FEDERAL COURT OF AUSTRALIA

SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420

MIGRATION – judicial review – procedural fairness – where appellant failed to attend hearing before Refugee Review Tribunal – where visa refused by Tribunal – where appellant advised by migration agent not to attend hearing – where appellant alleges fraud against agent – effect of ss 422B, 425, 426 of Migration Act 1958 (Cth) on availability of judicial review.

ADMINISTRATIVE LAW – judicial review – jurisdictional error – where alleged fraud on appellant by third party induced non-attendance at hearing – where decision maker unaware of alleged fraud – whether statutory process corrupted by fraud – whether jurisdictional error arises – procedural fairness – whether breach of procedural fairness can arise without fault on the part of decision maker – whether breach of procedural fairness can arise where fault is that of party’s own agent.

Held – insufficient evidence to establish fraud – fraud by party’s own agent where decision maker unaware of fraud does not lead to jurisdictional error – fraud or negligent or incorrect advice by party’s own agent can not lead to a breach of procedural fairness – no jurisdictional error – appeal dismissed.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 422B, s 425, s 425A, s 426A, s 475A, s 474(2), s 477

S58 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492 referred to

Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 referred to

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

Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 referred to

R v Leyland Justices; Ex parte Hawthorn [1979] QB 283 referred to

Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 referred to

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

Aronson, Dyer and Groves, Judicial Review of Administration Action (3^rd ed, 2004) referred to

SZGQL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, REFUGEE REVIEW TRIBUNAL AND YU TAN WAYNE HAN

NSD 759 OF 2006

BESANKO J

3 november 2006

ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

1 This is an appeal from an order made by a Federal Magistrate. The Magistrate made an order that the application before him was not competent, ‘as the Court has no jurisdiction to hear it’. The Minister for Immigration and Multicultural Affairs (‘the Minister’) had filed a notice of objection to competency in the proceedings and had submitted that the application was not competent.

2 The appellant arrived in Australia on 23 February 2003. He is a national of the People’s Republic of China. On 20 March 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 22 May 2003 a delegate of the Minister refused the appellant’s application. On 11 June 2003 the appellant applied to the Refugee Review Tribunal for a review of that decision. In due course, I will set out the details of the course of the appellant’s application for a protection visa and his application for review but, at this point, it is sufficient to note that on 6 January 2004 the Tribunal handed down its decision affirming the decision not to grant a protection visa.

3 On 4 July 2005 the appellant made an application to the Federal Magistrates Court for orders under s 39B of the Judiciary Act 1903 (Cth) in relation to the Tribunal’s decision (see also s 475A of the Migration Act 1958 (Cth) (‘the Act’)).

4 At the time the application to the Federal Magistrates Court was made, s 477 of the Act relevantly provided as follows:

‘(1A) An application to the Federal Magistrates Court under section 483A for:

(a) a writ of mandamus, prohibition or certiorari; or

(b) an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.

(2) The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection.’

5 The appellant’s application was not made within 28 days of the notification of the decision and I do not think that it was disputed by the appellant that if the decision of the Tribunal was a privative clause decision no order could be made which had the effect of allowing the application to be made outside the 28-day period. The Magistrate held that the decision was a privative clause decision and he made an order that the application was not competent. The appellant attacked the Magistrate’s decision on the ground that he erred in concluding that the Tribunal’s decision was a privative clause decision. If that proposition is correct, the time limit in s 477 is not fatal to the application although the delay in issuing it would still be relevant to the discretion to grant or withhold relief.

The appellant’s contentions

6 The appellant’s principal submission before the Magistrate was that he relied on the advice of his agent not to attend a hearing of the Tribunal and that he would have attended a hearing if he had known it was necessary or would have been useful. He submitted that the advice or conduct of his agent was fraudulent and that that was sufficient to take the decision of the Tribunal outside the statutory definition of a privative clause decision in s 474(2) of the Act. Alternatively, if fraud was not established, the appellant submitted that nevertheless the advice or conduct of his agent was ‘wrongful’ and that that was sufficient to take the decision of the Tribunal outside the statutory definition of a privative clause decision. It is not clear to me precisely what the appellant means by the word ‘wrongful’. Having heard the submissions, I think that what was being put was that the agent’s advice was erroneous and that it had led to a failure to accord procedural fairness to the appellant.

7 The appellant submitted that s 422B of the Act did not stand in the way of the acceptance of either of his submissions.

8 On appeal, the appellant also pointed to what he said was other fraudulent conduct by his agent consisting of the preparation and submission to the Department of a false statement of the appellant and the provision of fraudulent advice to a third party. The extent to which those matters were put to the Magistrate is unclear.

9 Before considering whether the Magistrate erred in not accepting the appellant’s submissions, it is necessary to say something more about the facts and to examine the Magistrate’s reasons.

The facts

10 The appellant claims to be a Falun Gong practitioner who fears persecution if he returns to China. Before he lodged his application for a protection visa with the Department, the appellant contacted Mr Yu Tan (Wayne) Han who was said to be a migration agent. He paid Mr Han a sum of money to assist him with his application. The appellant lodged a three-page typed statement signed by him with his application for a protection visa. The statement was in the English language and it detailed his experiences in China, his adherence to Falun Gong and his claim for refugee status. It seems that (at least in part) the statement was prepared by Mr Han on the basis of conversations he had with the appellant. I will refer to this as ‘the statement’.

11 In his application for review the appellant nominated Mr Han of the Aozhong Immigration Affairs Centre (PO Box K922 Haymarket, New South Wales) as an authorised recipient of correspondence from the Tribunal.

12 On 6 November 2003 the Tribunal wrote to the appellant care of the Aozhong Immigration Affairs Centre advising him that it had considered the material before it in relation to the application but was unable to make a decision in his favour on that information alone. The appellant was invited to a hearing of the Tribunal on 1 December 2003 and he was told that if he did not attend the hearing and the Tribunal did not postpone the hearing it could make a decision on his case without further notice.

13 On 28 November 2003 the appellant completed a form indicating that he did not wish to come to a hearing and that form was sent to the Tribunal and received by it at 3.28 pm on 1 December 2003.

14 On 6 January 2004 the Tribunal handed down its decision affirming the decision not to grant the appellant a protection visa. In the course of its reasons, the Tribunal said:

‘Because the applicant did not attend a hearing, I was unable to ascertain the level of his involvement and commitment to Falun Gong. I was unable to determine whether the applicant practises Falun Gong in Australia or whether he will do so if returned to the PRC. His claims could not be tested by the Tribunal nor his credibility established. Accordingly, the Tribunal is not satisfied that the applicant is a Falun Gong practitioner.’

15 On 23 January 2004 a typed letter signed by the appellant was sent to the Minister asking her for permission for the appellant to remain in Australia permanently. This was followed in March 2004 with an application by the appellant for a bridging visa.

16 In his application to the Federal Magistrates Court, the appellant asserted that he was an ‘innocent victim’ of the agent, Mr Han, and he provided a letter with some additional details. The Tribunal and Mr Han were joined as respondents to the application before the Magistrate.

17 The appellant filed an affidavit sworn on 26 September 2005 and he gave oral evidence before the Magistrate. Mr Han filed an affidavit sworn on 3 November 2005, but ultimately he elected not to give evidence before the Magistrate. There was also an affidavit and evidence from a third party who had been advised by Mr Han in relation to his (the third party’s) application for a protection visa.

18 The appellant gave evidence to the following effect (relevantly):

1. Some parts of the statement have been read to him. The statement is not correct and he did not give ‘this’ information to Mr Han.

2. Some time in 2003 or 2004 Mr Han told him that it was possible for him to attend a hearing in the Tribunal but, because he did not speak English, there was no need to attend. Mr Han said that he would appear on his behalf and the appellant agreed.

3. Mr Han never told him that the Tribunal had refused his application and until June 2005 he thought his application was ‘still being processed’. He admitted that it was his signature on the letter to the Minister dated 24 January 2004, but disavowed any knowledge of an application to the Minister for her to intervene in his case.

The Magistrate’s reasons

19 The Magistrate found that Mr Han advised the appellant not to attend the Tribunal and so he did not go. The Magistrate found that the appellant would have gone to the hearing if he had been told that his attendance was necessary or useful. The Magistrate found that the Tribunal was in no way aware that the appellant had been misled by Mr Han and he said that there was no evidence that ‘the Tribunal was aware of any suspicious circumstances about the migration agent’. The Magistrate said that the appellant had followed the advice of his migration agent and could not now complain that the Tribunal fell into error as a result. He referred to the decision of the Full Court of this Court in S58 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. The Magistrate said that there was no evidence of fraud in the case and he said that in the absence of ‘some exceptional circumstance’ like fraud, there is no jurisdictional error where there is no defect in the Tribunal’s decision-making process. The Magistrate said that the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 (‘Al-Mehdawi’) was persuasive and should be followed.

20 The Magistrate referred to s 422B(1) of the Act. He noted the decision of Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170, but he said that he was not confident that the approach taken by Gray J ‘is the preferred view any more’ and referred to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908.

21 Other than his general finding that there was no evidence of fraud in the case, the Magistrate made no express finding concerning the preparation of the statement. As to the evidence of the third party, the Magistrate appears to have accepted that the third party was advised by Mr Han not to attend the Tribunal (although apparently that advice was given for a different reason to that given to the appellant) and that as a result he did not go. He, like the appellant, would have gone if he had been told that his attendance was necessary or useful. The Magistrate said that that evidence was not sufficient to establish that it was Mr Han’s practice to advise all of his clients in this way.

Issues on the appeal

22 The thrust of the appellant’s case here and below related to the appellant’s non-attendance at a hearing of the Tribunal. On appeal, the appellant also referred to two other matters which he submitted constituted fraud on the part of Mr Han. It is convenient to deal with those two matters first.

23 As I have said, the appellant’s case was that at least some parts of the statement were not correct. He deposed to the fact that some parts of the statement had been read to him, the statement was not correct and he did not give ‘this’ information to Mr Han. He admitted that it was his signature on the statement and that on one or two occasions after his first meeting with Mr Han he had been asked to come to Mr Han’s office and sign some papers and that it was possible that he was asked to sign his name. The appellant said he could not read the document because he could not read English. In evidence in chief the appellant was taken to one part of the statement and he said that the events there described did not happen to him, nor did he know the persons referred to in that part of the statement. Later in cross-examination of the appellant it became clear that Mr Han spoke Mandarin very well and that the appellant had told Mr Han what his claims were.

24 The Magistrate did not make a specific finding about whether the statement accorded with the appellant’s instructions. As I have said, the Magistrate said that there was no evidence of fraud in the case. I think the Magistrate must be taken to have found that Mr Han did not knowingly concoct the statement. On the evidence, it is unclear whether part of the statement was erroneous and, if so, whether this resulted from Mr Han’s negligence, but it matters not in my view because even if these matters are made out they cannot give rise to a jurisdictional error on the part of the Tribunal.

25 As far as the allegation that Mr Han was fraudulent in his dealings with the third party is concerned, it is not entirely clear how the appellant puts his argument. If he is submitting that Mr Han was fraudulent in the advice he gave to the third party and that that in some way means that the Tribunal’s decision in relation to the appellant was infected with jurisdictional error, then clearly that argument cannot succeed. If, on the other hand, he is submitting that Mr Han gave fraudulent advice to the third party and that that establishes he was fraudulent with all his clients including the appellant, then that argument must be rejected because there is no reason to disturb the Magistrate’s finding that Mr Han’s advice to the third party was not sufficient to establish that it was Mr Han’s practice to advise all his clients in that way.

26 I return then to the main submission on the appeal which relates to the agent’s advice and the appellant’s non-attendance at a hearing of the Tribunal. The appellant’s two submissions, which are put in the alternative, are that the fraudulent conduct of the agent and the appellant’s non-attendance meant that the Tribunal’s decision was infected with jurisdictional error or, assuming fraud was not present, there was a breach of the rules of procedural fairness which also gave rise to a jurisdictional error.

27 I start with the submission which takes as its basis the allegation that the agent’s conduct was fraudulent. In examining the authorities it seems to me that it is not always clear what is encompassed by the word ‘fraud’ in this context. It would include the making a false statement knowing it was false or engaging in conduct which deceives another, knowing that it would, or was likely to, have that effect. It could include other circumstances and some of the authorities suggest that circumstances may be sufficiently analogous to fraud to lead to the granting of relief. I refer by way of example to Lord Bridges’ explanation in Al-Mehdawi (at 895-896) of the basis of the Court of Appeal’s decision in R v Leyland Justices; Ex parte Hawthorn [1979] QB 283.

28 In this case there would be fraud if Mr Han gave advice to the appellant which he knew to be incorrect, or if he said he would do something and at the time did not intend to do it. There is no fraud if the advice was merely negligent or erroneous and if at the time Mr Han intended to do what he said he would do. On the evidence in this case there was no obvious reason why Mr Han would act fraudulently in the way in which I have explained it. The Magistrate found that there was no evidence of fraud and I see no reason to interfere with that conclusion. Although Mr Han did not give evidence, there was insufficient evidence upon which to draw an inference of fraud. The appellant’s submission based on fraud falls at the first hurdle.

29 Even if I am wrong and the Magistrate erred in not making a finding of fraud, such a finding would not lead to the setting aside of the Tribunal’s decision. The effect of fraud by a migration agent on a decision of the Tribunal was considered by the Full Court of this Court in the recent decision of Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 (‘SZFDE’). Applicants for a protection visa engaged a man who said he was a solicitor with a lot of experience in migration matters. Unbeknown to the applicants he had been struck off as a solicitor and deregistered as a migration agent. He told the applicants that they should not accept an invitation to appear before the Tribunal at an oral hearing because their application would be refused. He told them that he was going to write to the Minister on their behalf and he was concerned that if they appeared before the Tribunal they might say something inconsistent with what he said in the letter. He told them not to worry, that he was doing what was best for them. The Magistrate found that the agent had acted dishonestly and fraudulently. In other words, his advice was not only bad, but also fraudulent. A majority of the Court (Allsop and Graham JJ) said that the fraud in that case did not provide a basis for setting aside the decision of the Tribunal. The Tribunal was not aware of the fraud and had complied with the Act in terms of extending an invitation to the applicants (ss 425, 425A).

30 Allsop J said that the decision of the Tribunal was not induced or affected by fraud (at [136]). Allsop J made the point that in the circumstances of the case before him the fraud was linked to the complaint that there had been a failure of procedural fairness. The complaint of a lack of procedural fairness could not succeed in light of ss 422B, 425 and 426A of the Act. Allsop J also said that it was not a case where it could be said that the statutory process was corrupted by fraud (at [139]). Graham J also dismissed the challenge based on fraud saying that even if there was fraud it was of no relevance (at [191] and [237]).

31 French J dissented. His Honour held that the fraud of the agent gave rise to a jurisdictional error on the part of the Tribunal, saying that the Tribunal made its decision (at [131]):

‘… blamelessly but pursuant to a process which, unknown to it, was compromised by third party fraud.’

32 On the basis of the majority decision in SZFDE the appellant’s submission that the fraud of Mr Han (assuming, contrary to my earlier conclusion, that he was fraudulent) vitiates the decision must be rejected.

33 The appellant’s alternative submission was that the agent’s conduct led to a breach of the rules of procedural fairness and that that gave rise to a jurisdictional error. This submission raises two questions. First, absent the particular statutory context, is there what might perhaps be called a general rule that there is a breach of the rules of procedural fairness if a party fails to attend a hearing due to the erroneous advice of his agent? Secondly, if there is such a rule, does the particular statutory context negate the rule or the granting of relief. I realise that dividing the issue into two questions is somewhat artificial, but I think it does assist in the overall analysis.

34 There are many cases in which the courts have considered whether, in the absence of fault on the part of the decision-maker, there can be a breach of the rules of procedural fairness. A number are discussed in the reasons for judgment of French J in SZFDE (see also Aronson, Dyer and Groves, Judicial Review of Administration Action (3^rd ed, 2004) pages 460-463). They can perhaps be placed in various categories depending on one or more of: the powers the Court was exercising; the status of the person at fault (ie, party’s agent, other party to the proceeding or a third party); the nature of the conduct of the party at fault (ie, fraudulent or negligent); and the effect of the procedural departure. It seems fairly clear on the authorities that there can be a breach of the rules of procedural fairness in the absence of fault on the part of the decision-maker: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 per Gleeson CJ at 448 [22]. Equally, it seems clear on the authorities that there is no breach of the rules of procedural fairness if the fault leading to the procedural departure was that of the agent of the applicant for relief. That was the view of the House of Lords in Al-Mehdawi (supra) and of French J (at [101]-[103]) and Allsop J (at [138]) in SZFDE. The appellant’s alternative submission fails on this ground.

35 The submission would fail in any event because even if there was such a general rule it could not operate in the context of the provisions of the Act. Section 422B provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 425 requires that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That invitation was given in this case. Section 426A provides that where an applicant fails to appear in response to an invitation, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. That is how the Tribunal decided to proceed in this case and it was entitled to do so. The conclusion that the statutory provisions allow no room for a claim that there was a breach of the rules of procedural fairness based on the erroneous advice of an applicant’s agent was a conclusion reached by a majority of the Court in SZFDE (per Allsop J at [138] per Graham J at [237]-[239]).

36 The decision of the Tribunal did not involve jurisdictional error and the Magistrate’s decision that the application was not competent was correct.

Conclusion

37 The appeal must be dismissed with costs.

Associate:

Dated: 3 November 2006