FEDERAL COURT OF AUSTRALIA

SZSXT v Minister for Immigration and Border Protection

[2014] FCAFC 40

THE COURT ORDERS THAT:

1.    The decision and orders of the Federal Circuit Court of Australia dated 6 September 2013 be quashed.

2.    The application filed on 11 June 2013 for an extension of time under s 477 of the Migration Act 1958 (Cth) be redetermined by the Federal Circuit Court of Australia according to law.

3.    The Minister for Immigration and Border Protection not remove the applicant from Australia until the application referred to in paragraph 2 above is heard and determined or until further order of the Federal Circuit Court of Australia.

4.    The Minister for Immigration and Border Protection pay the applicant’s costs of and incidental to the amended originating application filed on 17 January 2014.

5.    The amended originating application filed on 17 January 2014 otherwise be dismissed.

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

REASONS FOR JUDGMENT

1    These proceedings raise some important issues concerning fraud on a court in public law litigation.

Procedural background

2    The proceedings involve formally both an appeal, as to which see [11] below, and an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). That application was heard by a Full Court in accordance with a direction by the Chief Justice under s 20(1A) of the Federal Court of Australia Act 1976 (Cth).

3    The background to the proceedings is described in Robertson J’s reasons for judgment in SZSXT v Minister for Immigration and Border Protection [2013] FCA 1440.

4    In summary, on 17 December 2013 the applicant filed an urgent originating application and interlocutory application in the Federal Court seeking various relief, including restraining the Minister from removing the applicant from Australia, pending the hearing of his originating application seeking judicial review of a decision of the Federal Circuit Court. The Federal Circuit Court had refused to extend time to enable the applicant to seek judicial review of an earlier decision of the Refugee Review Tribunal (the Tribunal), in which the Tribunal had upheld a decision of the Minister’s delegate to refuse the applicant a protection visa.

5    Justice Cowdroy heard the applicant’s interlocutory application on 17 December 2013. The applicant argued that the Federal Circuit Court judge had committed a jurisdictional error in refusing to grant an extension of time by:

(a)    unreasonably failing to give due weight to an error of the Tribunal, namely its failure to properly consider the 2012 UNHCR Eligibility Guidelines on the issue of relocation within Iraq;

(b)    taking into account an irrelevant consideration by finding that the proper remedy available to the applicant was to approach the Minister rather than the Court; and

(c)    a fraud having been committed upon the Court by Mr Toufic Laba Sarkis (Mr Sarkis), who represented that he had expertise enabling him to properly conduct the applicant’s application.

6    Justice Cowdroy refused to grant an interlocutory injunction, holding that, on the material before him, the applicant had not demonstrated a sufficient likelihood of success to warrant such relief (see SZSXT v Minister for Immigration and Border Protection [2013] FCA 1394). The originating application under s 39B of the Judiciary Act was adjourned for directions on 20 December 2013.

7    Later on 17 December 2013, the applicant made a further interlocutory application ex parte to Cowdroy J to prevent the applicant’s removal from Australia to allow him to apply for leave to appeal against Cowdroy J’s decision earlier that day. That application was granted (see SZSXT v Minister for Immigration and Border Protection [2013] FCA 1416).

8    The application for leave to appeal from Cowdroy J’s interlocutory judgment was heard by Robertson J on 20 December 2013. The Minister then raised no objection to the applicant relying on some additional evidence, which had not been adduced before Cowdroy J.

9    Justice Robertson delivered his judgment on 24 December 2013 (see SZSXT v Minister for Immigration and Border Protection [2013] FCA 1440). His Honour found that, having regard to the evidence then adduced, there was a serious question to be tried as to whether the Federal Circuit Court judge’s decision refusing an extension of time was affected by fraud relating to Mr Sarkis’ role. His Honour described the arguable fraud in [77] as follows:

The arguable fraud was, as a matter of inference, that the Federal Circuit Court was not told of the reasons for the delay in filing the application to that Court because Mr Sarkis, who knew both that there was a delay and the reasons for it, which the applicant did not, could not explain his involvement and concealed his involvement because to do otherwise would expose his apparent deceit of the applicant and his apparent breach of the provisions of the Migration Act involving the provision of migration assistance by him even though not a registered migration agent.

10    On 17 January 2014 the applicant filed an amended originating application in which he sought to challenge the decision of the Federal Circuit Court judge on the following broad grounds:

(a)    failure to take into account a relevant consideration in the form of the 2012 UNHCR Eligibility Guidelines and unreasonableness in stating that the applicant’s remedy was to approach the Minister rather than the Court;

(b)    taking into account an irrelevant consideration in stating that the applicant’s remedy was to approach the Minister rather than the Court;

(c)    a third party, Mr Sarkis, had committed fraud on both the applicant and on the Federal Circuit Court by holding himself out as having relevant expertise and conveying to the Court a false impression as to the degree of his involvement and responsibility;

(d)    failure to consider a relevant matter, namely that the Tribunal erred in its consideration of the issue of relocation within Iraq by failing to take into account the existence of any logistical, safety or other impediments to the applicant gaining access to the part of Iraq proposed for his internal relocation; and

(e)    the applicant has a right under the Constitution to have the Tribunal’s decision reviewed for jurisdictional error, which right cannot be abrogated by the fraudulent act of a third party.

11    At the hearing of both the appeal and the amended originating application before the Full Court, the parties were agreed that the appeal from Cowdroy J’s decision to refuse interlocutory relief had been overtaken by events, that the appeal should be dismissed and an order made that the costs of the appeal be costs in the other proceeding. Orders were made accordingly.

12    In these circumstances, it is necessary to deal only with the amended originating application. Although not articulated in submissions, the basis of the jurisdiction of this Court is that by s 39B(1) of the Judiciary Act it has jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth and the judges of the Federal Circuit Court are such officers. Their position is to be distinguished from that of a judge or judges of the Family Court of Australia who are excluded from s 39B(1) by s 39B(2) of the Judiciary Act.

Evidence

13    The applicant relied on three affidavits, two affirmed by him, on 19 December 2013 and 17 February 2014 respectively, as well as an affidavit by his solicitor (Ms Burrows) which was affirmed on 17 February 2014. Ms Burrows’ affidavit annexed documents which indicated that Mr Sarkis had assisted various other people with migration matters and also annexed a document relating to pending charges against Mr Sarkis for providing migration assistance while not a registered migration agent.

14    The applicant was cross-examined at some length in the course of the hearing of the application by the Full Court.

15    The Minister objected to substantial parts of the applicant’s affidavit evidence on the basis that it was not new evidence. We overruled those objections in the course of the hearing. The reasons for that ruling are given at [64]-[82] below.

Factual matters

16    It is convenient if we now provide a broad summary of the applicant’s evidence and state our findings. Unless indicated otherwise, we accept the applicant’s evidence describing the relevant events which occurred and his state of mind at the relevant times.

17    The applicant cannot speak or read or write English and he relies upon an interpreter to translate and read documents and to communicate with the government.

18    On or about 12 April 2012, he arrived at Christmas Island as an asylum seeker from Iraq and on 19 July 2012 he applied for a protection visa.

19    On 7 September 2012, the applicant was notified that his application for a protection visa had been unsuccessful.

20    The applicant sought a review of that decision in the Tribunal. He was represented at the Tribunal’s hearing by a Mr Kevin Ford (Mr Ford) from Playfair Visa and Migration Services. He understood that the Department had arranged for that representation.

21    On or around 12 April 2013, the applicant was told by someone from Mr Ford’s office that he had been unsuccessful in his review in the Tribunal and that he had 32 days to put in the application (to the Federal Circuit Court). He was later given a copy of the Tribunal’s decision but he did not know what to do.

22    There appears to have been a breakdown in communication between the applicant and Mr Ford as to whether or not proceedings had been commenced in the Federal Circuit Court on his behalf. Although the applicant says that he thought that this had occurred, he was told by the Department some time in May 2013 that it had no record of any such proceeding having been commenced and that he only had two days to lodge his application.

23    Some time in May 2013, the applicant was referred by friends to Mr Sarkis for assistance. The applicant telephoned Mr Sarkis, who told him to come to his address and that “I am professional at this”.

24    In early May, the applicant went to Mr Sarkis’ address. Mr Sarkis told him that:

I understand your situation and I have helped many people before you and I have got them permanent citizenship. I am professional and I will get you residency, you let me do all paperwork and you just sign.

25    The applicant later clarified that he now thinks that he had about six days left to lodge his application when he met with Mr Sarkis (which suggests that the meeting took place around 10 May 2013). He says that Mr Sarkis told him at that meeting that they still had time to lodge an application and that he was not to worry because Mr Sarkis was “going to apply for you for the Federal Court”. At all relevant times, Mr Sarkis was neither a lawyer nor a registered migration agent.

26    On 6 May 2013, Mr Sarkis wrote on a letter which the applicant had received from the Department a request that the Tribunal send copies of the CDs of the Tribunal hearing. Although Mr Sarkis wrote the request in his own handwriting and apparently dated it, the request was signed by the applicant. The request appears to have been sent.

27    The applicant paid Mr Sarkis $500 cash (for which he received a receipt) and then later another $1000 cash. It is not clear what these payments were for. The applicant understood that Mr Sarkis was representing him in his appeal. He signed documents when asked to by Mr Sarkis. He says that Mr Sarkis never told him what he was signing and he trusted Mr Sarkis to get him a permanent visa.

28    The applicant said that he believed that Mr Sarkis would lodge an application for him to the Federal Circuit Court on time (which in fact had to be done by 16 May 2013).

29    The applicant met again with Mr Sarkis in what he initially said was the first week of May 2013. He said that he was told by Mr Sarkis to sign a paper, which was described to him by Mr Sarkis as the “application for the court, all you do is sign her (sic) and I do the rest” and that he would get permanent residency. It is more likely that the document referred to by the applicant is the request for the CDs of the Tribunal hearing which, as noted above, appears to have been made on 6 May 2013.

30    On 11 June 2013, Mr Sarkis was due to appear in the Downing Centre on charges of unregistered migration agent offences, matters which the applicant only became aware of in December 2013.

31    The applicant says that on 10 July 2013 there was a hearing in the Federal Circuit Court concerning his case but that Mr Sarkis never told him about it, nor was he told that there was any need for him to do anything further in support of what he believed was the application which had been filed on his behalf in that Court. He says that he was not aware that Mr Sarkis had filed an affidavit which only attached the transcript of the Tribunal hearing. The applicant says that he was also not aware at this time that his application was not filed by Mr Sarkis until 11 June 2013.

32    The application filed in the Federal Circuit Court on 11 June 2013 was expressed to be an application under s 476 of the Migration Act 1958 (Cth) (the Act). It was in English, was signed by the applicant and was dated 10 June 2013. It also stated that the applicant was seeking to have time extended under s 477 of the Act. The application, which was prepared by Mr Sarkis, set out the following grounds in support of the application for an extension of time:

1.    I relied on my lawyer to do the follow up on my application and I was not aware that an appeal was not done until I recently was asked by my Compliance Case Officer that I should lodge a Federal Court application which I now consider isnecessary (sic) in the interest of administration of justice as I do have an arguable case.

2.    The decision made by the Refugee Review Tribunal is unreasonable and arguable.

33    On page 1 of the filed application, it is stated that the matter was listed for hearing on Wednesday 10 July 2013 at 9:30 am.

34    In our view, no relevant significance attaches to the fact that the applicant apparently signed the application on 10 June 2013. It was not put to the applicant in cross-examination that he understood that the document which he signed apparently on that day was the application and that, therefore, he must have known that it was late. It is important to bear in mind that the applicant neither speaks nor reads English. As he was instructed to do so by Mr Sarkis, the applicant signed several documents but we are satisfied that he did not understand what those documents were. It was also evident from his cross-examination that he has no understanding of the Gregorian calendar.

35    On 6 September 2013, Mr Sarkis told the applicant that he would take him to the court for a “meeting”. They first went to a coffee shop and Mr Sarkis handed the applicant a piece of paper with words on it for him to say if he was asked to talk to the judge at what the applicant again described as “the meeting” at court. The applicant said that he no longer has that document. The applicant said that he believed that Mr Sarkis was a lawyer who was about to defend him because they went to the court together. He also said that he did not know how to answer the questions asked by the judge beyond that which was on the paper he had been given by Mr Sarkis.

36    The applicant gave evidence to this Court that, at the hearing in the Federal Circuit Court he did not know what to do and he relied on Mr Sarkis. Mr Sarkis told him where to sit, which was alongside the Minister’s lawyer. Mr Sarkis sat in the row behind the applicant. He gave evidence to this Court that he looked at Mr Sarkis but that Mr Sarkis was writing notes on a pad. The applicant said that he was nervous and did not understand what the judge was saying. He gave evidence to this Court that he was also expecting the interpreter at the hearing to defend him. When he was asked by the judge why his application was put in late, he claims that he responded: “I have my solicitor Toufic Laba Sarkis, I don’t know”. It should be noted at this point that the transcript of the hearing before the Federal Circuit Court does not record the applicant saying those words. We conclude that the applicant did not say them.

37    The transcript does record, however, the applicant giving the following evidence through the interpreter when he was asked by the judge to explain the circumstances surrounding the late filing of his application, noting that the Minister did not dispute before us that the applicant was obviously reading from the script which Mr Sarkis had prepared for him:

Your Honour, I’m the applicant and I want to thank you for giving me the chance today to talk. When the RRT refused by (sic) application, I did not receive their decision, but instead I received a phone call from the Department of Immigration and the migration agent. The person told me that I am from Playfair office and on - like, from their solicitor, Kevin Ford - I’m talking on behalf of Kevin Ford, yes. And she told me that the office will put on an appeal for me to the court. That’s why I was, like, in no peace of mind. After a little while, I received a phone call from the Department of Immigration telling me that I have to go to see them to check on my status. I went to the Department of Immigration as usual, like, you know, I do every month and they told me there is no application for me in court.

That was the first week in May. I called Kevin Ford’s office straight away. That’s my lawyer from the Department of Immigration. They told me that the application is already in court and everything’s okay. Then I went back to the Department of Immigration. I told that my application is already in court. They told me there was no application for me on the system, the computer. They told me to call the lawyer again, and make sure of that. I called - made a phone call to the lawyer again, Kevin Ford. They told me to leave my number and the lawyer would call me back. I did not receive any call.

I met Mr Laba-Sakis (sic), who’s an accredited interpreter, and he helped me to get the recording, and the decision, and he put an application for me in court. And he always, like, you know, put the translation of the taping. Your Honour, I’m not responsible to put the application late. I was relying on the lawyer, Kevin Rudd (sic), because he’s from the Department of Immigration.

38    The Federal Circuit Court refused to extend time. In his reasons for judgment in SZSXT v Minister for Immigration & Anor [2013] FCCA 1293, Judge Driver said at [12] that the extension of time was refused because, at least in part, the delay had not been sufficiently explained:

The applicant gave evidence that, around the time the appeal period expired, he consulted Mr Laba-Sarkis. Mr Laba-Sarkis requested the audio recording of the Tribunal hearing. I accept that evidence, noting that Mr Laba-Sarkis’s affidavit introduces a transcript of that recording. However, I reject the applicant’s evidence as to the timing of his consultation with Mr Laba-Sarkis. The applicant was taken under cross-examination to page 212 of the court book. That is a copy of the notification letter from the Tribunal with a handwritten request for the hearing CDs. The applicant gave evidence that the handwritten request was made by Mr Laba-Sarkis. It is dated 6 May 2013. The appeal period expired on 16 May 2013. It follows that the applicant consulted Mr Laba-Sarkis and arranged for him to assist him with his appeal to the Court at least 10 days before the appeal period expired. That was, in my view, sufficient time for the applicant, with Mr Laba-Sarkis’ assistance, to file the application. However, the application was not filed until 11 June 2013. That delay is not explained by the request for the hearing CDs. While useful to support a judicial review application, a transcript is not an essential prerequisite. I find that the applicant has not adequately explained his delay in coming to Court.

39    Returning to summarise the applicant’s evidence before us, the applicant says that he signed the forms which he was asked to sign by Mr Sarkis and that he trusted him and that he, the applicant, did not know anything about Australian law or courts. He says that it was not until much later that he found out that Mr Sarkis had done such a “bad job for my case”. He says further that if he had known that Mr Sarkis was not a lawyer, he would not have given him paperwork or trusted him and that he would have looked for a lawyer to assist him.

40    Despite the adverse decision of the Federal Circuit Court, Mr Sarkis told the applicant on later occasions that he should not worry and that he would get residency because Mr Sarkis was doing “paperwork” for him. The applicant called Mr Sarkis frequently and was always told that he had nothing to worry about and that Mr Sarkis would look after matters. On 20 September 2013, Mr Sarkis sent a letter on behalf the applicant to the Minister seeking a reconsideration of the refusal to grant him a visa. The letter was written on Mr Sarkis’ letterhead, which described him as an accredited interpreter.

41    On 1 December 2013, at Mr Sarkis’ request, the applicant signed a further application for a protection visa.

42    On 6 December 2013, the Department informed the applicant that his visa had expired and that he had to attend the Department’s Sydney city office. He says that he was told by Mr Sarkis at that time that he had “to visit the immigration to pick up your visa”. The applicant says that he did not think there was any problem because Mr Sarkis was attending to the matter and he also thought that bridging visas were renewed automatically.

43    When the applicant attended the Department’s office for what he thought was the purpose of being interviewed for another bridging visa, he was detained and taken to Villawood Detention Centre. He says that this shocked him because he did not know that he “was in trouble”.

44    Mr Sarkis continued to assist the applicant with filling out more forms and he told him that once the papers were lodged the applicant would be released in days. He says that he believed Mr Sarkis because he was “the professional”.

45    The applicant gave further evidence before this Court of events which took place in December 2013, during which time Mr Sarkis continued to assist him, leading up to 12 December 2013 when Mr Sarkis received a letter from the Minister which enclosed a notice of intention to remove the applicant from Australia on 17 December 2013 to Baghdad.

46    Under cross-examination before this Court, the applicant was repeatedly asked why he did not inform the Federal Circuit Court on 6 September 2013 about Mr Sarkis’ responsibility for the late filing of the application. The applicant repeatedly said that this was because he was not aware at the time of the hearing that Mr Sarkis had not filed his application. He said that he thought that he had. We accept his evidence. We found the applicant to be a truthful and credible witness. It is evident that he has and had little or no knowledge of Australian court practices or procedures. It is also evident that he had little or no independent understanding or appreciation of what was happening before the Federal Circuit Court on 6 September 2013. We accept that he had a genuine belief that Mr Sarkis would represent him and he trusted Mr Sarkis to take proper care of his interests. He read out the script which Mr Sarkis had prepared for him and instructed him to read to the judge. That script blamed Mr Ford for not having filed the application, in circumstances where the applicant believed that Mr Sarkis had rectified the problem and he had no reason to believe that the delay was, as a matter of inference, occasioned by Mr Sarkis.

47    We also consider that it is plain from both his evidence and the transcript that he was confused as to what was happening on 6 September 2013. He expected that Mr Sarkis would represent him. The only person in the Court on that day who, as a matter of inference, knew the real circumstances surrounding the late filing of the application was Mr Sarkis and he remained silent and passive.

Consideration

48    Mr Sarkis was not called as a witness in the present proceedings. The Minister did not make any Jones v Dunkel (1959) 101 CLR 298 submission in relation to this matter (nor do we suggest that he should have). In circumstances where Mr Sarkis is facing serious criminal charges in another Court, the Court appreciates the need for caution. Moreover, Mr Sarkis has not participated in the proceedings and has not had an opportunity to respond to the serious allegations made against him. A similar situation arose in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE) in which the High Court made the following relevant observations at [38]:

Further, Mr Hussain is absent from these proceedings, and a finding of fraud is a serious matter. But the identification of the motives of Mr Hussain in acting as he did may be a matter of inference drawn from the available material …

We adopt the same approach.

Fraud on the applicant and the Federal Circuit Court

49    In SZFDE, the High Court stated some relevant principles in a case involving a third party’s fraud in the context of proceedings before the Refugee Review Tribunal. Although the applicant here alleges fraud on the Federal Circuit Court, we consider that those principles also have some relevance here.

50    In SZFDE, the Tribunal invited a family who had sought a review after being refused protection visas to appear before it pursuant to s 425(1) of the Act. A rogue, who wrongly claimed to be entitled to practice as a solicitor and migration agent, advised the family not to attend the hearing. That advice was followed. In rejecting the family’s application for review, the Tribunal relied on the family’s failure to attend the hearing. The High Court held that the adviser’s dealings with the family were fraudulent and also that they had the effect of stultifying the operation of the legislative scheme established by provisions such as s 425 of the Act. Accordingly, the Tribunal’s jurisdiction had not been exercised and certiorari and mandamus were issued.

51    SZFDE establishes the following principles (omitting case references):

(a)    in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” [8];

(b)    different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution [11];

(c)    “fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith” [17];

(d)    in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud [20];

(e)    another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted” [22];

(f)    in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative [25]-[27]; and

(g)    there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time [28]. But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised [51]-[52].

52    It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17, the Full Court (Tamberlin, Finn and Dowsett JJ) emphasised the necessity of demonstrating that an agent’s fraud in dealing with a visa applicant has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. In that case, a protection visa applicant complained that he had failed to attend an adjourned hearing of the Tribunal because his migration agent had not advised him of the hearing. The Full Court held that the evidence concerning the conduct of the agent could not support a finding of fraudulent conduct by that person which caused the visa applicant not to attend the adjourned hearing. The Full Court found that no inference could be drawn that it was the agent’s dishonest failure that resulted in the applicant not being told about the adjourned hearing and that it was equally probable that the failure was due to an error or omission on the part of the agent. At [33], the Full Court said:

… [A]n agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Pt 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects (sic) the tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-a-vis the visa applicant: SZFDE at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368; [1938] ALR 334 at 342-3 and 344-5 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.

53    The circumstances in SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871 provide a further illustration of dishonest or fraudulent conduct of a third party which disabled the Tribunal from discharging its statutory functions, and attracted judicial intervention. In that case, the Tribunal found that it did not have jurisdiction to entertain a review application because the application had been lodged late (see s 412(1)(b) of the Act). The applicant sought a review of that decision in the Federal Magistrates Court. He said that he had been assisted by “a friend”, who also helped prepare his primary visa application, and that he had been repeatedly told by the person assisting him that his review application had been lodged by that person. The applicant said that he was shocked to learn subsequently that this had not happened. The Federal Magistrates Court dismissed the application on the basis that the circumstances did not fall within SZFDE and simply represented “bad or negligent advice or some other mishap”.

54    On appeal, Greenwood J disagreed. At [46], his Honour said:

The combination of conduct on the part of the person assisting which arguably contravenes these provisions of the Migration Act coupled with misrepresentations arguably dishonestly made as to the lodging of the review application elevates the matter, accepting the applicant’s version of the facts for present purposes, beyond mere promises or bad or negligent advice or simply some other class of unfortunate mishap.

55    At [54] (and see also at [67]), Greenwood J said:

In this case, the applicant’s participation in a decision-making process has been affected by the material dishonesty of another. It has caused the applicant to be prevented from engaging with that process as he would have wished, and sought to do, in reliance upon what ultimately turned out to be the arguably dishonest conduct of the assisting person. The material dishonesty of the assisting person has, in one sense, conveyed a false impression to the decision-maker that the applicant has chosen not to invoke the review jurisdiction of the Tribunal within the prescribed time or has chosen to invoke it by simply making an application outside the prescribed time.

56    It should be emphasised that it was unnecessary for Greenwood J to make final findings on these matters in circumstances where the applicant was seeking leave to appeal from the interlocutory decision of the Federal Magistrates Court, an extension of time for an application for leave to appeal and leave to appeal itself. Justice Greenwood granted all that relief.

57    It is to be noted that each of the authorities discussed above dealt with an alleged fraud on the Tribunal, and not on a Court exercising judicial review jurisdiction. In our view, however, a similar approach is appropriate. In the case of the Federal Circuit Court, s 476 of the Act vests in that Court the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution (with the exception of decisions identified in s 476(2), none of which is relevant here). Accordingly, the Federal Circuit Court has jurisdiction to review relevant migration decisions for jurisdictional error and to grant any of the remedies which the High Court is able to grant under that constitutional provision. Section 476 of the Act has the effect of extending the “due administration of the federal law within the field in which the superintendence of Ch III operates” so as to encompass the Federal Circuit Court (see SZFDE at [21]). The conferral of jurisdiction in the nature of judicial review on the Federal Circuit Court is a recognition by the legislature of the importance in our legal system of providing an opportunity for persons aggrieved by specified migration decisions to challenge the lawfulness of those decisions in that Court. The significance of that jurisdiction as an aspect of the rule of law is further underlined by s 477 of the Act which, although imposing a time limit of 35 days for an aggrieved person to enliven the Court’s jurisdiction, also vests a discretion in the Court to extend that time where the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order” (emphasis added).

58    Part 8 of the Act deals with the jurisdiction and procedures of courts in reviewing particular decisions. The procedures are not as detailed as those set out in Pt 7 of the Act (which relates to review by the Tribunal of particular visa decisions). The difference is presumably explicable by the fact that the legislature intended that general rules of court practice and procedure and other relevant principles applicable to curial proceedings would apply to review by the courts of relevant migration decisions, subject to any specific provision to the contrary in the Act.

59    So far as concerns the jurisdiction of the Federal Court in relation to judges of the Federal Circuit Court, principles were stated in Craig v South Australia (1995) 184 CLR 163 (Craig) at 175-176 per Brennan, Deane, Toohey, Gaudron and McHugh JJ in relation to the availability of certiorari (a public law remedy) for fraud on an inferior court:

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.

(Footnotes omitted; emphasis added).

See also SZFDE at [17].

60    Having regard to these principles and our factual findings above, we consider that this is a case where a third party has engaged in conduct which has not only impacted upon the applicant personally but has also amounted to a fraud on the Federal Circuit Court and disabled it from performing its important supervisory function as envisaged by the Act. In particular:

(a)    the applicant was led to believe by Mr Sarkis that he would attend to filing the applicant’s application for review in time but he failed to do so and he did not inform the applicant of that fact;

(b)    in circumstances where the applicant was entirely dependent upon and trusted the advice and assistance he thought he was receiving from Mr Sarkis, he attended the Federal Circuit Court on 6 September 2013 in circumstances where he did not appreciate that his application had been filed late by Mr Sarkis and that he would be expected to offer an adequate explanation for that delay;

(c)    the applicant was instructed by Mr Sarkis to read to the judge a script prepared by Mr Sarkis, the burden of which was to blame another person, Mr Ford, for the late filing of the application;

(d)    the originating application, which was prepared and filed by Mr Sarkis on behalf of the applicant on 11 June 2013, also sought to blame Mr Ford for the late filing of the application and made no reference to Mr Sarkis’ responsibility for the delay;

(e)    the applicant was totally unfamiliar with Australian court practices and procedures and he did not fully appreciate the nature of the hearing on 6 September 2013 or what was expected of him – he relied on Mr Sarkis to defend and represent him;

(f)    as the applicant was not aware at the time of the hearing that Mr Sarkis had not filed the application in time or the circumstances surrounding that failure, because Mr Sarkis had not informed them of these matters, the applicant was not in a position to provide the Court with an accurate explanation concerning the real reasons for the delay;

(g)    Mr Sarkis took no steps to explain to the Federal Circuit Court why he had delayed in filing the application even though he was probably the only person who was in a position to so explain and he also knew that such an explanation was expected by the Federal Circuit Court if an extension was to be granted to the applicant;

(h)    as a matter of clear inference, the Federal Circuit Court was not told of the reasons for the delay in filing the application to that Court because Mr Sarkis had concealed from the applicant the fact of the delay and the reasons for it and Mr Sarkis had not disclosed those matters to the Federal Circuit Court himself by reason of his own self-interest in not disclosing his own apparently unauthorised activities on behalf of the applicant; and

(i)    the effect of all these matters was to deny the applicant a meaningful opportunity to persuade the Federal Circuit Court to extend time to enable the Tribunal’s decision to be reviewed for jurisdictional error. They also subverted the Federal Circuit Court’s proper consideration of the question whether time should be extended “in the interests of the administration of justice”, thereby further subverting the proper exercise of the Court’s jurisdiction under Pt 8 of the Act.

61    In our opinion, the following observations of the High Court in SZFDE at [51], although directed to the effect of the conduct by the rogue in that case on the appellants there and on the Tribunal, are equally apposite here in respect of the effect of Mr Sarkis’ conduct on both the applicant and the ability of the Court to discharge its important supervisory jurisdiction under Pt 8 of the Act:

No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. 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.

62    We consider that the fraud on both the applicant and the Federal Circuit Court in this case, which we are satisfied meets the Briginshaw v Briginshaw (1938) 60 CLR 336 standard, warrants an order in the nature of certiorari quashing the decision and orders of the Federal Circuit Court dated 6 September 2013, and an order in the nature of mandamus requiring the Court to redetermine according to law the applicant’s application for an extension of time under s 477(2) of the Act. The Minister did not submit that there was no utility in having the application for an extension of time redetermined. Nor did he submit that certiorari was not available if fraud was established in relation to the Federal Circuit Court.

Other grounds of review

63    In light of our findings on the fraud ground it is not necessary to consider the other grounds of review. On the matter being remitted to the Federal Circuit Court it will be for the judge to consider on the evidence before him or her whether or not an extension of time for filing an application to that Court should be granted and, if so, to consider on a final basis the merits of the application for judicial review on the evidence then before that Court.

Rulings on evidence

64    In the course of the hearing the Court overruled objections made by the Minister to parts of the applicant’s affidavit evidence, the ground of the objection being that the material was not new evidence. We said our reasons for so doing would form part of the reasons for judgment on the application. These are our reasons for overruling those objections.

65    The Minister submitted that fraud as regards a court could only be asserted relying upon evidence of new facts, or evidence of facts which existed at the time of the hearing which could not have been reasonably discovered. It followed, the submission went, that evidence which did not meet those criteria was irrelevant. The Minister submitted that certiorari to quash a decision of an inferior court could not be obtained on a lower or a different evidential basis than if one was moving to set aside a judgment: the same restraint that was described in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (Wentworth) should be applied in the present context where certiorari was sought in relation to a judgment of an inferior court.

66    This is a threshold objection. We leave aside for the moment whether at a detailed level the parts of the applicant’s affidavit evidence to which objection was taken on this ground answered the description of evidence of new facts, or evidence of facts which existed at the time of the hearing which could not have been reasonably discovered.

67    The authorities relied on by the Minister in addition to Wentworth were Monroe Schneider Associates Inc v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 (Monroe Schneider) and Di Carlo v Dubois [2007] QCA 316 (Di Carlo) at [33] citing Boughen v Abel [1987] 1 Qd R 138 (Boughen) at 140-141 adopting the approach of Herring CJ in McHarg v Woods Radio Pty Ltd [1948] VLR 496 (McHarg) at 498.

68    In Wentworth at 538 Kirby P said:

Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury’s Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. …

69    In Monroe Schneider at 240 the Full Court said:

The principles on which an earlier judgment may be impeached on the ground of fraud were described as follows by Lord Bridge in delivering the decision of the House of Lords in Owens Bank Ltd v Bracco [1992] 2 AC 443 at 483:

“[T]he common law rule [is] that the unsuccessful party who has been sued to judgment is not permitted to challenge that judgment on the ground that it was obtained by fraud unless he is able to prove that fraud by fresh evidence which was not available to him and could not have been discovered with reasonable diligence before the judgment was delivered … This is the rule to be applied in an action brought to set aside an English judgment on the ground that it was obtained by fraud. The rule rests on the principle that there must be finality of litigation which would be defeated if it were open to the unsuccessful party in one action to bring a second action to relitigate the issue determined against him simply on the ground that the opposing party had obtained judgment in the first action by perjured evidence. …”

…

These remarks were delivered obiter, with a view to contrasting the law as regards the impeachment of domestic judgments, with the lesser degree of finality which the common law accorded foreign judgments when actions were brought upon them in a domestic court, and with the changes to that common law position brought about by various statutory regimes for registration of foreign judgments (as to which see, for example, subpar 7(2)(a)(vi) of the Foreign Judgments Act 1991 (Cth)). It is not disputed on the present appeal that the law in Australia is to the same effect as that described by Lord Bridge.

70    In McHarg at 498, Herring CJ was considering proceedings in a new action in equity to set aside any judgment procured by the fraud of a party to a proceeding. Herring CJ said at 497-8:

Such an action is an independent proceeding, equitable in its origin and nature.

…

The very fact that what the plaintiff seeks is to set aside a judgment binding upon him, is sufficient to place the onus upon him of showing that he has reasonable prospects of success. And to satisfy this onus the plaintiff must produce evidence of facts discovered since the judgment complained of, which raise a reasonable probability of the action succeeding …

(Case references omitted).

71    Di Carlo concerned an action for damages for personal injury allegedly inflicted by the negligence of the respondents on 29 May 1993 while the applicant was undergoing a CT scan administered by the respondents. The Court of Appeal of the Supreme Court of Queensland applied Wentworth and Boughen at 140-141 adopting the approach of Herring CJ in McHarg.

72    However these cases concerned inter partes civil litigation. As the High Court said in SZFDE at [16]-[17]:

The vitiating effect of fraud is not universal throughout the law. The equitable doctrine protecting bona fide purchases for value and without notice is an important exception. Further, particular principles, or at least practices, have been developed with respect to collateral attacks in later litigation upon the outcome in earlier litigation where this was alleged to have been vitiated by fraud. It has been said in this Court that, except in very exceptional cases, fraud constituted by perjury by a witness or witnesses acting in concert is not a sufficient ground for setting aside a judgment. The precept engaged here has been identified as that favouring the finality of litigation.

The authorities in this field concern adjudication of civil actions and suits. A rather different trend has appeared in public law, particularly respecting the administration by superior courts of certiorari to supervise the exercise of jurisdiction by inferior courts and tribunals.

(Emphasis added)

73    Craig at 175-176 and SZFDE at [17] and [38] are clear authority against the submission put on behalf of the Minister.

74    In Craig the High Court said at 175-176:

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.

(Footnotes omitted; emphasis added).

75    One of the authorities cited in the relevant footnote in Craig at 175-176, by way of example, was R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 353 where, at 352, Denning LJ addressed the question whether affidavit evidence was admissible on an application for certiorari. He said:

When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.

76    In SZFDE at [38] the High Court said:

As noted in the passage in Craig which has been set out earlier in these reasons, in a case of alleged fraud the court exercising judicial review may, subject to any applicable procedural and evidentiary rules, take account of any relevant material placed before it.

77    Also, in our opinion, R v Wolverhampton Crown Court; Ex parte Crofts [1983] 1 WLR 204, referred to in SZFDE at [18], is against the Minister’s submission. The application before the Queen’s Bench Division was for judicial review of an order of the Wolverhampton Crown Court allowing an appeal by a Mr Whitehouse against two convictions. It seems to us to be clear from the report at 205 that the Queen’s Bench Division acted on material which was not before the Wolverhampton Crown Court in finding that Mr Whitehouse gave false evidence and that a Miss Noon, who had been called by him in the proceedings before the Crown Court, also gave false evidence. As the report notes, both the defendant before the lower court and Miss Noon subsequently admitted the falsity of their evidence.

78    On the basis of the authority to which we have referred in the immediately preceding paragraphs, we reject the Minister’s submission that certiorari to quash a decision of an inferior court for fraud could not be obtained on a lower or a different evidential basis than if one was moving to set aside a judgment.

79    Turning in more detail to the evidence objected to on this ground, paragraphs 10-14, 16-18, 21-24, 26-28 and 29, 30, 31, 34-46 of the applicant’s affidavit affirmed on 19 December 2013 were objected to on the ground that the material was not new evidence. On the same basis paragraphs 6, 9-10 and the first sentence of paragraph 12 of the applicant's affidavit affirmed 17 February 2014 were objected to.

80    We admitted these paragraphs as relevant to the application to set aside the judgment of the Federal Circuit Court for fraud. Even though, in one sense, some of this material was “known” to the applicant at the time of the hearing before the Federal Circuit Court on 6 September 2013, his case is that the significance of this material was not known to him by reason of the conduct of Mr Sarkis. This material is not suggested to be irrelevant. It is probative of the alleged fraud.

81    Paragraphs 4-16 of the affidavit of Ms Burrows affirmed 17 February 2014 were objected to on the basis that the evidence was not new and that it was irrelevant. We rejected these paragraphs as irrelevant, apart from the documents referred to in paragraphs 6, 7, 8 (first sentence) and 9 on the basis and to the extent that they were included elsewhere. Therefore no further consideration is required of these paragraphs or the objection on the basis that the material was not new evidence.

82    For these reasons we admitted the paragraphs of these affidavits which were objected to on the ground that the material was not new evidence within the principles established for cases concerning setting aside a judgment obtained in inter partes civil litigation.

Conclusion

83    For these reasons, we consider that this is an appropriate case to grant an order in the nature of certiorari quashing both the primary judge’s decision and orders dated 6 September 2013 and an order in the nature of mandamus requiring the Federal Circuit Court to redetermine the applicant’s application for an extension of time. We would also make orders restraining the Minister from removing the applicant until his application for an extension of time has been heard and determined by the Federal Circuit Court or until further order of that Court. The Minister must pay the applicant’s costs of and incidental to his amended originating application (as well as the costs of the appeal in accordance with the previous orders).

Associate:

Dated:    4 April 2014