FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Lu [2010] FCAFC 147

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrates Court on 19 May 2010 be set aside and in lieu thereof it be ordered that:

(1)    the application for review of the decision of the Migration Review Tribunal of 11 April 2008 be dismissed;

(2)    the applicant pay the first respondent’s costs.

3.    The first respondent pay the appellant’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Minister for Immigration and Citizenship (“the Minister”) appeals from orders made by the Federal Magistrates Court on 19 May 2010. Those orders were;

(1)    A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal signed on 11 April 2007 and notified to the applicant’s then migration agent by letter dated 20 April 2007.

(2)    A writ of mandamus shall issue requiring the Tribunal to redetermine the review application before it according to law.

2    The application before the Federal Magistrates Court was for review of a decision by the Migration Review Tribunal (“the Tribunal”) affirming a decision by a delegate of the Minister not to revoke the automatic cancellation of a higher education visa formerly held by the first respondent (“Ms Lu”).

3    Ms Lu had held successive student visas since her arrival in Australian in 2003 and, on 25 August 2004, she was granted a subclass 573 student visa. On 4 May 2006, Ms Lu’s then education provider, the Sydney International College of Business Pty Ltd, issued to her a notice pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) certifying that she had not achieved satisfactory course attendance and had breached condition 8202(3)(a) of her visa. On 2 June 2006, Ms Lu’s visa was automatically cancelled by force of s 137J of the Migration Act 1958 (Cth) (“the Migration Act”). On 20 October 2006, Ms Lu, through her migration agent, Mr Eyeson-Annan, applied to the Minister for revocation of the automatic cancellation of her visa. The reasons in support of that application recited;

I have gone through a miscarriage and psychological issues. Please find enclosed letter from Dr Timothy J Sharp.

4    The application for revocation was refused by a delegate of the Minister on 17 November 2006 and, on 28 November 2006, an application for review of that decision was lodged by Mr Eyeson-Annan on behalf of the Ms Lu. In that application for review, Mr Eyeson-Annan was nominated by Ms Lu to be the authorised recipient to whom all correspondence in connection with the review by the Tribunal was to be sent.

5    On 12 March 2007, the Tribunal sent to Mr Eyeson-Annan an invitation to comment on information which ended with these paragraphs;

You are invited to comment, in writing, on the following information:

    During the course that ran from 2 June 2006 to 23 October 2006 your education provider has indicated that your attendance was 7.78% of contact hours scheduled.

This information is relevant to the view because it may indicate that you have not attended for ‘at least 80%’ of contact hours scheduled during your course. It is a requirement of condition 8202(3)(a) attached to your Student visa that you comply with this condition. A failure to comply with this condition involves mandatory cancellation of your Student visa unless the non-compliance was caused by ‘exceptional circumstances beyond the visa applicant’s control’.

This above information does not include information that you gave the Tribunal for the purpose of the application, or information that, under the Act, is non-disclosable.

INVITATION TO PROVIDE INFORMATION

In addition, section 359(2) of the Migration Act allows the Tribunal to invite a person to give it additional information that is relevant to the review of a decision.

Accordingly, the Tribunal now invites you to provide the following additional information:

Evidence that your purported failure of attendance was due to ‘exceptional circumstances beyond the visa applicant’s control’.

Any other information which you believe is pertinent to your review before the Tribunal.

Your written comments and the requested information should be received at the Tribunal by 20 March 2007. If you are unable to provide comments and the requested information by 20 March 2007, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before 20 March 2007. The Tribunal will consider any request for an extension carefully and advise you, in writing, whether an extension of time has been granted.

If the Tribunal does not receive any comments and the additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the additional information and comments. You will also lose any entitlement you might otherwise have had under s.360 of the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

If you have any questions you can call me on the number below. You can also call our information line on 1300 361 969 (local call charges apply from anywhere within Australia, except when calling from mobile telephones). For assistance in your language, please contact the Translating and Interpreting Service (TIS) on 131 450: You can also obtain general information from our website at www.mrt.gov.au.

(original emphasis)

6    For reasons which we shall indicate later, no response was made to that invitation. The Tribunal then proceeded, pursuant to s 359C of the Migration Act, to decide the application for review and, on 20 April 2007, affirmed the decision of the delegate of the Minister. The application to the Federal Magistrates Court was not filed until 14 December 2009, but, on 19 March 2010, the learned Federal Magistrate, pursuant to s 477(2) of the Migration Act, granted Ms Lu an extension of time within which to bring the application.

7    By her amended application, Ms Lu contended, first, that the decision of the Tribunal had been affected or induced by the fraud of a woman named Zhao Hui. That contention was particularised as follows:

a)    Zhao Hui represented to the applicant that she was an agent for a solicitor who could assist the applicant with her application to the Tribunal.

b)    The applicant paid Zhao Hui a total of $93,200.00 for the services of the purported solicitor.

c)    Zhao Hui told the applicant that the purported solicitor had advised her not to respond to a Tribunal request for further information as her doing so would be counter productive.

e)    Zhao Hui either

i)    knew that the above advice was false; or

ii)    gave the advice with reckless indifference as to whether it was true.

8    In the alternative, Ms Lu contended in her application that the fraud on the Tribunal had been perpetrated by a person named “Anna”. Particulars of that allegation were:

a)    Zhao Hui represented to the applicant that one “Anna” could assist her in obtaining a valid visa.

b)    The applicant paid “Anna” through Zhao Hui, a total of $93,200.00 for her services and/or those of a purported solicitor with whom “Anna” had contact.

c)    Zhao Hui conveyed to the applicant Anna’s advice not to respond to a Tribunal request for further information as her doing so would be counter productive.

d)    “Anna” either

i)    knew that the above advice was false; or

ii)    gave the advice with reckless indifference as to whether it was true.

9    The learned Federal Magistrate in his reasons noted the contentions set out at [8] above and went on at [12] of his reasons to observe that Ms Lu:

… asserts that she was induced by what she was told to terminate her instructions to her migration agent and not to respond to the invitation to comment and request for additional information issued to her pursuant to ss.359A and 359(2) of the Migration Act, with the result that she lost the opportunity to provide information in writing to the Tribunal and to attend a hearing before the Tribunal. Ms Lu relies upon the decision of the High Court in SZFDE v Minister for Immigration (2007) 232 CLR 189. Ms Lu submits that the fraud of Ms Zhao or “Anna” disabled the Tribunal from the due discharge of its statutory functions. She submits that it makes no difference that Ms Zhao was not and did not purport to be a migration agent or a lawyer.

10    His Honour next noted Ms Lu’s claim that her case was distinguishable from SZLHP v Minister for Immigration (2008) 172 FCR 170 ([2008] FCAFC 152) (“SZLHP”) because she had not been a willing participant in the fraud but had paid money to Ms Zhao whom she trusted, as she did the solicitor whom she was led to believe had been retained on her behalf. She had been “gullible”, “naive” and “vulnerable”. In the next part of his reasons, his Honour summarised the contentions on behalf of the Minister, noting a concession that a third party’s fraud, if it stultifies the Tribunal’s decision-making process, may be described as a fraud on the Tribunal so that its jurisdiction may remain constructively unexercised. It appears that Counsel for the Minister also pointed out that in SZFDE v Minister for Immigration (2007) 232 CLR 189 (“SZFDE”), the migration agent had given advice in a conscious attempt to protect his own position. The learned Federal Magistrate then distilled from the Minister’s submission the following eight points;

a)    there must be a causal connection between the relevant act of fraud and the disabling of the Tribunal’s decision making process;

b)    before any act can be characterised as a fraud on the Tribunal it must be able to be characterised as a fraud on the applicant;

c)    an applicant needs to show a deliberate attempt for improper motives to deceive him or her into preventing him or her responding to the Tribunal;

d)    the principle in SZFDE does not apply in circumstances where an applicant is complicit in the fraud on the Tribunal and where the applicant is not misled as to his or her advisor’s reasons for discouraging participation in the review process ;

e)    an allegation of fraud is a serious matter and the applicant bears the onus of establishing the fraud to a high degree of satisfaction;

f)    the Court should not reach the required level of satisfaction based upon Ms Lu’s evidence alone;

g)    Ms Lu’s evidence discloses that she was complicit in participating in a scheme to “get around” the Tribunal; and

h)    although the evidence of Ms Zhao tends to support the proposition that Ms Lu was defrauded, in terms of payment of money for services apparently not provided, it does not persuasively establish that Ms Lu was induced by that fraud not to participate in the Tribunal process and, in any event, Ms Lu knew or must have suspected that the huge amount of money she was paying was directed towards an irregular process.

11    In his consideration of the issues, the learned Federal Magistrate referred to the observations of the High Court in SZFDE 232 CLR 189 at [49]-[52] and again at [29] and [32]. A reading of those passages led his Honour to reason at [19]-[20] of his own decision:

19    I do not see in the decision of the High Court any limitation of the principles enunciated to the acts or omissions of persons holding themselves out to be registered migration agents. It is notorious in migration proceedings that applicants are frequently assisted by persons they describe as “friends” who offer assistance of various kinds in making applications for visas and in the review of adverse decisions before a tribunal. Frequently, such persons are paid for those services. Sometimes those services are said to have been provided without charge. In my view, any applicant may hypothetically be defrauded by a person offering such assistance and, if by reason of that fraud, the applicant is prevented, through no fault of their own, from participating in a Tribunal review process which they would otherwise have enjoyed, then the Tribunal’s review process may thereby be disabled and the Tribunal decision invalidated.

20    The circumstances are different where the applicant himself or herself is complicit in the disabling of the review function: see SZLHP at [20], [34] and [87]-[88].

12    The learned Federal Magistrate then went on to recount the retainer by Ms Lu of Mr Eyeson-Annan, as her migration agent. He represented her before the Department and the Tribunal. His Honour also noted that no response had been received from Mr Eyeson-Annan to the Tribunal’s request of 12 May 2007 to comment on adverse information pursuant to s 359A of the Migration Act. That information went to Ms Lu’s poor record of attendance at the Sydney International College of Business. As noted at [5] above, the Tribunal had also sought additional information about Ms Lu’s state of health in order to determine whether her poor attendance had been caused by exceptional circumstances beyond her control. Understandably, the Tribunal received no response to those requests because, as his Honour found, Ms Lu had not required Mr Eyeson-Annan to respond to them (at [27] of his Honour’s reasons). However, as his Honour pointed out at [21] of his reasons, had a response been made to the Tribunal’s request:

… Ms Lu has proven to be a very successful student, apart from the period 2004-2006 and she may well have been able to mount a strong case that her attendance record was due to exceptional circumstances beyond her control.

The absence of any response to the Tribunal’s request, as his Honour found:

influenced fundamentally the Tribunal’s decision not only because the applicant was thereby deprived of a hearing but because of the absence of sufficient information to persuade the Tribunal as to exceptional circumstances.

13    After setting out the relevant part of the Tribunal’s reasons for rejecting Ms Lu’s application, his Honour went on to observe, at [23] of his reasons:

It is unfortunate that the presiding member stated, without any supporting evidence, that Ms Lu “chose” not to respond to the invitation and request issued to Mr Eyeson-Annan. I assume, in that connection, that the Tribunal was unaware of the circumstances of the non response. If the Tribunal had been aware of the circumstances its failure to say anything about them would have been extraordinary. It is also unfortunate that the presiding member stated that Ms Lu had “not made herself available to be questioned about her individual circumstances at a hearing” because the Tribunal was prevented by the Migration Act from offering Ms Lu a hearing in consequence of the non response to the invitation to comment and the request for additional information [Hasran v Minister for Immigration [2010] FACFC 40 at [25]-[32]]. Leaving those problems aside, however, as they were not raised in the application before the Court, the Tribunal decision was the inevitable consequence of the failure by Ms Lu to respond to the invitation and request issued to her migration agent.

14    The learned Federal Magistrate also found, in effect, that Ms Lu had not responded or instructed Mr Eyeson-Annan to respond, to the Tribunal’s request or invitation because she had been told by Ms Zhao, in substance;

Do not worry about the deadline. I’m sure Chris can win the case for you. If you lodge the documents it will be more difficult to win the case, so don’t lodge.

15    Somewhat curiously, his Honour declined to accept Ms Lu’s evidence that she withdrew instructions from Mr Eyeson-Annan. However, he did accept [at 27]:

… that Ms Lu did attend the office of Mr Eyeson-Annan and I also accept that the consequence of that visit was that Ms Lu did not require Mr Eyeson-Annan to respond to the Tribunal’s letter of invitation and request. That is consistent with the alleged conversation between Ms Lu and Ms Zhao.

16    There seems, in the circumstances, nothing more that Mr Eyeson-Annan could have done pursuant to his retainer after those instructions had been given to his office. In any event, his Honour found, at [30] of his reasons, that “the process which Ms Zhao recommended to Ms Lu and which Ms Lu accepted was not a normal part of the review process before the Tribunal. His Honour went on in the same paragraph, to make these findings:

Ms Zhao stated that the lawyer “Chris” could, for payment of $24,000, “get around” the Tribunal. Ms Lu was probably gullible but I do not accept that she is as naïve as she claims. In my view, Ms Lu anticipated that instead of participating in the Tribunal review process, she would get what she wanted through payment of a bribe, facilitated by “Chris”.

In support of those findings, his Honour noted various payments made by Ms Lu and demands by Ms Zhao for more money “in addition to the $24,000 paid in cash by Ms Lu to Ms Zhao” and accepted that $93,200 was paid by Ms Lu to Ms Zhao over a period of about one and a half years. His Honour then went on to find that “Ms Zhao falsely represented to Ms Lu that ‘Chris’ could ‘get around’ the Tribunal in relation to the revocation of the cancellation of her student visa and that he could quickly obtain a permanent residence visa for her” and that Ms Zhao had kept the money which Ms Lu had paid to her.

17    As to Ms Lu’s state of mind during the dealings with Ms Zhao, his Honour observed, at [33]:

Ms Lu is an intelligent person. She is not so naïve that she would pay over $90,000 for legal services of which she saw no evidence from persons who she never met. She thought that she was unlikely to get what she wanted (first, the revocation of the cancellation of her student visa and later a permanent residence visa) through the normal process. She believed that the wheels of public administration in this country could be greased by the payment of money. There is no evidence before me that she was correct in that belief. She was defrauded because the money she paid was not applied to the purpose for which it was paid.

18    After accepting that the Tribunal process had been disabled, in that “Ms Lu failed to respond to the Tribunal’s invitation to comment and request for information because she was induced by the representation by Ms Zhao not to participate further in the Tribunal’s process but to pay money for an irregular process”, the learned Federal Magistrate went on to find, at [34]:

There is a causal connection between the fraud (the false representation by Ms Zhou inducing the payment of money) and the disabling of the Tribunal’s decision making process. I have no doubt that the actions of Ms Zhou constituted a fraud on Ms Lu. Ms Zhou’s representation was deliberate and improper because it was false and intended to deceive Ms Lu into paying very large sums of money. Ms Zhou had an interest in preventing Ms Lu from participating further in the Tribunal’s process because, once Ms Lu knew the outcome of her review application, she would have been unlikely to trust Ms Zhou further. The longer Ms Lu could be kept in ignorance of the real situation, the more money could be extracted from her.

19    However, his Honour also made these observations, at [35], about Ms Lu’s complicity:

In one sense Ms Lu was complicit in the disabling of the Tribunal process because she chose to participate instead in what she must have known would have been an irregular process (if it was a real process). It was her choice not to respond to the invitation to comment and request for information. However, in another sense, which I find more relevant, Ms Lu was not complicit. She did not know that the alternative irregular process was a fabrication. She did not know that she was paying money for nothing. She was not complicit in the fraud on herself. Her decision not to respond to the Tribunal was induced by that fraud.

That analysis, that Ms Lu had been complicit in only one aspect of the improper conduct engaged in or proposed by Ms Zhao, led his Honour to reach this conclusion, at [36]:

The facts in this case are different from those in SZLHP where the applicant was clearly and substantially a party in a scheme to mislead and deceive the Tribunal. It is an unfortunate fact that in some countries bribery is an accepted means of obtaining a quick and favourable decision. That is not the case in this country but applicants who are new to this country cannot reasonably be expected to fully appreciate the difference in circumstances between their country of origin and Australia. A gullible applicant, such as Ms Lu, may be deceived into believing that a favourable or quick outcome may be obtained or assisted through the payment of a bribe. That is what happened here. An applicant may be induced through such a deception not to participate in the Tribunal’s review process and that process may thereby be disabled. I find that in the present circumstances, the Tribunal was disabled from the due discharge of its imperative statutory functions in respect of the conduct of the review in circumstances where Ms Lu was not relevantly complicit. A consequence is that the decision of the Tribunal in this case is a legal nullity.

[emphasis added]

20    Having thus concluded that Ms Lu was entitled as a matter of law to the relief which she had sought in relation to the Tribunal’s decision, his Honour declined to withhold that relief on discretionary grounds. He explained that decision as follows, at [37]:

This is not an appropriate case to withhold relief from Ms Lu in the exercise of discretion. Although Ms Lu’s academic performance and attendance were unsatisfactory in 2004-2006, she was able to persuade a delegate of exceptional circumstances the first time she was notified of a breach of her visa conditions and she may have been able to persuade the Tribunal if she had responded to its invitations. She has now successfully completed a masters degree at Central Queensland University. She was duped into paying money for a visa process which was a sham and the Tribunal’s review process was thereby disabled. Ms Lu should now be given the benefit of the review opportunity she was induced to give up by reason of the fraud against her.

Submissions on behalf of the Minister

21    Mr Johnson SC for the Minister contended that the various findings made by the learned Federal Magistrate entailed the conclusion that Ms Lu had intended to achieve “her immigration result through bribery and that she paid money towards that purpose.” Her failure to respond to the invitation or request of the Tribunal was said to be part of that plan. As a result, the Minister contended, there was no jurisdictional error in the Tribunal’s having proceeded in the way described at [4] of these reasons. That conclusion, it was said, was unaffected by the fraudulent conduct of Ms Zhao towards Ms Lu or the latter’s mistaken belief that money which she had paid to Ms Zhao would be applied in bribing an official with authority to effect a favourable outcome of her visa applications.

22    According to the Minister’s argument, Ms Lu’s conscious choice not to respond to the Tribunal’s invitation meant that its processes, or the exercise of its jurisdiction, were not relevantly “disabled.” In that sense, the present case was analogous to SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211, where Middleton J, after noting, at [46], that “the appellant herself was complicit and knowingly involved in the decision to mislead the Tribunal as to her place of residence”, observed, at [47]-[48];

47    SZFDE 232 CLR 189 does not stand for the proposition that a failure by an applicant to attend the Tribunal hearing due to the fault or conduct of a third person bears the result that the Tribunal decision to proceed under s 426A of the Act is always vitiated by error.

48    This is a case where the appellant did not attend the Tribunal hearing due to a combination of factors – her own lack of diligence, receipt of some misinformation or bad advice from a third party, and choosing after some persuasion not to attend. None of these matters amounts to fraud because there is no relevant ‘fraudulent’ conduct vis-à-vis the appellant. The real reason for the appellant not attending is not contained in the various matters particularised by the appellant in the Further Amended Notice of Appeal, but was the appellant’s own decision not to attend. The appellant consciously consented to the Tribunal disposing of her case without her appearance, and in the circumstances the legislative scheme and processes of the Tribunal were not in any way disturbed.

23    Moreover, Mr Johnson argued, had the bribery contemplated by Ms Lu been implemented successfully, the favourable result so achieved would have been vitiated by fraud and a nullity. Ms Lu’s complicity in that fraud would have deprived her of any legal remedy and she cannot be in any better position because the fraud which she intended was not effectuated.

24    The fact that Ms Lu was herself the victim of a collateral or related fraud perpetrated by Ms Zhao cannot, on the Minister’s argument, mean that the Tribunal was guilty of jurisdictional error. To hold otherwise would allow Ms Lu to “take advantage of her own wrong” contrary to the principle enunciated by Lord Diplock in Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180, at 189. That principle was applied by a Full Court of this Court in relation to an alleged fraud on the Tribunal in SZLHP, where Branson J considered, at [12]-[13], a submission that the reasoning of the High Court in SZFDE did not recognise any distinction based on the identity of the person perpetrating the fraud or the person on whom it is practised. Her Honour said;

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 practised 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.

25    In the same case, Lindgren J agreed that SZFDE was distinguishable in that way and observed, at [28], that;

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.

26    The Minister also took issue with the finding of the learned Federal Magistrate, noted at [18] above, that Ms Zhao’s motive in advising Ms Lu not to respond to the Tribunal’s invitation had been to hide from Ms Lu the fact that nothing was being done to further her visa applications. That finding was said to be inconsistent with the finding that, at the time when Ms Zhao advised Ms Lu to leave the Tribunal’s invitation unanswered, the innocent migration agent, Mr Eyeson-Annan, was acting for Ms Lu and no occasion had arisen for “Chris” or Ms Zhao or anybody else to do anything to further, by corrupt means, Ms Lu’s visa applications. There was, therefore, at the relevant time no inactivity or lack of progress to hide.

27    The final and further or alternative submission advanced on behalf of the Minister was that the proposed corruption in which Ms Lu had been found to have been complicit was a ground on which prerogative relief should have been refused as a matter of discretion. A similar exercise of discretion was approved in SZLHP where Branson J observed, at [21];

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.

28    To similar effect, Graham J concluded, at [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]).

29    In the present case, Mr Johnson submitted, the learned Federal Magistrate had enumerated at [37] of his reasons, quoted at [19] above, the factors which supported an exercise of his discretion favourably to Ms Lu but failed to take into account those matters which he had affirmatively found and which militated against such a favourable exercise of the discretion. Those matters included the finding noted at [16] above that “Ms Lu anticipated that ….. she would get what she wanted through payment of a bribe, facilitated by ‘Chris’”. As well, Counsel for the Minister pointed to his Honour’s finding at [31] of his reasons that Ms Lu had admitted “that she did not care how she got her visa back, as long as she got it back” and at [35] that she “was complicit … because she chose to participate instead in what she must have known would have been an irregular process.” Finally in this context, the Minister relied on the implied finding at [36] of his Honour’s reasons reproduced at [19] above that Ms Lu had been complicit in an act of bribery proposed to obtain, or assist in obtaining, a favourable or quick outcome.

Submissions of the amicus curiae

30    The hearing of the Minister’s appeal was adjourned from 24 August 2010 to 9 November 2010 to enable Mr Karp of Counsel, who had appeared for Ms Lu before the Federal Magistrates Court, to continue to represent her. In the meantime, on 29 October 2010, the solicitors on the record for Ms Lu filed a Notice of Withdrawal of Appearance on her behalf. The taking of that step was explained as follows in an affidavit affirmed on 29 October 2010 by the solicitor having the carriage of the matter on behalf of Ms Lu;

2.    On 13 September 2010, the Respondent moved to China. She did not notify us of her postal address in China.

3.    The last known address of the Respondent in Australia is … [Burwood NSW 2134].

4.    On 22 October 2010, I sent a letter to the Respondent’s last known address notifying her of our intention to lodge a Notice of Withdrawal of Appearance form at the Federal Court of Australia for this matter.

31    In these circumstances, Mr Karp generously agreed to appear as amicus curiae and, with exemplary pertinacity, put everything to this Court which could responsibly have been advanced in support of the orders made in the Federal Magistrates Court.

32    Mr Karp drew attention to the finding of the learned Federal Magistrate that Ms Lu had been complicit in only one aspect of the “disabling” of the Tribunal’s process. That was because she had chosen to participate in what she must have known would have been an irregular process. On the other hand, as his Honour found, Ms Lu had not known that the alternative irregular process was a fabrication. She was not complicit in the fraud on herself.

33    Mr Karp next pointed out that Ms Zhao’s advice that Ms Lu should not attend the Tribunal hearing because that would make “Chris’s” task more difficult could not have been given in the honest belief that such a course would be in Ms Lu’s best interests or in furtherance of a genuine wish to facilitate a bribe. Rather, it was suggested, Ms Zhao had been concerned to preclude Ms Lu from attending a hearing of the Tribunal in order to prevent her own involvement and that of her supposed lawyer “Chris” from being revealed and to preserve for as long as possible the opportunity to extract more money from Ms Lu.

34    As a result of her fraudulent conduct, Ms Zhao ensured that Ms Lu would not attend a hearing of the Tribunal and thereby undermined the Tribunal’s statutory processes so as to make applicable the reasoning of the High Court in SZFDE. Mr Karp frankly acknowledged that, as the Minister had submitted, it had been Ms Lu’s choice not to respond to the Tribunal’s invitation. However, she had been persuaded to make that choice by a person who had worked on her vulnerability and gained her confidence in the same way as had happened to the applicants in SZFDE.

35    Mr Karp accepted that his Honour’s finding that Ms Lu expected that a bribe would be paid attracted the operation of the principle that a person cannot take advantage of his or her own wrong. However, he said, it was questionable whether, and if so to what extent, Ms Lu’s conduct had been responsible for undermining the Tribunal’s statutory processes. SZLHP had correctly been distinguished by the learned Federal Magistrate because, in that case, there had been a conspiracy to provide false information in a visa application. Here, there was no conspiracy because there was no agreement between Ms Lu and Ms Zhao to do anything. Ms Zhao’s advice, in which Ms Lu had acquiesced, had not been provided in furtherance of a conspiracy but in furtherance of Ms Zhao’s fraud on Ms Lu.

36    Mr Karp also contended that the further or alternative invocation by the Minister of discretionary grounds for refusing prerogative relief should be rejected. He candidly accepted that, to the extent that he had exercised it, his Honour’s discretion had miscarried because it had not taken into account the potentially disqualifying behaviour of Ms Lu and weighed it against the matters, personal to Ms Lu, which tended in favour of granting her the relief which she sought.

37    As we understood it, Mr Karp urged that, in exercising the discretion for itself, this Full Court should allow the matters identified by his Honour to outweigh Ms Lu’s conceded lack of clean hands which resulted from her having countenanced and facilitated the payment of a bribe. In the final paragraph of his written outline of submissions, Mr Karp contended;

… it is apparent that Ms Lu suffered a series of traumatic personal hardships described in her affidavit… . It is reasonable to conclude that it was these events which made her susceptible to becoming the victim of Ms Zhao’s fraud, when Ms Zhao offered her hope. [His Honour] found that she was not as naïve as she claimed [( at [30])], but she must have been gullible to be duped for so long and to have been milked of so much. In my submission her conduct in paying money to Ms Zhao in the belief that a bribe would be paid must be balanced against these considerations in deciding whether relief should be withheld as a matter of discretion.

Consideration

38    In our view, when the Tribunal determined, in her absence, Ms Lu’s application and affirmed the decision of the delegate of the Minister, it had not been “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”; see SZFDE 232 CLR 189 at [51]. That was because the “disabling” found by the High Court in that case followed as an “immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.” In the present case, by contrast, there was no stultification of the Tribunal’s obligation to afford natural justice to Ms Lu because the process which the Tribunal followed was the natural consequence of her conscious election not to respond to the Tribunal’s invitation. That election, it is true, was conveyed to her migration agent, Mr Eyeson-Annan and it was his inaction which led the Tribunal to take the course which it did. However, unlike the migration agent in SZFDE, Mr Eyeson-Annan did not perpetrate any fraud on the Tribunal or on Ms Lu. His conduct was entirely consistent with the instructions which, at least by implication, she had given him.

39    The matters to which we have drawn attention compel us to distinguish the present case from SZFDE in the same way as another Full Court of this Court did in SZLHP. In that case, Branson J, after making the observations at [13] which are quoted at [24] above, continued at [14]-[15]:

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.

40    In the respects which we have indicated, Ms Lu’s choice not to respond to the Tribunal’s invitation can be seen as motivated by her desire to pursue a different route to achieve her goal of obtaining a visa. Ms Lu acted at the behest of Ms Zhao to ignore the request of the Tribunal because she intended to “get around” it by paying a bribe. His Honour’s finding that she did so because Ms Zhao’s ruse was a fabrication cannot work to Ms Lu’s advantage. Ms Lu was a conscious participant in what she understood was an attempt to subvert the outcome (affirmation by the Tribunal of the cancellation of her visa) that would occur because she chose not to respond to the Tribunal’s invitation. The fact that Ms Lu was duped by Ms Zhao into thinking that Ms Zhao would facilitate payment of a bribe from Ms Lu’s extravagant payments to her demonstrates that the Tribunal’s processes were not affected by fraud. Rather, Ms Lu intended to engage in a fraud to “get around” the result in the Tribunal she knew her conduct would produce. This is similar to the choice made by the applicant in SZHVM 170 FCR 211 where Middleton J held, in the passage quoted at [22] above that the processes of the Tribunal had not been disturbed.

41    Ms Lu’s case was that she was induced by Ms Zhao’s fraudulent conduct not to participate further in the Tribunal’s processes. However, that case was founded on her intention to commit an independent fraud herself by paying or causing a bribe to be paid to “get around” the lawful process of obtaining a visa. That species of fraud, if carried out, would, of course, have vitiated any visa that she obtained. Ms Lu proposed to engage in what Lord Hardwicke LC described in his celebrated judgment in Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125 at 156-157 [28 ER 82 at 100-101] as the fourth category of fraud. The Lord Chancellor explained the reason why Ms Lu’s failed attempt to pervert the processes of the law, outside the processes of the Tribunal, should not give her any entitlement to relief:

So of praemiums contracted to be given for preferring or recommending to a public office or employment : none of the parties are defrauded ; but the persons, having the legal appointment of these offices, are or may be deceived thereby : or if any person, agreeing to take the praemium, has authority to appoint the officer, it tends to public mischief by introducing an unworthy object for an unworthy consideration. These cases show what courts of equity mean, when they profess to go on reasons drawn from public utility.

42    The Court should not give relief to a person who is deceived into paying what he or she thinks will facilitate a bribe being paid in order to achieve an end that the person has chosen not to pursue in a lawful manner. Ms Lu may have been duped into believing that she was participating in a fraud. But her intention to participate, and her actual participation in, that dishonest conduct cannot be a vehicle for her now to seek relief in these proceedings. She fully understood the consequence of her decision not to respond to the invitation of the Tribunal was that its process would produce a result unfavourable to her: that is, the correct and lawful decision of the Tribunal would be a rejection of her application. The processes of the Tribunal were not interfered with by Ms Lu’s pursuit, however misguided, of an independent process of her intended fraud to obtain a reinstated or new visa through payment of a bribe.

43    Here, the Tribunal was not disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review by the fraud of Ms Zhao or any agent or third party of Ms Lu, who was the applicant for that review: SZFDE 232 CLR 189 at [51]. Rather, Ms Lu was a knowing participant in her own dishonest and fraudulent scheme, with Ms Zhao, to “get around” the result of the Tribunal’s processes. It is one thing for a person to be tricked by a fraudster, such as the migration agent in SZFDE 232 CLR 189, not to pursue his or her entitlement to participate in the Tribunal’s processes so that those processes will be stultified. It is another thing for a person to be tricked by a fraudster, such as Ms Zhao, not to participate in those processes, when an integral feature of the ruse is the person’s knowing participation in separate criminal conduct, such as bribery of officials, to achieve the same end as participating in the processes of the Tribunal could have produced. In the latter category of case, the effect of the fraud is not to stultify the Tribunal’s decision-making processes. Rather, the intended bribe was integral to the fraud. Like acting on bad advice, a person’s conscious decision to act on an invitation to participate in a criminal enterprise, provides a sound reason in policy that negates that person’s entitlement to complain that the fraud on him or her vitiated the Tribunal’s decision: SZFDE 232 CLR 189 at [53].

44    If we be wrong in the conclusion just reached that the Tribunal in this case had not relevantly been disabled from the discharge of its statutory functions, we consider that Ms Lu should have been refused, on discretionary grounds, relief in the form of a writ of certiorari or mandamus. It is clear that the learned Federal Magistrate, in the paragraph quoted at [20] above which he devoted to the exercise of discretion, did not take into account a matter relevant to the exercise of his discretion, namely that Ms Lu, as a result of her complicity in the bribery and corruption proposed by Ms Zhao, had effectively caused the conduct of the Tribunal from which she sought prerogative relief in the Federal Magistrates Court.

45    In our view, it would be rarely, if ever, that the personal circumstances of an applicant, however meritorious when considered in isolation, could outweigh knowing involvement by that applicant in an endeavour corruptly to pervert the legal or administrative processes for the regulation of his or her status. For the reasons explained by Branson and Graham JJ in the passages from SZLHP quoted at [27] and [28] above, the present is not such a case.

Conclusion

46    For the reasons which we have explained, the Minister’s appeal should be allowed and the orders of the Federal Magistrates Court should be set aside. In lieu of those orders it should be ordered that the application for review of the decision of the Tribunal of 11 April 2007 be dismissed.

47    The appeal was fully argued, with the assistance, as amicus curiae, of Mr Karp, who had appeared below for Ms Lu. The Minister was entitled to pursue the hearing of the appeal after Ms Lu had apparently departed from Australia in the circumstances referred to at [30] above. That is because the learned Federal Magistrate’s reasons for granting relief to Ms Lu had applied SZFDE 232 CLR 189 in a manner that we have found to be erroneous. The Minister and the Tribunal would have been bound by the orders of the Federal Magistrates Court had Ms Lu returned to Australia. More significantly, the Minister had a legitimate concern that the decision below could stand as a precedent unless corrected on appeal. Although Ms Lu ceased to involve herself in the appeal when she left Australia, she did not consent to the appeal being allowed. In those circumstances, the appeal had to be heard and the Minister had to incur the costs of that occurring. The Minister should have the costs of the hearing below and of the appeal.

Associate:

Dated:    13 December 2010