FEDERAL COURT OF AUSTRALIA

SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2.    The appellant have leave to amend his notice of appeal in the form of the Amended Notice of Appeal annexed and marked SZSJA to his affidavit affirmed on 15 November 2013.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court of Australia made on 8 July 2013 be set aside.

5.    The amended application be remitted to that Court for rehearing.

6.    The costs of the first hearing before the Federal Circuit Court of Australia abide the outcome of the second hearing.

7.    The first respondent pay the appellant’s costs of the appeal from the date on which the first respondent had notice of the proposed amended notice of appeal. Each party is to bear his own costs of the appeal up to that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

Introduction

1    This appeal is from the judgment of a judge of the Federal Circuit Court of Australia given on 8 July 2013. The primary judge dismissed the application to that Court, with costs.

2    As found by the Refugee Review Tribunal (the Tribunal), the appellant is a national of the People’s Republic of China (PRC). He applied for a protection visa based on his fear of persecution by reason of being a Falun Gong practitioner in China.

3    The present appeal concerns only the findings by the primary judge of the circumstances in which the appellant failed to appear before the Tribunal at the time designated for the hearing of his claim.

4    The grounds of appeal, as amended by leave granted at the commencement of the hearing of the appeal, are as follows:

1.    The Federal Circuit Judge made findings without any evidentiary basis and/or contrary to the evidence (refer to paragraphs [75], [78] & [80] of the judgment).

2.    The Federal Circuit Judge misconstrued the authority of [SZLHP] v Minister for Immigration and Citizenship (2008) 172 CLR 170, when his Honour held that the appellant was complicit in the placing of the signature on the Response to Hearing Invitation form.

3.    The Federal Circuit Judge failed to take into account all of the evidence when his Honour held that the appellant was denied the opportunity to attend the Refugee Review Tribunal hearing due to the negligence and not the fraud of the migration agent’s employee.

Background

5    The short history of the matter is as follows.

6    The appellant left the PRC on a valid passport issued to him on 4 May 2011. He applied to the Department of Immigration for a Protection (Class XA) visa on 15 March 2012. The delegate refused to grant the visa on 19 July 2012 and the appellant applied to the Tribunal for review of that decision on 15 August 2012. On 14 November 2012 the Tribunal affirmed the decision not to grant the appellant a Protection (Class XA) visa.

7    The appellant applied to what is now the Federal Circuit Court on 7 December 2012 for judicial review of the decision of the Tribunal. That application was amended on 6 March 2013 and further amended on 19 April 2013. The ground of the application as so amended was as follows:

1.    [The Tribunal] failed to exercise its jurisdiction as a result of third party fraud of the Applicant’s registered Migration Agent.

8    The appellant explained this ground by stating that he did not attend the hearing before the Tribunal as a result of fraudulent acts of his agent.

The Tribunal hearing

9    The Tribunal said that on 15 August 2012 it received an application for review of the delegate’s decision. The appellant was represented in relation to the review by his registered migration agent. On 17 October 2012 the Tribunal wrote to the appellant’s authorised recipient at the last address for service provided by him in connection with the review and notified the appellant that the Tribunal had considered all the material before it but that the Tribunal was unable to make a favourable decision on this information alone. The Tribunal invited the appellant to give oral evidence and to present arguments at a hearing to be held on 9 November 2012.

10    On 18 October 2012 the Tribunal received a Response to the Hearing Invitation indicating the appellant would be attending the hearing, and that the appellant’s authorised representative would not be attending the hearing.

11    The appellant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear nor did he contact the Tribunal to explain his failure to appear. The Tribunal hearing record was marked “NO SHOW”. In the circumstances, and pursuant to s 426A of the Migration Act 1958 (Cth), and being satisfied that the appellant had been given notice of a scheduled hearing which he failed to attend and failed to explain his failure to attend, the Tribunal decided to make its decision on the review without taking any further action to enable the appellant to appear before it.

12    Section 426A of the Migration Act provided:

426A  Failure of applicant to appear before Tribunal

(1)    If the applicant:

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

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

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

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

The hearing before the Federal Circuit Court

13    The hearing before the Federal Circuit Court took place on 3 May 2013.

14    The appellant filed an affidavit made on 6 March 2013. In that affidavit the appellant deposed that he was not provided with a copy of the document entitled “Response to Hearing Invitation” or advised that a time and date for the Tribunal hearing had been set or that his migration agent had responded to the Tribunal on the appellant’s behalf confirming that he, the appellant, would attend. Further the appellant deposed that the signature at the bottom of the Response to Hearing Invitation form was not his signature. The appellant deposed that he had followed up with his migration agent continuously throughout the entire visa application and Tribunal process. Had his agent told him that his matter was listed for hearing at the Tribunal he definitely would have attended. He said he felt that he was tricked and let down by his migration agent “when they did not tell me about the hearing and responded to the Tribunal without my knowing about it.” The appellant deposed that when the agent did tell him of the date it was to say that he had missed the hearing because the migration agent’s assistant had forgotten to tell him of the hearing date.

15    The appellant was cross-examined on his affidavit. He said he did not speak or understand or read any English. He was taken to 8 signatures on documents relating to his visa application and agreed that he had signed those documents. Those signatures were: on a form listing the persons included in the application for a Protection (Class XA) visa; twice on a form of application for a Protection (Class XA) visa; on a personal statement accompanying the application; on a form entitled “Advice by a migration agent/exempt person of providing immigration assistance”; on a further form entitled “Advice by a migration agent/exempt person of providing immigration assistance”; on a form entitled “Change of address and/or passport details”; and on a form entitled “Application for review to the Refugee Review Tribunal”. The appellant was also taken to the signature on the Application to the then Federal Magistrates Court filed on 7 December 2012 and agreed that it was his signature.

16    In contrast, the appellant said in cross-examination that the signature on the form “Change of Contact Details” was not his. He said “It’s not my signature, and I didn’t sign it.” He also said in cross-examination that the signature on the key document, “Response to Hearing Invitation” was not his.

17    The appellant agreed in cross-examination that he had signed a document when he did not know what it was. He agreed that he trusted the agent to prepare the right documents and he agreed that it had happened that the agent had submitted documents on his behalf even though he, the appellant, did not understand what the documents were. It was put to him in cross-examination that he would have been happy for the agent to file a document even if the appellant did not sign it. The appellant answered “No, I was not happy. Actually, I wanted to sign.” He said “I wanted him to act according to the law, however, I didn’t authorise him to sign any document for me.” In re-examination the appellant said he did not tell the agent that he was authorised to put his signature on a document.

18    The appellant was cross-examined as to credit. The whole of the appellant’s cross- examination makes it clear that his credit was being attacked on behalf of the Minister with a view to persuading the primary judge that either the appellant had authorised the agent to put his signature on any document, or that the appellant did not care whether the agent pretended to sign as the appellant, or signed as his agent.

19    The primary judge said the first question was whether or not the appellant signed the Response to Hearing Invitation form. He accepted the appellant’s evidence that the signature on that form was not the appellant’s signature.

20    But the primary judge took the view that what was important was the nature of the relationship between the appellant and those who were or had been acting for him. The appellant saw a Mr Li, whom the appellant believed to be the principal of the migration agency acting for him, as being in charge of his application. The appellant saw Mr Li as the person who would prosecute his affairs in relation to his application for the protection visa and the application for review. The appellant saw himself as being reliant on Mr Li in this regard. He acted on this basis. The appellant was content for Mr Li to prepare and file his application to the Federal Circuit Court. The appellant gave evidence that it was “common” for him to sign documents that his migration agent gave to him without knowing what the documents were. The primary judge said the appellant’s evidence was equivocal as to whether he actually gave his migration agent express permission to conduct his affairs in this way. Nevertheless it was clear, the primary judge held, that the appellant knew that this was happening. In the circumstances, the primary judge said, it was open to say that the appellant, by his own conduct, implicitly agreed with this method of operation and was complicit in the conduct of the migration agent in acting on his behalf in this fashion.

21    The appellant gave evidence that he spoke to Mr Li after the scheduled hearing with the Tribunal and his evidence was that he was told by Mr Li that an “assistant” in the migration agent’s office had forgotten to tell the appellant about the hearing. The appellant’s evidence was also that Mr Li apologised to him for forgetting to tell him of the hearing date.

22    The primary judge said that what was left, therefore, was that the appellant saw no real difficulty with Mr Li, or someone on his behalf, signing the Response to Hearing Invitation form. Given the other evidence from the appellant as to the conduct of his affairs by Mr Li, in which he willingly participated, both before and after the time of the Response to Hearing Invitation form matter, the appearance of a “forged” signature was consistent with this pattern of behaviour in their respective roles in their relationship.

23    The primary judge held that, taken at its highest, the failure to tell the appellant of the hearing date did not reveal fraud on the part of any third party such as to vitiate the process before the Tribunal.

24    The primary judge held that the evidence showed that at least implicitly the appellant agreed to the submission of relevant documents on his behalf even in circumstances where he had no knowledge of their content or import.

25    We set out the following paragraphs of the judgment of the primary judge which include the paragraphs which founded the grounds on which the appellant relied. “RHI” is an acronym for Response to Hearing Invitation:

[68]    An important part of the applicant’s evidence in this regard was that it was “common” for him to sign documents that his migration agent gave to him without knowing what the documents were. His evidence was that he “trusted” his migration agent to “prepare” documents for him. His evidence was also that documents were submitted in circumstances where he did not know what the documents were, nor the timing of any such lodgement.

[69]     Before the Court, the applicant’s evidence was equivocal as to whether he actually gave his migration agent express permission to conduct his affairs in this way. Nonetheless it was clear from his evidence that he knew that this was happening. [His evidence was that he did not know when the relevant documents were submitted to the Tribunal and to the Court.] In the circumstances, it is open to say that the applicant, by his own conduct, implicitly agreed with this method of operation and was complicit in the conduct of the migration agent in acting on his behalf in this fashion.

[70]     The applicant also gave evidence that he knew that there would be, at some time, a hearing before the Tribunal. He gave evidence that he frequently approached his migration agent to ask about his case, including when the Tribunal hearing would be held ([8] of the applicant’s affidavit).

…

[73]     Ultimately, the applicant himself largely provided the answer to the question which he has asked the Court to consider. That is, whether “a person” has committed fraud such as to vitiate the process before the Tribunal. The applicant’s evidence was that he spoke to Mr Li (in context, at a time after the scheduled hearing with the Tribunal). He says he was told by Mr Li that an “assistant” in the migration agent’s office had forgotten to tell the applicant about the hearing. In context, implicit in this is that someone other than the applicant signed the RHI form.

[74]     The applicant’s evidence was also that Mr Li apologised for this (that is, forgetting to tell him of the hearing date) and told the applicant he would “make it up to him” and either “go to the RRT or go to the Federal Court ([11] of his affidavit, and confirmed in oral evidence before the Court). There was no evidence from the applicant that he formed any view that Mr Li had lied to him about this. Nor was there any suggestion in the applicant’s submissions to the Court to this effect.

[75]     What is left, therefore, is that the applicant saw no real difficulty with Mr Li, or someone on his behalf, signing the RHI form. Given the other evidence from the applicant as to the conduct of his affairs by Mr Li, in which he willing participated, both before and after the time of the RHI form matter, the appearance of a “forged” signature was consistent with this pattern of behaviour in their respective roles in their relationship. That is, the applicant left the conduct of his migration affairs to Mr Li, and, to a lesser extent, to Ms Yu.

[76]     The applicant’s subsequent conduct in accepting Mr Li’s offer, and participating in the application to Court prepared by Mr Li, strongly supports the view that he accepted Mr Li’s explanation, and continued to rely on him.

[77]     Taken at its highest, the failure to tell the applicant of the hearing date may demonstrate negligence on the part of Mr Li or Ms Yu or both, in the management of their business, and negligence on the part of the unnamed employee. However, it does not reveal fraud on the part of any third party such as to vitiate the process before the Tribunal. That is, in the way explained in SZFDE.

[78]     In addition, even if the applicant had no specific knowledge that a signature purporting to be his signature was placed on the RHI form, at the time it was placed there, he was by his previous conduct, and confirmed by his subsequent conduct, complicit in the placing of the signature on the RHI form. His evidence is such that he was not only initially indifferent to the placing of the signature of the RHI form, but that this was consistent with how his agent conducted his application on his behalf.

[79]     In summary, therefore, the applicant and his agents conducted the applicant’s relevant affairs in such a way that the applicant left matters of substance and detail to them. The evidence shows that, at least implicitly, he agreed to the submission of relevant documents on his behalf even in circumstances where he had no knowledge of their content or import.

[80]     Even if the signature on the RHI form was put there by a third party, it was done in circumstances where the applicant was complicit in such conduct in the carriage of his matter. On his own evidence the applicant was denied the opportunity of a hearing, a hearing that he otherwise wished to attend, because of the negligent conduct of the migration agent’s employee. No fraud is revealed in these circumstances.

The submissions

26    As to ground one, that the primary judge erroneously made findings without any evidentiary basis and/or contrary to the evidence, the appellant focused on [68]-[69], [75] and [78]-[80] of the reasons for judgment. The appellant submitted first that these findings failed to appreciate the importance of the distinction between a practice of the appellant actually signing a document that the migration agent was entrusted to prepare as against not ever authorising the migration agent or anyone to put the appellant’s signature on a document before it was submitted. Second the appellant submitted that the evidence in no way amounted to a mode of operation or conduct by the agent that extended to being authorised to put the appellant’s signature on any form, thus there was no substratum of facts from which any such inference could be reasonably drawn. Third the appellant submitted the finding of complicity in the placing of his signature on the Response to Hearing Invitation form was contrary to the evidence and/or without any evidentiary basis.

27    The appellant submitted that the cross-examination of him did not go far enough to establish the requisite authority for any alleged “complicity”. The appellant was never asked whether the documents that the agent could submit were ones that the appellant had not signed. The appellant was never asked whether the agent could submit documents that the appellant had never been shown or knew nothing about but which had nonetheless been signed by someone else on his behalf. There was no evidence of any practice in which an authority to sign documents on his behalf was given by the appellant to his migration agents. The proper inference was that it was the documents that the appellant had already signed that the agent could submit on his behalf.

28    The appellant submitted that there was no evidence on which the primary judge could find any “method of operation” or “conduct of the migration agent” in which the agent or agents were authorised to place the appellant’s signature on documents and submit them. The finding of complicity had no factual foundation.

29    The appellant submitted there was no evidentiary basis for the primary judge’s finding that the appellant’s evidence was such that he was not only initially indifferent to the placing of the signature on the Response to Hearing Invitation form but that it was consistent with how his agent conducted his application on his behalf. The appellant submitted there was no evidence that the agent was authorised to sign documents on his behalf before the agent submitted them.

30    As to ground two, the appellant submitted the primary judge misconstrued the authority of SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152; (2008) 172 FCR 170 when his Honour held that the appellant was complicit in the placing of the signature on the Response to Hearing Invitation form.

31    The appellant submitted that that decision required two important facts for there to be any “complicity”. First there had to be actual knowledge of a third party’s deception or fraud by the appellant. It was not sufficient for the appellant to merely be “indifferent” to a “method of operation” or simply to acquiesce in the “conduct of the migration agent”. Secondly, the appellant had to be aware that the third party’s conduct would deceive or be a fraud on the Tribunal in order to constitute a collusion.

32    As to ground three, that the primary judge had failed to take into account all of the evidence when it held that the appellant was denied the opportunity to attend the Tribunal hearing due to the negligence and not the fraud of the migration agent’s employee, the appellant focused on [74] and [76] of the reasons of the primary judge.

33    The appellant submitted that the findings did not take into account the whole of the appellant’s evidence and missed the act of dishonesty in issue which was not the migration agent’s negligence in forgetting to tell the appellant of the hearing date but rather that someone at the office of the migration agent had signed the Response to Hearing Invitation form on behalf of the appellant without his authority.

34    The appellant submitted that the primary judge failed to appreciate that the appellant continued to rely on the agent in circumstances where the appellant had not been informed of the complete events. The primary judge failed to deal with the appellant’s evidence that he felt “tricked” by the agents after he found out about the agents’ dishonesty.

35    The first respondent (the respondent) submitted as to ground one that there was no evidence that the appellant’s signature was applied to effect some fraud, as opposed to the bona fide advancement of the appellant’s interests. The primary judge accepted that the appellant did not sign the Response to Hearing Invitation form, and that he was not aware of the hearing date. Although the signature was “forged” in the sense that it purported to be that of the appellant but was not his signature and was inserted without his specific knowledge, the primary judge also found that the appellant was aware that his agent was lodging forms on his behalf in relation to his visa application even when he did not know what the forms were. In cross-examination the appellant said he signed documents without understanding what they were for, what they contained or when they would be lodged. As his Honour stated, it was open to say that the appellant, “by his own conduct, implicitly agreed” with the manner in which his agent conducted his affairs and was “complicit” in his agent “acting on his behalf in this fashion”. The effect of what the primary judge was saying, in context, was not that the appellant was involved in some wrongdoing (so as to be, for example, complicit in a fraud), but rather that the appellant had at least implicitly authorised his agent to act as he did.

36    In light of the appellant’s evidence as to his agent’s conduct of affairs relating to his visa application, it was open to the primary judge to find that, notwithstanding his evidence that he did not sign the Response to Hearing Invitation form and did not specifically authorise his agent to sign it, “the appearance of a ‘forged’ signature was consistent with this pattern of behaviour in their respective roles in their relationship. That is, the appellant left the conduct of his migration affairs to Mr Li and, to a lesser extent, Ms Yu”. In the respondent’s submission, any signature on the Response to Hearing Invitation form was, in effect, on behalf of the appellant and with his implicit authority.

37    The respondent submitted the primary judge’s conclusion in this respect did not extend beyond the evidence. The general evidence given by the appellant in his examination in chief could not be viewed in isolation from the evidence the appellant gave in the course of the cross-examination which followed and upon which the primary judge relied.

38    Further, there was no evidence sufficient to support any proposition (which would have been essential to make out the appellant’s case) that whoever signed the appellant’s name to the Response to Hearing Invitation form did so fraudulently – either to the appellant or to the Tribunal. The need for that to be shown is clear from Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 at [33] per Tamberlin, Finn and Dowsett JJ; see also SZHVM v Minister for Immigration and Citizenship [2008] FCA 600; (2008) 170 FCR 211 at [47]-[48] per Middleton J. This insufficiency of evidence, the respondent submitted, was particularly apparent given the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368, cited in SZLIX at [33].

39    As to ground two, that the primary judge had misconstrued SZLHP, the respondent submitted that the primary judge’s conclusion in relation to the appellant’s “complicity” (at [78]) was in addition to his finding (at [77]) that, “at its highest”, the agent’s failure to tell the appellant of the hearing date may demonstrate negligence but not a vitiating fraud, notwithstanding that the appellant had no specific knowledge that a signature purporting to be his was placed on the Response to Hearing Invitation form. The “complicity” arose by reason of the appellant’s implicit agreement to the manner in which the agent managed the application process on his behalf. His Honour was not making any finding of wrongdoing, or participation in wrongdoing by the appellant.

40    The conclusion of the primary judge, the respondent submitted, was not the product of a misapplication of the reasons of this Court in SZLHP. His Honour’s reference to SZLHP should be seen as no more than an analogy and, in any event, as not essential to his judgment. Nothing in his Honour’s judgment was contrary to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 and the judgments of this Court that follow SZFDE.

41    The fraudulent actions of the migration agent in SZFDE had the immediate consequence “of stultifying the operation of the legislative scheme to afford natural justice to the appellants” (at [49]). In the present case, the primary judge found that the appellant knew of, and implicitly agreed to, his agent’s submission of documents to the Tribunal the contents of which he was not fully aware of, let alone understood. It was not in dispute that the appellant wished to attend a hearing and the agent’s conduct found by the primary judge was inconsistent with any attempt by the agent, for his own reasons, to keep the appellant from that hearing. As submitted above, there is no evidence to support any contention that a signature was placed on the Response to Hearing Invitation form for any reason other than to bona fide assist the appellant. The failure to inform the appellant of the Tribunal’s fixture of a hearing date was explicable in terms of innocent error or neglect and neither would be sufficient to show any fraud.

42    The respondent submitted that all of these factors relevantly distinguished the case from SZFDE, in which the appellants were deceived by the agent. Not only was the agent’s conduct in the present case not motivated by any desire for self-protection – as was apparent from his apology to the appellant and his offer to take his matter to the court below – it was also consistent with the ongoing pattern of conduct in relation to the appellant’s protection visa application, sanctioned by the appellant.

43    His Honour did not err in finding that the appellant’s “complicity” (in the sense found by his Honour) was relevant for the purposes of determining whether there had been a vitiating fraud on the Tribunal. Contrary to the appellant’s contentions, his Honour’s conclusion did not entail a misapplication of the Full Court’s decision in SZLHP; much less one that affected the judgment reached.

44    As to ground three, that the primary judge failed to take into account all of the evidence when concluding there was no operative fraud on the part of the agent, the respondent submitted the ground of appeal was premised upon the appellant’s contention that the relevant “dishonest conduct” was the agent’s “forging” of the appellant’s signature on the Response to Hearing Invitation form. However, the primary judge concluded that the “forging” of the appellant’s signature was implicitly sanctioned by him, consistently with the degree to which the appellant left the conduct of his application process to his agent. Again, there was no evidence capable of supporting the serious finding that the placement of the signature, or the submission of the form with the signature, was done with intent to defraud either the appellant or the Tribunal.

45    SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 was relevantly distinguishable in light of his Honour’s findings. In representing, on the Response to Hearing Invitation form, that the appellant wished to attend the hearing, the appellant’s migration agent was not deliberately fraudulent, nor was he recklessly indifferent as to what he told the Tribunal (cf SZIVK at [34]). As the appellant acknowledged in his evidence, he was aware that there was to be a hearing and made a series of inquiries of his agent as to when that would occur. It must have been obvious from those attendances – estimated by the appellant to have been more than 10 in number – that the appellant wanted to attend a hearing. The manner in which the form was signed was consistent with the agent’s knowledge of the appellant’s desire to attend. By reason of his agent’s failure to tell him of the hearing date, he missed his opportunity to do so. That failure was no more than a mishap, negligent perhaps, but not shown to have been fraudulent. On the view of the evidence taken by the primary judge, it was open to find that the “forged” signature did not constitute conduct that was fraudulent in the requisite sense.

46    That left only the agent’s failure to tell the applicant about the hearing date. The appellant’s own evidence as to the manner in which his agent told him about the missed hearing date did not indicate that this omission was anything other than a mistake on the part of the agent. Nor did any other evidence.

47    In SZFDE at [53], the High Court endorsed the statements made by French J in the Full Court, to the effect that there were “sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision”. In the face of that authority and SZLIX at [33], the appellant sought to contend that he was “arguably” misled in terms of the content of his agent’s apology. This was mere speculation. He made no separate allegation to this effect in the court below. Nor would it have been sufficient to establish fraud to make anything less than a clear allegation supported by evidence to the requisite standard described in SZLIX at [33].

48    As to all the grounds of appeal the respondent submitted that if all that caused the appellant not to attend the Tribunal hearing was that he was not notified of the date, once a hearing date was fixed, none of grounds one to three could succeed. Further, that failure would not itself be jurisdictional error: see SZFDE at [53], SZLIX at [33] and also SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 at [25] per Bennett, Reeves and Foster JJ; Cheng v Minister for Immigration and Citizenship and Anor (2011) 198 FCR 559 at [40] per Flick J; and SZNNJ v Minister for Immigration and Citizenship [2009] FCA 1356 at [21] per Cowdroy J.

Consideration

49    The primary judge held that the signature on the Response to Hearing Invitation form was not the appellant’s signature. The respondent accepted that the signature on the form purported to be that of the appellant and was added without the appellant’s specific knowledge. The real issue here is, first, whether the primary judge erred in making the finding that the appellant impliedly authorised the agent to write the appellant’s signature on documents to be forwarded to the Tribunal. The second issue is whether there could be a basis for finding fraud in the relevant sense if the appellant did not so authorise the agent.

50    In our opinion the primary judge erred in finding that the appellant had implicitly authorised the agent to put the appellant’s signature on the form and in so finding by reference to and by virtue of the findings that it was common for the appellant to sign documents that his agent gave to him without knowing what the documents were and that documents were submitted in circumstances where the appellant did not know what the documents were. The primary judge did not deal with the appellant’s evidence that he did not authorise the agent to put his signature on documents or, as a consequence, that the appellant’s signature was placed on the document without his specific knowledge. The primary judge did not consider the significance of the large number of documents which were, on the appellant’s evidence, signed by him. Neither did the primary judge expressly deal with the appellant’s evidence that he would not have been happy for his agent to file a document even if he, the appellant, did not sign it nor with the appellant’s evidence that he wanted to sign. There was no clear rejection of the appellant’s evidence on these critical matters: it is simply not dealt with.

51    Although it is not necessary to go so far as to say there was no evidentiary basis for the conclusions of the primary judge or that the conclusions of the primary judge were contrary to the evidence (compare ground one of the amended notice of appeal), in our opinion, without a clear rejection of the appellant’s evidence, it was an error for the primary judge to find that the appellant’s evidence was equivocal as to whether he actually gave his migration agent express permission to conduct his affairs by putting the appellant’s signature on documents to be sent to the Tribunal. Without a clear rejection of the appellant’s evidence, it was also an error for the primary judge to conclude that it was clear that the appellant knew that this was happening. It follows that the primary judge was in error in concluding that, on that basis, in the circumstances it was open to say that the appellant, by his own conduct, implicitly agreed with this method of operation and was complicit in the conduct of the migration agent in acting on his behalf in this fashion.

52    Considering the conclusion of the primary judge as one of implied authority, we accept that a principal may authorise an agent to sign in his name and that, at least in certain circumstances, implied authority would suffice. However implied authority must be consistent with express authority and in the present case, as it seems to us, in the absence of clear finding by the primary judge that the appellant’s evidence should not be accepted, the course of dealing did not establish that the agent had that implied authority. Further, the primary judge did not explore whether the signature on the Response to Hearing Invitation form constituted a misrepresentation.

53    On the facts of the present case the purported signature of the appellant appears to have been significant because the Tribunal reading the form as signed could reasonably assume that, because the appellant had apparently signed it, he had knowledge of the hearing date in the Tribunal. We so conclude even though it appears that there was no statutory or other requirement that the appellant sign the Response to Hearing Invitation form and, therefore, that the agent could have signed it in his own name on behalf of the appellant.

54    On our analysis, the findings by the primary judge that the appellant was “complicit” fall away. We would add however that it is not a happy choice of words to convey the meaning of implied consent.

55    Counsel for the appellant accepted that the three grounds in the amended notice of appeal were all different ways of looking at the same point which was that the primary judge had erred in finding implied authority.

56    We turn now to the second issue which is essentially one of causation: the respondent’s submission is that it was the negligent failure or oversight of the agent’s assistant to notify the appellant of the hearing date which was the effective cause of the appellant’s failure to attend the hearing in the Tribunal with the consequence that the placing of the signature was immaterial.

57    No doubt it is true to say that, on the facts as found, if the agent’s assistant had not forgotten to tell the appellant the hearing date the mischief created by the agent putting the appellant’s signature on the form would have been cured. As it seems to us however, that is not the appropriate perspective from which to consider the issue of whether there was fraud on the appellant and on the Tribunal, in the sense of affecting the manner in which the Tribunal exercised its powers.

58    In our opinion it is not possible to say that the forgery was irrelevant to the appellant’s non-attendance and the dismissal of the application. If the putting of the false signature on the document had not occurred, and if the appellant had signed the form, the possibility that the hearing date would have been brought to the attention of the appellant cannot be ruled out. Further, if the question is posed “Why did the hearing in the Tribunal proceed in the absence of the appellant?” the answer may be because the Tribunal had a document in front of it that looked as though it was signed by the appellant in Mandarin, and therefore would convey to the Tribunal that the appellant must have known the date and had said that he would be there at the hearing. Indeed, this is the impression given by the Tribunal’s reasons, which are uniformly expressed on the basis that it was the appellant who responded to the Tribunal’s hearing invitation. Considered specifically by reference to s 426A of the Migration Act, the exercise of the discretion by the Tribunal could have been affected by the appearance of the appellant’s signature on the form which clearly implied that the appellant knew the date for the hearing before the Tribunal and that the appellant had said he would attend that hearing.

59    This is a sufficient basis on which the matter should be remitted to the Federal Circuit Court for rehearing because there may be a sufficient connection between the false signature appearing on the form and what the Tribunal did, specifically the exercise by the Tribunal of its discretion under s 426A of the Migration Act. Further, in our view, the primary judge has not made sufficient findings of fact for this Court to be in a position to determine the application. As the parties before the Full Court accepted, because the appellant was cross-examined as to the credibility of the account he gave concerning his dealings with his migration agent, the manner in which he signed or did not sign forms and what he did or did not authorise the agent to do, in these circumstances the matter should be remitted. In light of the insufficient findings of fact, we would not preclude further evidence on the rehearing.

60    It is not possible or appropriate in a case where fraud is alleged to give specific guidance to the Federal Circuit Court as to findings of fact. However we note the following questions as relevant to the task of that Court if the Federal Circuit Court were to find that the agent had placed the appellant’s signature on the Response to Hearing Invitation form without any authority, express or implied.

61    In SZFDE, the fraud on the visa applicants was the fraudster advising the family not to attend the Tribunal hearing and doing so for his own self-protection. Here, is it fraud on the appellant for the migration agent to place the appellant’s signature on the form so depriving him of direct information about the Tribunal hearing? Did it also mislead the Tribunal into believing the appellant agreed to, knew about, and said he would attend his hearing opportunity on the Tribunal’s nominated date of 9 November 2012? As we have said, it appears from the Tribunal’s reasons at [29] that this was the basis upon which the Tribunal proceeded.

62    Another question is whether the agent should be taken to have been acting in the appellant’s best interests in placing the appellant’s signature on the form without authority? Does this preclude a finding of fraud against the appellant? Does it preclude a finding of fraud against the Tribunal? It will be necessary for the Federal Circuit Court to make findings as to the agent’s state of mind.

63    It will be a question for the Federal Circuit Court whether the person who signed the Response to Hearing Invitation form should, in terms of dishonesty or fraud, be judged by the standards of ordinary decent migration agents: see Macleod v R [2003] HCA 24; 214 CLR 230 at 242; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 162, referred to in a bankruptcy context in Marcolongo v Chen [2011] HCA 3; 242 CLR 546 at 559.

64    Section 314(2) of the Migration Act provides that a registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct. It follows, in our opinion, that relevant to but not determinative of the standards of ordinary decent migration agents are the terms of the Code of Conduct for Registered Migration Agents, particularly that part dealing with the making of statements which the agent knows or believes to be misleading or inaccurate. Similarly, if the agent is found to have acted without the authority of the appellant it may be relevant to consider as going to the standards of ordinary decent migration agents whether or not the agent may have contravened any statutory provisions such as, for example, s 234(1)(a) of the Migration Act dealing with the presentation to an official of a false document.

65    Having found the facts, it will be necessary for the Federal Circuit Court to apply SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501.

Leave to file written submissions after the hearing of the appeal

66    Towards the end of the hearing of the appeal, the Court granted leave to each party to exchange and file short submissions directed to the significance, if any, of the Code of Conduct for Registered Migration Agents referred to in s 314 of the Migration Act and the regulations, together with any provision of any statute, such as, but not limited to, the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth). In the event, the appellant filed supplementary written submissions which were longer than the Court had contemplated but which did deal with that topic. The respondent also filed further written submissions pursuant to that leave but, in our view, went beyond that leave in paragraphs 7-10. As the majority said in NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90 at [192]: “This is unsatisfactory. It is impermissible to file further submissions without leave, and this cannot be evaded by adding on to submissions filed with leave other material for which leave should have been obtained.” (Footnote omitted) See also the comments of, and cases referred to by, the New South Wales Court of Appeal in Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498; (2011) 282 ALR 336 at [57]-[61], and Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 782 per Logan J.

67    The filing of such submissions is to be deprecated because it runs counter to the principle that the hearing, in open court, is the time and place to present argument; it is at the hearing that a party has the opportunity to put his or her case; and a fair and effective process requires that written submissions beyond the scope of any leave granted should not be filed lest there be a fresh round of answering submissions. So that the other party is not put at a disadvantage, the proper course to take is to ignore the passages in the further written submissions which go beyond the limited grant of leave. This we have done.

Conclusion

68    The name of the first respondent should be amended to “Minister for Immigration and Border Protection”. The appeal should be allowed and the orders of the primary judge set aside. The amended application should be remitted to the Federal Circuit Court of Australia for rehearing.

Associate:

Dated:    18 December 2013