FEDERAL COURT OF AUSTRALIA

SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant arrived in Australia most recently on a short stay working visa on 24 January 2011. Shortly before that visa expired, he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 21 March 2011. A delegate of the Minister refused to grant that visa on 27 May 2011 and notified the Appellant of the decision and his review rights by a letter dated and posted on 27 May 2011.

2    The Appellant’s application for review was received by the Refugee Review Tribunal on 9 September 2011. That application for review was not lodged within the time prescribed by s 412 of the Migration Act 1958 (Cth). On 15 September 2011 the Tribunal thus invited the Appellant to comment on why his application should be treated as valid. On 6 October 2011 the Tribunal received a letter from the Appellant setting forth a submission in which he claimed that he had left the application for review with a “person who promised to help [him]” and who provided assurances that the application for review had been lodged and that the Appellant was “not to worry”.

3    The Tribunal decided on 26 October 2011 that it did not have jurisdiction. On 16 November 2011 the Appellant applied for review of the Tribunal’s determination by the Federal Magistrates Court. On 30 June 2012 the Appellant filed an amended application for review in that Court. On 29 February 2012 the Federal Magistrates Court dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth): SZQVV v Minister for Immigration [2012] FMCA 154. That decision was an interlocutory decision (Federal Magistrates Court Rules r 44.12(2)) and thus leave to appeal to this Court was required: Federal Court of Australia Act 1976 (Cth) s 24(1A).

4    Any application seeking leave to appeal to this Court from the decision of the Federal Magistrate was required to be filed within 14 days: Federal Court Rules 2011 (Cth) r 35.13(a). No application was filed until 21 March 2012. On 17 August 2012 a Judge of this Court, his Honour Justice Greenwood, extended the time within which an application seeking leave to appeal was to be filed and granted leave to appeal: SZQVV v Minister for Immigration and Citizenship [2012] FCA 871.

5    The appeal first came before this Court on 15 November 2012. On that occasion an order was made pursuant to r 4.12 of the Federal Court Rules 2011 that a referral certificate be issued to permit the Appellant to obtain the benefit of legal assistance. It was concluded that the basis upon which leave to appeal had been granted warranted the Appellant having the benefit of such assistance. The proceeding came back before the Court on 26 November 2012. The Appellant again appeared unrepresented. He acknowledged that he had seen legal advisors. Those who provided advice did not appear for the Appellant. Given that an interpreter was not present in Court, but only by means of a telephone connection, the proceeding was again adjourned until 4 December 2012. The Appellant was directed to file and serve any further evidence or other materials upon which he might wish to rely by 30 November 2012.

6    On 4 December 2012 the Appellant again appeared unrepresented. On that occasion he had the assistance of an interpreter who was present in Court. Although he claimed not to have received a copy of the Appeal Book, a copy had in fact been forwarded to him on 29 October 2012. In any event, the Appellant had previously seen each of the documents contained within the Appeal Book and suffered no prejudice in his appeal ultimately being heard on 4 December 2012.

7    The appeal is to be dismissed.

THE GROUNDS OF APPEAL

8    The Grounds of Appeal were expressed as follows (without alteration):

1.    The Refugee Review Tribunal failed to consider the relevant laws about the notification of the delegate’s decision.

Particulars:

A.    The Tribunal failed to consider the relevant laws about the notification of the delegate’s decision that:

i)    The Tribunal failed to follow the relevant laws about the notification of the delegate’s decision and failed to consider my submission lodged at the Tribunal dated 6 October 2011.

2.    The Refugee Tribunal failed to provide me natural justice.

Particulars:

A.    The Tribunal failed to provide me natural justice that:

i)    The Tribunal did not consider my fear of persecution at my home country on the basis that my application lodged at the Tribunal was not a valid application. However at the time of Tribunal’s decision I was suffer political persecution.

9    These Grounds are identical to those resolved by the Federal Magistrate. There is, perhaps, some ambiguity as to what was intended to be embraced – or what may legitimately be included – within the ambit of the first Ground of Appeal.

10    If attention is confined to the actual dates that the Appellant was deemed to have been notified of the delegate’s decision and when his application to the Refugee Review Tribunal was filed, there can be no question but that the application was filed outside the prescribed time. Section 412 of the Migration Act thus relevantly provides as follows:

Application for review by the Refugee Review Tribunal

(1)    An application for review of an RRT–reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

(c)    be accompanied by the prescribed fee (if any).

(2)    An application for review may only be made by the non-citizen who is the subject of the primary decision.

(3)    An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

(4)    Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT–reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

Nor can there be any question but that the Tribunal lacked jurisdiction. The “… making of an application within the prescribed time is an essential preliminary to the exercise of the RRT’s function”: Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324 at [31], 97 FCR 407 at 415 per Heerey J. There is no power to “override” the time limitation prescribed by s 412(1)(b): VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 at [32]-[33], 133 FCR 570 at 578 per Gray, Whitlam and Mansfield JJ. See also: SZJMY v Minister for Immigration and Citizenship [2008] FCA 708 at [9]-[10].

11    So construed, the first Ground of Appeal should be dismissed. Nor was there any failure on the part of the Tribunal to consider the 6 October 2011 letter referred to in the first Ground of Appeal. The Tribunal considered that letter; so, too, did the Federal Magistrate.

12    If the Tribunal lacked jurisdiction, no question would arise as to any failure on its part to afford the Appellant procedural fairness. Assuming the absence of jurisdiction, the second Ground of Appeal should also be dismissed.

Fraud unravels everything

13    But a disturbing feature of the present proceeding emerged from the Appellant’s repeated assertion that a person had promised to help him and had provided assurances that he should not “worry”.

14    The letter dated 6 October 2011 which was forwarded to the Refugee Review Tribunal stated in relevant part (without alteration) as follows:

…

Submission:

I am agreed with the Tribunal that I did not lodge this review application within the relevant time limit.

The real fact is that after I received the primary decision of the DIAC I consulted with one of the person who promised to help me lodging this review application. I left the decision with him and he advised me in words that he would lodge the review application. Since I left the primary decision with him I had regular contact with him. He also helped me to prepare my primary decision application lodged with the Department of Immigration and Citizenship. On my question he continuously told me that he had lodged my review application and I would receive an acknowledgement from the Tribunal soon. He confirmed with me that he had lodged the application at MRT and advised me not to worry. After this conversation I received an acknowledgement letter on 9 September 2011 from the Tribunal.

I received another letter from the Tribunal on 15 September 2011. This letter advised me that I have not lodged my review application within the relevant time limit.

I was very shocked and straightway asked him what was happening. He again advised me not to worry. He also advised me that he would make a submission to the Tribunal.

However, I cannot rely on him further. I am preparing this response myself for your kind consideration.

I am not sure how the above fact will help me to make my review application valid. However the fact is true in every word and as a result my life became very hard now.

I may contact with the relevant authority to lodge a complaint against the person who promised to help me. I am consulting with my friends and getting preparation how and where I will make a complaint against the person.

By the time I submit that I lodge this review application after the 23 days period run out. However I also submit that it was beyond my control as I relied on a wrong person to help me lodging this review application.

I apologized for lodging this review application after the 28 days period run out.

I request the Tribunal to consider the above fact and make a favourable decision that my review application is valid.

…

15    The substance of these assertions equally disturbed Greenwood J. His Honour characterised the “appellant’s contended arguable case” as a “a fraud … perpetrated upon him as a potential party to a review proceeding which was not commenced within time due to the conduct of the third party”: [2012] FCA 871 at [50]. Any such conduct of the third party was properly characterised by his Honour as “not only a fraud on the applicant but also a fraud on the Tribunal as the conduct has prevented the applicant from engaging the review processes of the Tribunal at all …”: at [58].

16    Where the jurisdiction of the Refugee Review Tribunal has been invoked within time, the conduct of a third party may nevertheless thereafter operate to stultify the claims for review being resolved according to law: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, 232 CLR 189. The Appellant wife had there claimed a well-founded fear of persecution by reason of her published views questioning the position of women in the Islamic tradition. Other family members relied upon their familial relationship with her and her claims. A delegate of the Minister had refused the application and review had been sought by the Refugee Review Tribunal. After the application had been made to the Tribunal, the conduct of a third party (Mr Hussain) caused the Appellants to not appear before the Tribunal. The Tribunal was obliged to offer the invitation to appear and give evidence and present arguments by reason of s 425 of the Migration Act. The conduct of Mr Hussain was characterised as fraudulent. He had falsely held himself out to be both a solicitor and a migration agent. He had advised the Appellants not to appear before the Tribunal. His advice amounted to a representation that the Tribunal process was a “sham”.

17    In concluding that the decision of the Tribunal was “properly regarded, in law, as no decision at all” ([2007] HCA 35 at [52], 232 CLR 189 at 206), Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ initially placed emphasis upon the importance of s 425 in ensuring procedural fairness as follows:

[30]    Part 7 (ss 410–473) of the Act establishes a detailed regime for the review by the Tribunal of particular visa decisions. (Part 8 (ss 474–486Q) provides for Judicial Review). Division 4 of Pt 7 (ss 422B-429A) lays down the procedure for the conduct of reviews by the Tribunal. …

[31]    The importance of the requirement in s 425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 “is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with”.

[32]    An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.

Their Honours went on to conclude:

[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. …

…

[51]    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.

In so concluding, their Honours clearly distinguished between the conduct of a third party which was fraudulent and conduct that was negligent. Their Honours, at the end of their reasons for decision, thus expressly noted the limitations upon their decision as follows:

[53]    The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.

18    The decision in SZFDE, it was nevertheless contended on behalf of the Minister, is distinguishable. There, the fraudulent conduct arose after the jurisdiction of the Tribunal had been invoked; in the present case, it was correctly submitted that any conduct that could potentially be characterised as fraud arose before the jurisdiction of the Tribunal had been invoked.

19    But the conduct of a third party can unquestionably stultify any attempt by a claimant to even invoke the Tribunal’s jurisdiction. Had it been necessary to resolve the Minister’s submission, it would most probably have been concluded that the principles set forth in SZFDE are not to be confined to fraudulent circumstances which arise only after the jurisdiction of the Tribunal has been properly invoked. Indeed, to so conclude would be to run the risk of potentially encouraging even more reprehensible conduct on the part of third parties by frustrating an individual’s ability to even lodge a claim with the Tribunal. Such cannot be the necessary limitations upon the principles set forth in SZFDE.

20    Such a conclusion, however, is unnecessary for the purposes of the present proceeding.

BUT THERE HAS BEEN NO FRAUD

21    Left to one side is any question as to whether the existing Grounds of Appeal embrace any argument founded upon the alleged conduct of the person referred to in the 6 October 2011 letter. If any argument did emerge, consideration could then be given to whether any application for leave to amend was required or should be granted.

22    But no such argument emerges.

23    Any potential argument founded upon the alleged “fraud” of a third party fails on the facts.

24    The Appellant has had the benefit of a referral certificate issued under r 4.12 of the Federal Court Rules 2011 and the benefit of legal advice. That referral extended to both the assistance of a solicitor and Counsel. Having had the benefit of that advice, no Amended Notice of Appeal was sought to be filed and no further attempt was made to verify or expand upon the factual matters asserted in the 6 October 2011 letter. No further evidence or other materials have been adduced other than that which was available before the Federal Magistrate. No inference adverse to the Appellant should be drawn, however, simply because no evidence was adduced after legal advice was received or from the fact that the legal representatives who advised the Appellant did not appear before the Court on 26 November 2012.

25    Whether the assertions set forth in the 6 October 2011 letter could be substantiated is simply unknown. It is equally unknown whether the Appellant “consulted” with the person referred to in his letter before or after the period prescribed by s 412 of the Migration Act had expired. It is not known whether the person referred to in the letter had any knowledge of the time limits imposed by the Migration Act or any knowledge as to how the Appellant could best advance his claims before the Tribunal.

26    The Appellant has been given every opportunity before both the Federal Magistrate and this Court to supplement the explanation set forth in the 6 October 2011 letter. That opportunity has not been taken up.

27    Any claim founded upon the potential “fraud” of the person referred to in the 6 October 2011 letter thus lacks any factual support. The Appellant has been given repeated opportunities to provide such factual support. But no evidence has been forthcoming.

28    This Court must accordingly resolve any potential argument that the Appellant may have based upon the involvement of the person referred to by the Appellant upon the same factual foundation as that available to the Federal Magistrate. The conduct of the person referred to was addressed by the Federal Magistrate as follows:

[12]    The applicant’s written submission and oral submission to me today repeated his explanation for the application to the Tribunal being out of time. That is, that he relied on a friend to file the relevant forms, and did not discover that the friend had failed to do so until he checked the matter at the Department of Immigration two months later. In oral submissions he referred to the friend taking “some money”, but it is unclear to me whether this was by way of remuneration or for payment of fees charged by the Tribunal. I am not satisfied that the applicant has pointed to evidence suggesting that there was any fraud on him performed by the friend. It appears to me that the applicant’s statements point at best to negligence on the part of his friend.

[13]    In any event, I cannot see that the circumstances narrated by the applicant, considered at their highest and assuming they could be verified if the matter proceeded to hearing, would provide him with a ground for obtaining the relief he seeks. The rare occasions in which a Tribunal decision might be found invalid on the grounds of fraud by an agent are confined to frauds which subvert the procedures required under the Migration Act of the Tribunal after the receipt of a valid application for review (see SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at [30]–[35] and [47]–[53]). I do not consider that the principles identified in SZFDE allow the court to overcome or disregard the provisions of the Migration Act imposing a strict time limit on applications to the Tribunal.

[14]    In any event, the circumstances put forward by the applicant do not come within the special circumstances found by the High Court in SZFDE. At best, the applicant has suffered by reason of “bad or negligent advice or some other mishap” in relation to the filing of his application (compare SZFDE at [53]).

[15]    It is well-established under authorities in the Federal Court that the time limit is strict …

The conclusion of central relevance reached by the Federal Magistrate was that he was “not satisfied that the applicant has pointed to evidence suggesting that there was any fraud on him performed by the friend …”.

29    No appellable error is discernible in those reasons for decision of the Federal Magistrate. Any finding of fact could not rise higher than a finding of negligence – but that would not suffice to justify setting the Tribunal’s decision aside.

CONCLUSIONS

30    The appeal is to be dismissed. Neither of the two Grounds of Appeal set forth in the Notice of Appeal have any substance. Nor can any further potential Ground of Appeal be distilled from such facts as may be gleaned from the Appellant’s letter dated 6 October 2011.

31    There is no reason why the Appellant should not pay the costs of the Minister.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    21 December 2012