FEDERAL COURT OF AUSTRALIA

MZXQH v Minister for Immigration and Citizenship [2008] FCA 1402

MZXQH, MZXQI and MZXQJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 508 of 2008

RYAN J

15 SEPTEMBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.         The appellants pay the first respondent’s costs of the appeal, to be taxed in default of agreement.

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 orders made by Burchardt FM on 16 June 2008, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  By a decision handed down on 5 April 2002, the Tribunal had affirmed a refusal on 12 July 2000 by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to grant a protection visa to the appellants.

2                     The appellants are citizens of Sri Lanka.  The first appellant arrived in Australia on 28 April 2000, while the second and third appellants (his spouse and child) arrived in Australia on 13 April 2000. 

3                     On 12 May 2000 the appellants lodged an application for a protection visa.  The husband and wife both claimed to have a well-founded fear of persecution for a Convention reason, with their child relying on membership of their family unit.

4                     The husband claimed to fear persecution by the Liberation Tigers of Tamil Eelam (“LTTE”) because his father was a strong supporter of the United National Party (“UNP”) and was perceived as being wealthy.  The husband belonged to the Bohra sect of Islam.  The husband claimed that his father had been harassed and threatened by the LTTE, and that he and his father had both been assaulted by the LTTE.  It was further claimed that the husband’s brother had been abducted for ransom by the LTTE and was still missing, and that the family store had been burnt down by the LTTE.

5                     The wife claimed that the LTTE had threatened her, demanded money and demanded that a Tamil family be allowed to live in her house.  She believed that this had occurred because the LTTE considered her to be of Tamil ethnicity as she had a Tamil mother.  The wife claimed to be officially regarded as having the Sinhalese ethnicity of her father.

6                     Both the husband and wife claimed that they had not complained to police in Sri Lanka because they feared reprisals.

7                     On 12 July 2000 the application was refused, and on 8 August 2000 the appellants lodged an application for review of the decision by the Tribunal.

8                     By a decision dated 19 March 2002 handed down on 5 April 2002, the Tribunal affirmed the Minister’s decision.  The Tribunal was not satisfied that the appellants’ claims of persecution were credible.  This was primarily due to their failure to seek protection from the State authorities in Sri Lanka, and the husband’s numerous trips to Sri Lanka from Qatar where he had moved for work.  The Tribunal was therefore not satisfied that the appellants faced a real chance of persecution if they were to return to Sri Lanka or that they had a well-founded fear of persecution.

9                     On 9 May 2002 appellants sought a review of the Tribunal’s decision by the High Court in its original jurisdiction.  On 30 July 2002 the application was remitted to this Court.  On 2 December 2002, Weinberg J remitted the matter to the Federal Magistrates Court. 

10                  On 12 August 2003 the application was dismissed by Phipps FM for failure to establish any jurisdictional error: M60 v Minister for Immigration (No 1) [2003] FMCA 428.  The appellants failed to attend the hearing.  However, the learned Federal Magistrate held, at [12], that;

‘… even if the applicants appeared and even if their written contentions of fact and law were aided by oral submissions presented by them or on their behalf, their application would not succeed.’

11                  On 1 September 2003, the appellants filed an application in the Federal Magistrates Court of Australia seeking to set aside the orders of Phipps FM of 12 August 2003 (“the reinstatement application”).  On 17 September 2003, the appellants were represented on the hearing of the reinstatement application but Phipps FM refused to set aside his earlier decision;  M60 v Minister for Immigration an Multicultural and Indigenous Affairs (No 2) [2003] FMCA 429.  In refusing the application, his Honour said that he was satisfied that the appellants had given an explanation for their failure to appear at the hearing on12 April 2003.  However, he was not satisfied that the application raised an arguable case, despite the appellants raising a ground of review not previously raised.  The appellants appealed to this Court from the refusal of the reinstatement application but, on 8 December 2004, Weinberg J ordered that the appeal be dismissed;  Applicants M60/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1612.

12                  On 8 September 2005, an application for special leave to appeal to the High Court was dismissed by Hayne and Callinan JJ;  Applicants M60/2002 v Minister for Immigration and Multicultural Affairs [2005] HCA Trans 735.

13                  On 8 May 2007 the appellants filed an application before Burchardt FM, which is the subject of the present appeal.  The appellants contended that the Tribunal had misinterpreted the definition of persecution in s 91R(1)(a) of the Migration Act 1958 (Cth), and that the Tribunal had not taken proper account of the evidence. 

14                  On 15 August 2007 the Minister filed a notice of motion seeking summary dismissal pursuant to rule 13.10(c) of the Federal Magistrates Court Rules (Cth) 2001.  That notice of motion contended that the appellant’s latest application was an abuse of process.

15                  Before Burchardt FM, the appellants submitted that their failure to appear before Phipps FM had been the result of fraud by their then migration agent so that the dismissal of the application involved a denial of natural justice that effectively rendered nugatory the first decision of Phipps FM and all subsequent decisions on their applications.  Accordingly, it was said, the jurisdiction of the relevant courts had remained constructively unexercised.  In making this submission the appellants relied on the dissenting judgment of French J in SZFDE v Minister for Immigration and Citizenship (2006) 154 FCR 365 (“SZFDE”), which was upheld by the High Court. 

16                  The appellants also sought adjournment of the proceedings while charges of professional misconduct against their former migration agent, who was also a solicitor, remained pending in the Victorian Civil and Administrative Tribunal (“VCAT”).

17                  Burchardt FM observed in his reasons that in his second decision, Phipps FM had found that the migration agent had misled the appellants and was satisfied that the appellants had “given an explanation for their failure to appear.”  His Honour noted that the appellants had been represented by an experienced migration law practitioner who then presented the appellants’ substantive claims, before Phipps FM “dismissed the application on the merits, or more accurately on the lack of merits.”

18                  Burchardt FM regarded SZFDE as authority only for the proposition that fraud vitiates only those decisions on which it is shown to have had an operative effect.  His Honour was not satisfied that fraud had effectively operated on the second decision of Phipps FM, noting that;

‘… fraud meant that the Applicants did not attend the original hearing before this Court. When they did attend, his Honour was quite prepared to and did hear their case, so that the failure to attend the first time was of no moment.’

19                  His Honour found that there was no suggestion of anything additional that was material to the appellants’ original non-attendance that could possibly have emerged from the VCAT proceedings.  He therefore concluded that there was no reason to adjourn the matter to await a decision from VCAT and dismissed the application.

20                  On 3 July 2008, the appellants filed a notice of appeal in this Court, asserting that Burchardt FM had erred in refusing an adjournment, had mistaken the appellants’ case in reliance on SZFDE,and had misapplied that authority.

21                  On 15 July 2008 the respondents filed a Notice of Objection to Competency contending  primarily that the orders of Burchardt FM were interlocutory orders from which leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).

22                  At the hearing of the appeal before me it was submitted on behalf of the appellants that the test for whether a judgment is interlocutory or final is whether the judgment or order “finally dispose[s] of the rights of the parties”;  see Hall v Nominal Defendant (1966) 117 CLR 423, per Taylor J, citing Bozson v Altrincham Urban District Council (1903) 1 KB 547, at pp 548–549.  The appellants contended that the judgment of Burchardt FM “read as a whole effectively disposes off [sic] the rights of the parties”, referring in particular to the finding by his Honour at [15], that;

‘To adjourn this matter off to await the outcome of the VCAT proceedings would mean no more in the ultimate than we would at some future date be back here, faced with the same set of reasons for judgment made by Federal Magistrate Phipps on the materials before him.’

23                  In relation to the issue of fraud by the migration agent, the appellants reiterated that there was no retainer between them and the practitioner who claimed to have represented them, and that they had been “kept in the dark during the entire conduct of the proceedings”.  By a decision dated 20 February 2006 the Migration Agents Registration Authority had disqualified the practitioner from being registered as a migration agent for a period of five years.  The appellants are presently awaiting a decision by VCAT.

24                  Invoking SZFDE, Mr Fernandez, who appeared as Counsel for the appellants, contended that by reason of the fraud of the migration agent, the decision of Phipps FM was not properly to be regarded as a decision because “the jurisdiction remains constructively unexercised”.  He further contended that Burchardt FM had erred in concluding that the decision of Phipps FM had not been affected by fraud because there was no evidence before the Federal Magistrates Court to support that conclusion.  A related error was said to have been constituted by the refusal of an adjournment until after the VCAT hearing which would have assisted the appellants to advance their case based on the fraud of the former migration agent.  Accordingly, it was submitted, the decision of Burchardt FM was infected by an appealable error of law.

25                  Counsel for the Minister submitted that the decision by Burchardt FM to dismiss the application filed on 8 May 2008 had been made in response to the Minister’s application for summary dismissal and that an order on such an application is interlocutory;  see Rana v The University of South Australia (2004) 136 FCR 344, at [10]-[15].  Under s 24(1A) of the Federal Court Act, the appellants must apply for leave to appeal within 21 days against an interlocutory decision of the Federal Magistrates Court.  As the appellants have not filed an application for leave to appeal within the required time, there was no valid invocation of the jurisdiction of this Court.

26                  However, Counsel for the Minister acknowledged that this Court has a discretion to extend time for the appellants to apply for leave.  In determining whether leave should be granted, it was submitted, the principles to be applied are;

(a)               whether the decision below is attended with sufficient doubt to warrant its being reconsidered by a Full Court; and

(b)               whether a substantial injustice would result if leave were refused supposing the decision to have been wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

27                  It was contended on behalf of the Minister, that the application for leave to appeal should be refused on the basis that the decision of Burchardt FM is not attended by sufficient doubt to warrant its reconsideration by this Court, and, that there would be no prospect of success on the appeal if leave were granted.

28                  Ms Loh of Counsel for the Minister first argued that it had been open to Burchardt FM to refuse to exercise his discretion to adjourn the hearing until after a decision in the VCAT proceeding, and that the appellants had not demonstrated how that discretion had miscarried.  Ms Loh further submitted that Burchardt FM had concluded that the decision of Phipps FM was not affected by fraud because any fraud that had been perpetrated on the Court by the migration agent was effectively overtaken by the consideration given by Phipps FM to the appellant’s grounds of the application at the hearing on 17 September 2003, and by the subsequent unsuccessful appeal and application for special leave from the dismissal of that appeal.  

29                  It was also submitted that there was no error in Burchardt FM’s finding that the same claim had, in substance, been raised before Phipps FM on the reinstatement application, although the evidence had then been used in support of the allegation that the migration agent’s activities were not fraudulent but misleading explained the appellants’ non-appearance at the hearing on 12 August 2003.  Even were the appellants able to establish an error of law, given the dismissal of their appeal by this Court and the refusal by the High Court of special leave, the appellants should be shut out from further judicial review of the Tribunal decision by application of the principles of res judicata and Anshun estoppel.  Accordingly, the respondent submitted that the appeal should be dismissed with costs.

30                  In oral submissions on the hearing of the appeal, Mr Fernandez sought first that the hearing of the appeal should be adjourned to await the outcome of the VCAT proceedings in which a hearing had now been set down for 6 October 2008.  He also reiterated the contention that the fraud of the migration agent had manifestly deprived the appellants of an opportunity to appear and present their case before Phipps FM on 12 August 2003, so that every judicial order made thereafter was a nullity.  That was said to flow from the effect of the fraud which meant that the jurisdiction to review the foundational decision of the Tribunal remained constructively unexercised.

31                  In my view, that argument overstates the effect of the reasoning of French J in SZFDE as endorsed on appeal by the High Court.  French J concluded, at [129]-[130] of his reasons;

‘129     There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made.  But where a person’s participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case. In this case, on the findings made by the learned Magistrate which are not challenged as to the facts, SZFDE and her family were dissuaded from appearing before the Tribunal by the fraudulent advice of the migration agent.  The agent held himself out to be a practising solicitor and registered migration agent.  He was neither.  He gave fraudulent advice that the Tribunal was ‘not accepting any visa applications at all at the moment’.  He expressed a false concern that if SZFDE and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister.  The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice SZFDE’s prospects of a successful outcome on the basis of a submission to the Minister. 

130      SZFDE’s negative response to the hearing invitation was procured by the dishonest conduct of her purported representative.  To that extent her consent to the disposition of her application for review without a hearing was of no effect.  She was denied, by fraud, the opportunity to appear at and be heard by the Tribunal on a matter of vital importance to her future and that of her family.  The decision-making process, that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Part 7, was corrupted.  The importance of the appearance before the Tribunal to the outcome of the review was highlighted by the Tribunal’s reference, in its reasons, to matters which it did not have an opportunity to explore with SZFDE because of her non-appearance.  On this basis, in my opinion, the decision of the Tribunal was vitiated.  It was not a decision made under the Act and therefore not a privative decision protected by s 474.’

32                  In endorsing that conclusion, the Full High Court in a joint judgment observed, at [47]-[49] of its reasons;

‘47       French J correctly identified the ultimate issue as the effect upon the Tribunal's decision‑making process, for which the Parliament provided in Pt 7 of the Act [(2006) 154 FCR 365 at 399], of the fraud of Mr Hussain.

48        As indicated earlier in these reasons, the provisions of Pt 7 obliging the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)) and empowering the Tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B‑429A) for the conduct of reviews.  By s 422B that Division provided that it is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule.

49        The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.  That this is so is manifest by the reasons given by the Tribunal, which included the statement:

            “The [first] applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims.  Nor has she given the Tribunal an opportunity to explore aspects of her claims with her.  A number of relevant questions are therefore left unanswered.

The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”’

33                  Those passages make clear that, in SZFDE, the fraud of Mr Hussain impinged directly on the workings of the Tribunal.  Because the decision of the Tribunal was fatally vitiated, no amount of subsequent judicial review could restore to SZFDE a proper consideration by the statutorily constituted administrative decision-maker of the merits of her case.  By contrast, the fraud of the solicitor-migration agent in the present case, accepting for the purposes of the argument that it was the grossest and most unprofessional imaginable, operated, not on the decision of the Tribunal, but on the opportunity on 12 August 2003 to obtain judicial review of that decision.  That opportunity, it is true, was lost when the appellants failed to appear on that date but a full and fresh opportunity of judicial review was afforded them on 17 September 2003 when Phipps FM heard the reinstatement application.

34                  In its decision of 19 March 2002 the Tribunal recorded, at p 2;

‘The Applicant has been advised by a registered migration agent who accompanied him when he attended a hearing with the Tribunal on 15 March 2002. He was also accompanied by his spouse, who gave sworn oral testimony.’

35                  The Tribunal further recorded, at p 3 of its decision, under the heading “THE APPLICANTS CASE”;

‘The Applicant and his spouse made written and oral submissions.  Further submissions were made on their behalf by their adviser and they supported their claims with some material from other sources.’

36                  There followed an extensive review of the first appellant’s claims and the evidence in support of them.  There was no suggestion in the Tribunal’s reasons, or since, that the appellants had been prevented by any fraud or misconduct of the migration agent who then acted for them from adducing to the Tribunal any evidence or making to it any submission which might have been supportive of their claims to refugee status.

37                  On the hearing of the reinstatement application, the appellants were represented by Mr J Gibson of Counsel who has very extensive experience in immigration cases.  It appears that Mr Gibson was instructed by the firm of solicitors of which the allegedly fraudulent solicitor-migration agent was a member or employee.  However, Phipps FM clearly accepted, when giving judgment on the reinstatement application, that the conduct of the solicitor-migration agent had been responsible for the appellants’ failure to appear on 12 August 2003.  His Honour, on 17 September 2003`, at [6]-[18] of his reasons, observed;

‘6         I am satisfied that the Applicants have given an explanation for their failure to appear.  Their affidavit is not contested and it does appear that they have been misled by the migration agent.  They intended to be represented.  They had taken steps to be represented and they were not.  So I am satisfied that they have given an explanation. 

7          That leads to the second matter for consideration and that is whether they have an arguable case.  Mr Gibson has appeared for the Applicants and he relies upon an amended application which sets out two new grounds.  At the time of the hearing on 12 August, there were contentions and additional contentions which had been filed on behalf of the Applicants and settled by counsel.  In my judgment on that day I dealt with those grounds.  I thought it appropriate in the circumstances that I should deal with the merits of the application.  That does not affect the application which is being made today but none of those grounds are now relied upon.

8          What is relied upon is a ground that the tribunal failed to deal with an essential element or an essential integer of the Applicants’ case.  The Applicants’ case before the tribunal was this:  they are both from Sri Lanka.  The male Applicant’s father was a strong supporter of the United National Party, the UNP.  His brother returned to help in his father's business in Batticaloa in 1987 and what the Applicant said was that his father was constantly harassed and threatened by members of the Liberation Tigers of Tamil Eelam (Tamil Tigers or the LTTE).  He said that his father complained to police but they did not do anything and in 1994 the LTTE assaulted his father, abducted the Applicant’s brother and demanded a ransom.  His father made payments from time to time.  He told the Applicant that the LTTE had asked for his address in Colombo and advised him to leave the country.  Then, in 1994 the Applicant says two men approached him, identified themselves as LTTE members and demanded money or they would harm his father and brother.  He raised some money and then his son was born and he found a job in Qatar and moved there.  He did not report the demands by the LTTE and said that nobody ever reported the abduction of his brother for fear of reprisals.  I note that the tribunal in its reasons has recorded that the reason given by the Applicant for not reporting the abduction of his brother was fear of reprisals.

9          He then said that soon afterwards his father told him that his shop had been burned down by the LTTE and he only survived because the Applicant’s wife gave him money.  In February 1995, the LTTE demanded money from the Applicant’s wife.  She moved to a house in a suburb of Colombo.  She visited Qatar later that year.  In late 1996, they bought a house in another suburb in Colombo.  In December of that year the LTTE visited the Applicant’s wife and demanded money, warning that they could find her wherever they moved.  She continued to pay money.  In November 1999, the LTTE threatened her at gunpoint, demanding she give money and allow Tamil members to live in her house. 

10        The female Applicant said that LTTE members came to her house and said they wanted to let two terrorist Tigers live there because it was her duty as a Tamil, with a Tamil mother.  She said she left her house the next day and stayed in various places until she left for Australia in April 2000.

11        The tribunal dealt with those claims in this way.  It said this:

“The tribunal has grave doubts that the Applicant’s brother was abducted in 1994 and has not been seen since then while in the meantime the LTTE has continued to harass his father and extort money from the Applicant on the basis that it will not harm his brother.  The claim that the Applicant’s have endured systematic harassment over a period of six years or so is a story that does not fit comfortably with the failure to report to the authorities the brother's abduction, the arson of the father's business and the subsequent threats and demands of the LTTE, the failure of the Applicant’s father to move to Colombo from Batticaloa to avoid the LTTE, especially after his business was destroyed in 1994, the willingness of the Applicant to leave his wife and child in Colombo at the mercy of the LTTE, the failure of the Applicant’s spouse to report that the LTTE demanded her house to accommodate men they identified as Tiger terrorists and the willingness of both the Applicant and his spouse to return to Colombo from Qatar, in the Applicant’s case, on 13 occasions over five or six years. 

Further, their final escape would appear to lay the groundwork for the Applicant’s father's and brother's deaths, as they would no longer be meeting the LTTE demands, which they claim have been responsible for keeping the brother alive.  The Applicant returned to Colombo on 13 occasions and his wife returned on two occasions.  That in itself provides sufficient reason for the tribunal to conclude that they do not have genuine fears of persecution for the reasons they have described, although they may have other legitimate reasons for wishing to escape Sri Lanka.”

12        Later the tribunal says:

“It is inherently implausible that the abduction of the Applicant’s brother and the subsequent demands for money over six years would not be reported by the victim's family.  It is also implausible that the Applicant’s father would not report the arson of his business or that he would not move to Colombo to avoid harassment by the LTTE after that incident.”

13        Then this:

“Available information including the material submitted by the Applicant regarding the assassination of a government minister demonstrate that the Sri Lankan government devotes a massive amount of time and energy to countering the LTTE.”

14        Then the tribunal goes on to set out the references.  Then says:

“It is clear that the LTTE has no control in Colombo, notwithstanding sporadic terrorist attacks in that city, particularly on prominent people and institutions.”

15        The tribunal therefore made a finding of fact that the chronology which the Applicant relied upon did not occur.  The tribunal did not believe the Applicants.  The ground which is relied upon as a failure by the tribunal to consider a fundamental factor is put in two ways in the particulars but what it comes down to is this:  that the tribunal failed to consider the Applicants’ claim that they did not report the abduction of the brother and the other incidents, including the demands and payment of money because of fear of reprisals.  That, it is put, is the core of their claim and it is put that that is something that the tribunal has not considered and that that is an arguable case.

16        I do not consider that it does raise an arguable case.  It is, I consider, a clear attempt to re-argue the questions of fact.  Leaving aside any question of whether the Applicants’ claim that fear of reprisal was their reason for not reporting is an essential element or an integral element of their case such that failure to consider it would be a failure to exercise jurisdiction, it is plain that the tribunal was aware that that is what the Applicants were saying.  As I have said, the reasons of the tribunal record is this:

“The male Applicant said he did not report the demands by the LTTE and said that nobody ever reported the abduction of his brother for fear of reprisals.”

17        The tribunal was plainly aware that that was what the Applicants were saying.  Having shown that it was aware that that was what the Applicant was saying, the tribunal then went on to consider all the matters of fact which were being alleged and came to a conclusion, as a matter of fact, that they did not occur.  It is correct that one of the basis for not believing what the Applicants said is that their claim for systematic harassment does not sit comfortably with the failure to report, but it is not the only reason.  It is not a failure to deal with the claim that the demands of the LTTE and the abduction of the brother were not reported for fear of reprisals.  It was considered.  It was dealt with as one of the matters of fact which the tribunal had to deal with.  Even if it was such an important matter that it was fundamental to jurisdiction it has been considered.  It has been considered as a matter of fact.  One thing is clear:  in the cases which are continuing to emerge after the decision of the High Court in Plaintiff S157 v Commonwealth of Australia, that questions of fact are matters for the tribunals involved, the Refugee Review Tribunal and the Migration Review Tribunal, not something to be reviewed by a court. 

18        I think it is quite plain that the tribunal has decided this issue on questions of fact.  It has taken into account the claim by the Applicants that they did not report because of fear of abduction and that was a question of fact.  Accordingly, whatever test is to be applied, whether it is exceptional circumstances or arguable case or clear and plausible case, I do not consider that the Applicants show that they have one.  The application to set aside the judgment is dismissed.’

38                  In that passage, his Honour made clear that Mr Gibson had urged everything which could possibly have been submitted in support of the contention that the Tribunal had been guilty of jurisdictional error.  Weinberg J, on 8 December 2004, held that no error of law was discernible in that rejection by the Federal Magistrates Court of the appellants’ attack on the foundational decision of the Tribunal.

39                  It follows that, after Weinberg J had pronounced his orders on 8 December 2004 dismissing the appellants’ appeal from the orders of Phipps FM of 17 September 2003 and the High Court’s refusal of leave to appeal from the orders of Weinberg J, the matters which the appellants now seek to raise had been litigated to finality.  As I have explained, none of the orders which I have just mentioned was vitiated by any fraud or misconduct of the appellant’s former solicitor-migration agent, Mr Gunatilake.  Nor has it been shown that any fraud or misconduct operated to nullify the foundational decision of the Tribunal of 19 March 2002.

40                  Assuming in favour of the appellants that an appeal lies as of right from the orders of Burchardt FM of 16 June 2008, his Honour was entirely correct in his refusal to revisit the exhaustive examination by Phipps FM of whether the original decision of the Tribunal had been infected by jurisdictional error.  The appeal must therefore be dismissed with costs.

.

Associate:

Dated:         15 September 2008