her was in her home at Bankstown, the second time was ‘in her car’ and the third time again ‘in her car’. According to the appellant’s evidence he did not learn that the protection visa application in the name of Denny Dendeng Kalalo had been rejected until he received a telephone call from his migration agent ‘about 3 weeks after’ he visited the migration agent’s home at Bankstown and ‘signed the statement’. It seems clear that when the appellant gave evidence in cross-examination ‘I only remember I signed it once at the bad person’s home’ he was speaking of the signature which he applied to the Application for a Protection Visa (866) in the name of Denny Dendeng Kalalo and not the later Application for Review which was lodged with the Refugee Review Tribunal on 26 March 1998.
74 The appellant’s affidavits upon which he relied in the Federal Magistrates Court relevantly included:
First Affidavit
‘4. [the second paragraph numbered 4] … I started to tell her [the migration agent] all about being persecuted as a member of a leading underground church family but the agent said something like “Just give me the money – I will do the rest”. She would not listen to my whole story so I know it could not be in my protection visa application. …
5. [the second 5] Months later my migration agent told me that I had a hearing with the RRT and said something like “you should not go to the hearing because you will not win and they will arrest you at the hearing”. So I did not go.’
Second affidavit
‘31. The first time I met her was in her house in a street in Bankstown where I paid her $500. She said to me words to the effect of “you are entitled to stay in Australia but you have to lodge a protection visa application. Since you have no Chinese identity papers I will use your Indonesian passport to lodge the protection visa application”. I had no idea how to apply so I fully authorised the Migration Agent to deal with my case. …
32. After about 3 weeks I received a phone call from the Migration Agent who said “your application has been rejected”.
33. The second time I met the Migration Agent was in her car. The Migration Agent said she would lodge an application to the Refugee Review Tribunal (“RRT”) for review of the for me (sic). I paid her $1,000 but signed nothing.
34. I tried to tell the Migration Agent my Christian story, but the Migration Agent said “you are holding an Indonesian passport so your story is irrelevant”. The Migration Agent did not tell me what she wrote about my story.
35. The Migration agent then said to me words to the effect: “Do not go to the RRT hearing. You do not speak Indonesian so they will know you (sic) that you are not Indonesian and they will refuse you (sic) case and deport you on the spot. You should get a doctor’s certificate so you do not have to attend the hearing”
36. Shortly after I went to a doctor to get a medical certificate and gave it to the Migration Agent some time before the hearing date.
37. The third time I met with the Migration Agent was in her car, after I had been refused by the RRT. The Migration Agent told me that the RRT had refused my case but she never gave me any notification in writing. She said I could apply to the Federal Magistrates’ Court but it would cost $3000. I did not have this amount of money.
38. The Migration Agent said that a better way was to submit a request to the Minister in my Indonesian name and she asked for $200. She said “this is standard procedure”. I never heard from the Migration Agent again, but I was too scared to go and confront her. I never knew if the Migration Agent ever wrote to the Minister, or if the Minister accepted or did not accept my request.
39. I tried to contact the Migration Agent a couple of times but with no success. I was afraid that I may get myself exposed if I argued with the Migration Agent, because I knew my status was illegal.
40. At the beginning I asked if I could change to my proper name but the Migration Agent said word to the effect “No, because you have no proof of being Chinese”. I had no idea what to do so I listened to the Migration Agent. The Migration Agent never told me to get identity papers from China.
41. I never attended any hearing and never received any letters from the Minister, Department of Immigration, the RRT or Migration Agent. The Migration Agent said that I could not talk about China because I was holding an Indonesian passport. …’
75 The only connection between the appellant and the Application for Review in the name of Denny Dendeng Kalalo which was made on 26 March 1998 was:
(a) the appellant apparently paid the migration agent $1,000 after the migration agent informed him that the Application for a Protection Visa (866) had been rejected and that she would lodge an application to the Tribunal for review;
(b) the appellant was advised by the migration agent not to go to the Tribunal hearing as he did not speak Indonesian so the Tribunal would know that he was not Indonesian, his Application for Review would be refused and he would be deported ‘on the spot’. In his first affidavit his response was ‘so I did not go’. In his second affidavit no mention was made of his response to the advice which he received.
(c) the appellant was advised to obtain a doctor’s certificate, which he did, and which he gave to his migration agent. He may also have signed the letter to the Tribunal of 4 January 1999, enclosing Dr Truong’s medical certificate in respect of Denny D Kalalo suffering ‘Back Pain’, in which ‘Denny Dendeng Kalalo’ alleged that he was ‘very sick’ and would be unable to attend the Tribunal hearing scheduled for 5 January 1999. Originally, the appellant denied signing the signature appearing on the letter, which bore some similarity to that of the bearer of the Indonesian passport, but later said that he ‘couldn’t remember’ and ‘didn’t know’ whether he signed it.
(d) the appellant was apparently informed orally by the migration agent that the Tribunal had refused his case. He was advised that he could apply to the Federal Magistrates Court but he did not do so.
76 On or about 15 June 2006 the appellant applied to the then Minister for Immigration and Multicultural Affairs for a ‘second chance’ to submit an application for a ‘refugee visa’. He said:
‘… I was born on the 27th of March, 1970. I arrived in Australia on the 30th of December 1997, holding an Indonesian passport.
When I first arrived here, I was naive and ignorant of your society and culture, and unfortunately, ignorant of your laws and legislations. Knowing no one and little English, I trusted an Immigration Agent based in Sydney called “An Qi” with my full application for refugee in your country. I didn’t know they used an Indonesian name on my application called Kalalo Denny Dendeng; I was also kept in the dark with regards to the other information and details on my application.
…’
77 The communication with the Minister was plainly false insofar as it asserted that the appellant was ignorant of the fact that the Application for a Protection Visa (866) was prepared in an Indonesian name being that of ‘Kalalo Denny Dendeng’. Not surprisingly the learned magistrate found that the appellant was ‘a party to the fraud’ and not, as in the case of SZFDE, a ‘victim of it’.
78 In respect of the appellant’s application to the Minister for a ‘second chance’, the Minister declined to take any further action in respect of the request. She also declined to substitute a decision more favourable to the appellant for that of the Tribunal, in accordance with s 417 of the Act. The letter from the Department’s Ministerial Intervention Unit of 15 September 2006 included:
‘Under section 48B of the Migration Act 1958, the Minister may allow a person to make a further application for a Protection visa, if she considers that it is in the public interest to do so.
Your request has also been considered for the exercise of the Minister’s power under section 48B of the Act and has been assessed against the Minister’s Guidelines for Purported Further Applications for a Protection visa subject to section 48A and Requests for Ministerial Intervention under section 48B. However, your case did not meet these guidelines, and will not be referred to the Minister for consideration under section 48B. Accordingly, no further action will be taken in respect of your request.
…’
The need for a ‘valid application’ for review
79 A decision to refuse to grant a protection visa was an RRT-reviewable decision under s 411(1)(c) of the Act. Section 414(1) of the Act required the Tribunal to review a decision of a delegate of the Minister, in relation to an application for a protection visa, if a ‘valid application’ was made under s 412 of the Act for review of that decision.
Section 412 of the Act relevantly provided, for present purposes:
‘412(1) An application for review of an RRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
…’
(Emphasis added)
80 Given the appellant’s emphatic assertion that he only ‘signed it once’ and that that occurred at his migration agent’s house when he placed a signature, imitating that of the bearer of Denny Dendeng Kalalo’s passport, on the Application for a Protection Visa (866), it follows that no valid Application for Review was ever made by the appellant to the Tribunal which it was required to review.
The Appeal
81 The appeal presently before the Court was instituted by the filing of a Notice of Appeal on 15 April 2008 in which 12 separate grounds of appeal were specified. It is unnecessary to detail these grounds as the appellant’s counsel in his Outline of Submissions has said:
‘3. The only issue below and on appeal is whether the decision of the Tribunal was effected (sic) by fraud and so attended with jurisdictional error on the basis considered by the High Court in SZFDE v Minister for Immigration and Citizenship …’
82 Counsel for the appellant submitted that the learned Federal Magistrate had accepted that the Tribunal’s decision had been affected by fraud. However, he submitted that the learned Federal Magistrate erred in concluding that if the appellant knew of the fraud or participated in it, there would be no jurisdictional error.
83 In addition, counsel for the appellant submitted that the learned Federal Magistrate erred in finding, in the alternative, that even if jurisdictional error had been shown, the learned Federal Magistrate’s exercise of his discretion to withhold constitutional writ relief had miscarried.
84 Notwithstanding counsel for the appellant’s clear indication that the only issue was whether the decision of the Tribunal was affected by fraud and so attended with jurisdictional error, submissions were advanced to the effect that the appellant’s migration agent had perpetrated fraud on the appellant, on the Minister and on the Tribunal.
85 The appellant’s submissions should be rejected for a variety of reasons including those referred to at [51] and [80] above.
86 The learned Federal Magistrate was correct in highlighting that SZFDE had been a victim of fraud whereas SZLHP was privy to or a party to such fraud as there may have been.
87 Whilst the High Court in SZFDE may have found it unnecessary to ‘determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision (whether a primary decision or, as in the case of the Tribunal, an administrative decision itself made as a system of external administrative review),’ it is clear that the High Court saw no scope for judicial review where the applicant for such review colluded in the fraud practised on the administrative decision-maker or review body (see 81 ALJR 1401 at [28]). The rule of construction which is applicable in breach of contract cases: ‘A man cannot be permitted to take advantage of his own wrong’, is another expression of the same general principle (see per Lord Diplock in Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180 at 189).
88 It is demonstrable on the facts of this case, that the appellant colluded in such fraud as may have been practised on the Minister and his delegate as the administrative decision-maker. Plainly, the appellant has no cause to complain in respect of such fraud.
89 In relation to the Tribunal no subversion of the operation of s 425 of the Act or of the Tribunal’s obligation to accord for procedural fairness to an applicant for review could be found in circumstances where the appellant has disavowed any association with the Application for Review as lodged and which bore an ‘Applicant’s signature’ upon it with which the appellant had no association. Section 425, of course, required the Tribunal to extend an invitation to the applicant named in a ‘valid application’ to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. However, in the appellant’s case he was not an applicant who was seeking review of the primary decision of the Minister’s delegate of 19 February 1998 and who had made a ‘valid application’ to the Tribunal.
90 Had the learned Federal Magistrate had regard to French J’s admonition in SZFDE, in this case, and viewed the facts most favourably to the appellant, the most that he could have concluded would have been:
(a) the appellant arrived in Australia on 30 December 1997 pretending to be Denny Dendeng Kalalo, a citizen of the Republic of Indonesia;
(b) the appellant provided his migration agent with the passport in the name of Denny Dendeng Kalalo which showed the appellant’s photo as that of Denny Dendeng Kalalo;
(c) the appellant’s migration agent advised him to refrain from revealing his true identity and also his claim that owing to a well-founded fear of being persecuted for reasons of religion, he was outside the People’s Republic of China, the country of his nationality, and was unable or, owing to such fear, unwilling to avail himself of the protection of the People’s Republic of China;
(d) the appellant’s migration agent prepared an Application for a Protection Visa (866) in the name of Denny Dendeng Kalalo, which contained false or misleading information;
(e) the appellant signed the Application for a Protection Visa (866) as prepared by his migration agent, knowingly representing himself to be Denny Dendeng Kalalo, asserting that he was the holder of an Indonesian passport in that name and, in so doing, forging the signature of the holder of the Indonesian passport;
(f) the Minister’s delegate was not misled by the false or misleading information into granting the appellant a Protection Visa (866), which the delegate would not otherwise have granted;
(g) the appellant paid the migration agent $1,000 to have her prepare and lodge an application for review with the Tribunal. Whilst an application was lodged, it was lodged in the name of Denny Dendeng Kalalo with a forged signature upon it, but not one that the appellant had applied to it;
(h) the appellant never made a ‘valid application’ within the meaning of s 412 of the Act for review of the Minister’s delegate’s decision of 19 February 1998 refusing Denny Dendeng Kalalo’s Application for a Protection Visa (866);
(i) whilst the appellant was informed that an application for review had been lodged, albeit not his application, and that a hearing had been scheduled, the appellant, in order to avoid an appearance by him before the Tribunal, sought and obtained a medical certificate, falsely representing himself to be Denny Dendeng Kalalo. The medical certificate represented that Denny Dendeng Kalalo was suffering from ‘Back Pain’ and would be ‘unfit for duty’ for two days;
(j) there was no evidence that the appellant was suffering from any disabling back pain at the time when he went to the doctor to obtain the medical certificate;
(k) the appellant’s migration agent had advised the appellant to obtain the medical certificate so that he could avoid attending a Tribunal hearing;
(l) the migration agent advised the appellant that the Application for Review lodged in the name of Denny Dendeng Kalalo (the non-citizen who was the subject of the primary decision) would be refused because the appellant was unable to speak Indonesian and his false or misleading representations contained in the Application for a Protection Visa (866), which he had signed with the forged signature of Denny Dendeng Kalalo, would be revealed;
(m) there was no evidence to suggest that the migration agent did not honestly believe that the advice which she gave to the appellant was correct;
(n) there was no evidence to suggest that the appellant knew that the proposed Tribunal hearing had been re-scheduled and, if he did, that he had knowledge of the relevant re-scheduled date;
(o) the appellant’s migration agent may have advised the appellant not to go to a Tribunal hearing because the appellant would not win and would be arrested at the hearing and deported on the spot;
(p) there was no evidence to suggest that if such advice was given by the appellant’s migration agent, the migration agent did not honestly believe it to be correct.
91 Unlike SZFDE, this was not a case where a representation had been made to the appellant that was plainly false.
92 Viewing the matter as summarised above and bearing in mind, firstly, that the Minister’s delegate was not led into error, secondly, on the appellant’s own case, the Tribunal did not have a valid application for review before it, thirdly, the appellant did not want to go to a Tribunal hearing to tell the truth and fourthly, any wish that the appellant may have had to attend a Tribunal hearing was not frustrated by the provision and acceptance of advice which the migration agent did not genuinely and honestly believe to be sound when she gave it, I cannot see how it could be said that there was any fraud ‘on’ the Minister or ‘on’ the Tribunal so as to give rise to any jurisdictional error.
93 Even if there was such ‘fraud’, the appellant’s complicity in it would deny him the right to complain about it.
94 Finally, if there had been a case of jurisdictional error, I would take the view that the Court should not disturb the exercise by the learned Federal Magistrate of his discretion to refuse constitutional writ relief, as he did. The unwarranted delay and bad faith of the appellant militate in favour of a refusal of any such relief (see Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82 at [56]-[57]).
95 Before concluding these reasons, I should add that since preparing my reasons for judgment, in draft, as recorded above, I have had the advantage of reading the reasons for judgment of Branson J, in draft. I am in general agreement with what her Honour has said and the conclusion which she has reached.
96 It follows that the appeal should be dismissed and the appellant should be ordered to pay the respondent Minister’s costs.
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I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. |
Associate:
Dated: 19 August 2008
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Counsel for the Appellant: |
S E J Prince |
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Solicitor for the Appellant: |
SBA Lawyers |
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Counsel for the First Respondent: |
G T Johnson |
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Solicitor for the First and Second Respondents: |
Australian Government Solicitor |
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Date of Hearing: |
17 July 2008 |
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Date of Judgment: |
19 August 2008 |
