FEDERAL COURT OF AUSTRALIA

SZSXT v Minister for Immigration and Border Protection [2013] FCA 1440

THE COURT ORDERS THAT:

1.    The requirement in r 36.57(2) of the Federal Court Rules 2011 for at least 21 days notice of an application for the Court to receive further evidence on appeal be dispensed with so as to permit the application to be filed and heard on 20 December 2013.

2.    The application for leave to appeal from the judgment of Cowdroy J given on 17 December 2013 at Sydney dismissing the applicant’s interlocutory application to restrain the first respondent from taking any steps to remove the applicant from Australia be granted.

3.    Costs be reserved.

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

REASONS FOR JUDGMENT

Introduction

1    This is an application for leave to appeal from an interlocutory judgment of a judge of this Court given on 17 December 2013.

2    The Federal Circuit Court, on 6 September 2013, refused the applicant’s application for an extension of time, pursuant to s 477(2) of the Migration Act 1958 (Cth), to file an application for review of a decision of the Refugee Review Tribunal.

3    On 17 December 2013 Cowdroy J ordered that the applicant’s interlocutory application, filed on 17 December 2013, for an order that the respondent Minister be restrained from removing the applicant from Australia “pending the hearing of the associated appeal” be dismissed: SZSXT v Minister for Immigration and Border Protection [2013] FCA 1394. Cowdroy J held that there was no arguable case of jurisdictional error on the part of the Federal Circuit Court of Australia.

4    The central issue on this application for leave to appeal is whether, in light of new evidence read without objection before me, there is sufficient doubt to warrant the judgment of Cowdroy J being reconsidered by the Full Court.

5    The position of the Minister was that the new evidence did not prove arguable fraud affecting the outcome before the judge of the Federal Circuit Court and there was, in that respect and otherwise, no jurisdictional error on the part of the Federal Circuit Court or other reason to conclude that the judgment of Cowdroy J was attended by sufficient doubt.

The new evidence

6    I shall first summarise the affidavit affirmed by the applicant on 19 December 2013. The entirety of the affidavit was not new evidence but, as I have said, there was no objection to the new evidence being adduced before me or to the admissibility of the contents of the affidavit. Further, counsel for the Minister did not seek to cross-examine the applicant on his affidavit.

7    No objection was taken by the Minister to the application to dispense with the 21 day requirement in r 36.57(2) of the Federal Court Rules 2011 (Cth). I so order.

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

9    On or about 12 April 2012 he arrived at Christmas Island as an asylum seeker from Iraq and stayed there for 22 days. He travelled to Australia without a passport or documents in 2012.

10    On or about 19 July 2012, he applied for a protection visa.

11    On or about 7 September 2012 he received a phone call from the government through an interpreter telling him that his application for a protection visa was refused.

12    On or about 10 January 2013 he appeared at a hearing of an application for review of the decision of the Minister’s delegate before the Refugee Review Tribunal (the Tribunal). The government provided him with a representative to appear at the Tribunal hearing, a Mr Ford from Playfair Visa and Migration Services. On or around 12 April 2013 he received a telephone call from Mr Ford’s office that his case was finished and was told: “You have 32 days to do something with the federal (sic).”

13    The applicant was given a copy of the Tribunal decision. He did not know how to do anything further with his case.

14    In or around May 2013 the applicant was referred by friends to a Mr Laba Sarkis. The applicant rang Mr Sarkis who said “Come to my address, I am professional at this”. At some point, the applicant gave the Tribunal decision to Mr Sarkis who did not read to the applicant the letter from the Tribunal to the applicant. Mr Sarkis just said “I will give this to the immigration or the High Court”.

15    In or about early May 2013 the applicant went to the address that Mr Sarkis had provided. Mr Sarkis said: “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.”

16    Soon after that meeting, in or about the first week of May 2013, the applicant gave Mr Sarkis $500 cash and was handed a receipt. The applicant understood Mr Sarkis was representing him for his appeal. The applicant signed documents that Mr Sarkis asked him to sign. Mr Sarkis did not tell him what he was signing and the applicant trusted him to get his permanent visa. At a later time the applicant also paid Mr Sarkis $1,000 in cash.

17    The applicant stated his belief that Mr Sarkis was looking after him and everything would be taken care of by Mr Sarkis.

18    The applicant annexed to his affidavit a press release published on the Department’s website to the effect that on or about 30 April 2013 the Department had initiated court action against Mr Sarkis following complaints alleging he provided immigration assistance and asked for and received associated fees while not a registered migration agent. Mr Sarkis was said to have been charged with offences under ss 280, 281 and 284 of the Migration Act. The applicant deposed that he was not aware of this notification until 18 December 2013 when he was informed by his solicitor.

19    At another meeting in the first week of May 2013, Mr Sarkis told the applicant to sign a paper for him and said words to the effect: “This is application for the court, all you do is sign her[e] and I do the rest. You will be permanent residency (sic)”.

20    The applicant said he believed that Mr Sarkis would put in the application to the (Federal Circuit) Court on time. The applicant said he did not know at any stage that Mr Sarkis did not put his application to the (Federal Circuit) Court in time.

21    The applicant said he was later informed that Mr Sarkis had filed an application for review of the Tribunal decision to the Federal Circuit Court on 11 June 2013. The applicant said he was not aware it was filed late and Mr Sarkis did not have any conversation with the applicant about it.

22    On 11 June 2013, Mr Sarkis was due to appear in the Downing Centre on charges of unregistered migration agent offences, according to the press release. At the time, the applicant was not aware that Mr Sarkis was to answer any charges of any kind. He first became aware of this on 18 December 2013 when he was informed by his solicitor.

23    On 10 July 2013 there was a directions hearing in the Federal Circuit Court. Mr Sarkis did not tell the applicant this, the applicant said in his affidavit. There was a dispute between the parties as to whether or not the applicant attended the directions hearing in the Federal Circuit Court. I do not find it necessary to resolve the dispute.

24    The applicant said he was never informed that there was a direction in his Federal Circuit Court appeal case to file further affidavits by 28 August 2013. Mr Sarkis never told him to sign anything further for his application to the Federal Circuit Court or that he had to do an affidavit. The applicant was not aware that Mr Sarkis had filed an affidavit in support which only attached the transcript of the Tribunal hearing. (I note there was in fact a formal affidavit filed by the applicant in the Federal Circuit Court.)

25    On 6 September 2013, Mr Sarkis said to the applicant words to the effect of: “I will take you to Court for meeting”. They first went to a coffee shop, 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. The applicant says that he believed that Mr Sarkis was a lawyer who was about to defend him in court because they went to the Court together.

26    At the Court, the applicant said he did not know what to do and relied on Mr Sarkis. They walked into a courtroom and Mr Sarkis said words to the effect of “sit there next to the speaker and you are sitting next to the lawyer for the Government.”

27    Mr Sarkis sat in the row behind the applicant. When the judge came in, the applicant said, he did not know what to say or do or what was happening. He looked at Mr Sarkis and Mr Sarkis was writing notes on his pad. The applicant said in his affidavit before this Court that he was nervous and did not understand what the judge was saying without the interpreter defending him. The applicant said in his affidavit he was expecting the interpreter to defend him. Even the judge asked the applicant “Why [are] you running late and not put in application till finished? (sic)” The applicant said “I have my solicitor Toufic Laba Sarkis, I dont know”. The applicant deposed that he signed the forms that Mr Sarkis asked him to because he trusted him. He did not know that his application was without any affidavit evidence about an extension of time. He believed that Mr Sarkis did what the government and Court wanted him to do as a professional. He did not know until much later that Mr Sarkis did a bad job for his case. The applicant said he did not know anything about Australian law or courts. He deposed that if he knew that Mr Sarkis was not a lawyer he would not have given him paperwork or trusted him. The applicant would have looked for a lawyer to help with his rights with the government. After the decision of the Federal Circuit Court on 6 September 2013, Mr Sarkis said to the applicant on many occasions words to the effect of: “do not worry I will get you residency in two weeks. I am doing paperwork for you.”

28    The applicant annexed to his affidavit a letter dated 20 September 2013 sent to the Minister on the letterhead of Mr Sarkis which, on the letterhead under the name of Mr Sarkis, contained the following: “Dip. Migrant Ed Accredited Interpreter, NAATI (3403) Justice of the Peace, 147001”.

29    The applicant said he telephoned Mr Sarkis four or five times a week for a few weeks following the decision of the Federal Circuit Court. Mr Sarkis always said words to the effect of: “Don’t worry I know all about it and I will look after it.”

30    On 6 December 2013 the applicant received a telephone call from the Department telling him that his visa had expired so he had to attend the Sydney city office of the Department. At that time Mr Sarkis said words to the effect of: “You had to visit the immigration to pick up your visa.”

31    The applicant said he did not think there was a problem as Mr Sarkis was doing the applicant’s paperwork for residency and he believed bridging visas had been or were renewed automatically.

32    When the applicant attended for interview for another bridging visa he was detained and taken to Villawood detention centre. The applicant said he was shocked as he did not know why he was in trouble.

33    Over the following days Mr Sarkis continued to tell the applicant that he was filling (sic) more forms and usually said words to the effect of: “Once we lodge these papers you will be out in days.”

34    On 12 December 2013 the applicant was served with a Notice of Intention to Remove from Australia on Tuesday, 17 December 2013 the destination being Baghdad, Iraq.

35    Counsel for the applicant also relied on the fact that the application to the Federal Circuit Court, including the application for an extension of time, stated that it was prepared by the applicant rather than by Mr Sarkis and on the further fact that the applicant’s affidavit to the Federal Circuit Court affirmed on 10 June 2013 was said to have been prepared by the applicant.

Procedural background

36    The judge of this Court, Cowdroy J, was exercising jurisdiction under s 39B of the Judiciary Act 1903 (Cth): see SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 and Tang v Minister for Immigration and Citizenship [2013] FCAFC 139, there being no appeal from the judgment of the Federal Circuit Court refusing to extend time.

37    The applicant submitted to Cowdroy J that the judge of the Federal Circuit Court fell into jurisdictional error due to, in summary:

(a)    unreasonably failing to give due weight to an error of the Tribunal, namely that the Tribunal failed to properly consider the UNHCR Guidelines;

(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 being committed upon the Court by the representative for the applicant, who represented that he had expertise such as to properly conduct the applicant’s application.

This last ground was amended before me, although not in any material way, so as to read, in full:

That the person who assisted in preparing the application to the Federal Circuit Court of Australia committed fraud in that he held himself out to have expertise in the preparation and presentation of migration matters whereas in fact he had no such expertise and in fact conducted the applicant’s case such that he prevented the applicant’s case from being properly presented such that the fraud was perpetuated (sic) on the Court as well and the Court’s jurisdiction was in effect unexercised.

38    Cowdroy J said that the first ground did not disclose jurisdictional error: it was not the case that the primary judge mistakenly asserted or denied the existence of jurisdiction or misapprehended or disregarded the nature or limits of his functions or powers. The judge of the Federal Circuit Court was required to balance competing considerations in light of whether it was necessary in the interests of the administration of justice to allow the application for an extension of time. The judge of the Federal Circuit Court weighed the applicant’s failure to explain the delay in bringing his application against the possible issue of the Tribunal’s lack of consideration of a part of the 2012 UNHCR Eligibility Guidelines.

39    As to the second ground, Cowdroy J found it was not the case that the judge of the Federal Circuit Court suggested that approaching the Minister for reconsideration of the applicant’s refused application for a protection visa was a remedy arising out of any jurisdictional error of the Tribunal. Rather, having decided to reject the application for extension of time due to the applicant’s delay, his Honour was merely indicating that the Minister retained a discretion to grant a protection visa to the applicant. That observation on the part of the judge of the Federal Circuit Court did not amount to jurisdictional error.

40    As to the third ground, Cowdroy J held there was insufficient material before the Federal Court to suggest that it was reasonably arguable that the representative of the applicant before the Federal Circuit Court engaged in conduct constituting fraud to the requisite Briginshaw v Briginshaw (1938) 60 CLR 336 standard. Cowdroy J also referred to SZFDP v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53].

41    Also on 17 December 2013 Cowdroy J ordered that the first respondent be restrained from taking any steps to remove the applicant from Australia until 4 pm on 20 December 2013 or until further order. That order was extended by me on 20 December 2013 to 4 pm on 24 December 2013.

42    The applicant now seeks leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) from the orders of Cowdroy J.

The proposed appeal

43    The proposed grounds of appeal, set out in the draft notice of appeal, are as follows:

1.    In the Federal Court judgment dated 17 December 2013, the Federal Court Judge found at [18]: “there is insufficient material before the Court to suggest that it is reasonably arguable that the representative for the applicant before the FCCA engaged in conduct constituting fraud to the requisite Briginshaw v Briginshaw (1938) 60 CLR 336 standard.” At the time of that hearing, his Honour did not have before him new evidence of the Appellant which supports the allegation of fraud perpetrated by a third party who assisted the applicant in making an application to the Federal Circuit Court of Australia (FCCA) (altogether (“New Evidence”) The New Evidence consists of an affidavit from the Appellant detailing his dealing with the third party, which was obtained the day after the judgment and sworn by the appellant the following day. The New Evidence is to be filed and served in support of the remaining grounds of the Original Application which will be heard at the same time as the Application for Leave to Appeal, 20 December 2013. Therefore the Appellant seeks to admit that new evidence for the purpose of this Appeal as well.

2.    The Federal Court Judge erred in finding that the Federal Circuit Judge did not err in the balancing of the two competing considerations in exercising the Court’s discretion to allow the application for an extension of time pursuant to s. 477(2) of the Migration Act 1958 (Cth) did not amount to a jurisdictional error.

3.    The balancing of the competing considerations was done in circumstances where not all of the evidence of the fraud by the third party was before the Federal Circuit Court Judge. Therefore, the weighing up was compromised by the third party. Subsequently, the Federal Court judgment was similarly compromised as it also did not have the benefit of the New Evidence.

44    The essential question on this application for leave to appeal is whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court. I accept for present purposes that the other limb of the common considerations, whether substantial injustice would result if leave were refused supposing the decision were wrong, is made out. I accept that the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. The two elements of the test are not unrelated. I also accept that the interlocutory decision from which leave to appeal is sought is not on a point of practice. See generally: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9 per Sheppard, Burchett and Heerey JJ. The discretion conferred by s 24(1A), it was there said, was an “unfettered discretion” conferred in “unqualified terms”.

45    Cowdroy J said the basis for the application for an interlocutory injunction was to allow the applicant the opportunity to establish jurisdictional error in the decision of Judge Driver delivered on 6 September 2013: SZSXT v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1293. By that judgment the primary judge dismissed an application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to appeal a decision of the Refugee Review Tribunal (the Tribunal) delivered on 11 April 2013. By its decision, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The application for the visa was based on the applicant’s claim to fear persecution in Iraq in consequence of his religion.

46    Cowdroy J dismissed the applicant’s interlocutory application because his Honour was not satisfied that the applicant had shown a sufficient likelihood of success to justify the making of the injunction he sought. In coming to that conclusion, Cowdroy J was mindful that the balance of convenience weighed heavily in the applicant’s favour.

47    In short, Cowdroy J found that there was no sufficient likelihood of establishing jurisdictional error in the decision of the judge of the Federal Circuit Court.

48    Is the decision of Cowdroy J attended by sufficient doubt to warrant it being reconsidered by the Full Court? I address that question as if Cowdroy J had had before him the new evidence which was tendered before me.

49    I shall consider first the jurisdiction being exercised by the judge of the Federal Circuit Court.

50    Section 477 of the Migration Act provides:

Time limits on applications to the Federal Circuit Court

(1)     An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)     The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

…

51    In satisfaction of s 477(2)(a)    the Federal Circuit Court judge had before him a written application for an order that the time for making the application be extended under s 477 and under the heading “Grounds of application for extension of time (specify why the applicant considers that it is necessary in the interests of the administration of justice to extend time)” the following was stated:

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 is necessary in the interests of administration of justice as I do have an arguable case.

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

52    The grounds of the application in the Federal Circuit Court were as follows:

1.    The decision of the Refugee Review Tribunal (the Tribunal) is affected by jurisdictional error in that:

a)    The Tribunal failed to exercise its jurisdiction to consider my claim for complementary protection in respect of a real risk of significant harm faced as a Sunni Muslim if I return to my country.

b)    The Tribunal’s decision does not dispute the fact that while in Safwan I lived as if I was a prisoner and that I faced serious harm at the hands of the Shias such as threats, harassment, kidnapping of my brother and prevented from practising my religion/religious beliefs fully.

c)    The Tribunal wrongly considered the issue of relocation and failed to make appropriate assessment and the country condition information in fact supports my claim in that there is a real chance I would face persecution at the hands of the Shia extremists in Saed Dhakil and areas.

2.    The Tribunal accepted that I am Sunni and accepted the ongoing conflict in Iraq especially between Sunni and Shia. The Tribunal failed in its findings to consider that I fear violence personally.

53    The findings and reasoning of the judge of the Federal Circuit Court were as follows.

54    The Federal Circuit Court noted that the applicant sought judicial review of a decision of the Tribunal made on 11 April 2013 and the application to the Court was filed on 11 June 2013. The time for making application to the Federal Circuit Court expired on 16 May 2013.

55    The matter came before the Federal Circuit Court first for directions on 10 July 2013. The matter for hearing on the extension of time was listed for 6 September 2013 and the applicant was given the opportunity to file and serve any affidavits by 28 August 2013. The judge said that he was left with no affidavit evidence bearing on the question of the extension of time but he gave the opportunity to the applicant to give oral evidence. The applicant took that opportunity. He was cross-examined.

56    The judge accepted the applicant’s evidence that he was represented before the Tribunal by a Mr Ford and the Tribunal notified Mr Ford of the decision by letter dated 12 April 2013. The judge also accepted that he was contacted on behalf of Mr Ford within a couple of days of the Tribunal decision to inform him of it and his rights of appeal. The applicant clearly understood that he had the opportunity to apply to the Court within a limited time. The applicant said that he relied on Mr Ford to lodge that application on his behalf and was told that that would be done.

57    The applicant gave evidence that he was twice contacted by the Department to enquire about his circumstances, given that no application had been filed. He claimed he told the Department that Mr Ford was arranging an appeal to the Court. He was told by the Department that they had no record of any appeal in their system.

58    The judge was prepared to give the applicant the benefit of the doubt that there was, in his mind, some confusion as to whether a court application had been lodged. However, the judge found, based on the applicant’s own evidence, that confusion should have been removed when he was told in early May by the Department that the Department had no record of an appeal.

59    The applicant gave evidence before the Federal Circuit Court that, around the time the appeal period expired, he consulted Mr Sarkis. Mr Sarkis requested the audio recording (CDs) of the Tribunal hearing. The judge rejected the applicant’s evidence as to the timing of his consultation with Mr Sarkis. Rather than the applicant consulting Mr Sarkis around the time the appeal period expired, the judge found that the applicant consulted Mr Sarkis and arranged for him to assist him with his appeal to the Court at least 10 days before the appeal period expired. The judge said that was, in his view, sufficient time for the applicant, with Mr Sarkis’ assistance, to file the application. However, the application was not filed until 11 June 2013. That delay was not explained by the request for the Tribunal hearing CDs. The judge found that the applicant had not adequately explained his delay in coming to Court.

60    The Federal Circuit Court judge agreed, with one qualification, with the contention on behalf of the Minister that even if the delay had been sufficiently explained, which it had not, an extension of time should be refused as the purported judicial review application had no legal merit.

61    The Federal Circuit Court judge noted that the Tribunal’s decision turned upon a relocation finding. The Tribunal reasoned that the applicant could avoid risk of serious harm in a Shia dominated area of southern Iraq by relocating to a Sunni dominated area further north. The judge was troubled by the Tribunal not discussing the content, as claimed by Mr Ford in a submission to the Tribunal, of the 2012 UNHCR Eligibility Guidelines.

62    However, the Federal Circuit Court judge said, that concern in his mind was not sufficiently compelling to overcome the applicant’s failure to adequately explain his delay in coming to Court. The judge said:

If the Tribunal erred in failing to pay proper regard to the UNHCR Guidelines, the applicant has the opportunity to draw that error to the attention of the Minister’s Department, with a view to possible consideration of the circumstances by the Minister for Immigration. The Court has no influence over that process.

63    The judge of the Federal Circuit Court refused the application for an extension of time.

Consideration

64    By s 8 of the Federal Circuit Court of Australia Act 1999 (Cth) the Federal Circuit Court of Australia is a court of record and is a court of law and equity. By s 10 of that Act it has such original jurisdiction as is vested in it by laws made by the Parliament by express provision. By s 476 of the Migration Act 1958, the Federal Circuit Court has, subject to that section, the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. By s 476(2) the Federal Circuit Court has no jurisdiction in relation to certain specified decisions.

65    Apart from the reasons of the Federal Circuit Court judge and the applicant’s recent affidavit, which I have summarised above, there was no evidence before me of what occurred in the Federal Circuit Court, by way of transcript or otherwise.

66    The circumstances in which in private law cases a judgment can be set aside for fraud were considered by the Court of Appeal in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 by Kirby P, with whom Hope JA and Samuels JA agreed. The Court of Appeal said that such proceedings were well-established in Australian law and were independent of an appeal and were equitable in origin and nature: see also Monroe Schneider Associates Inc v No 1 Raberem Pty Ltd (1992) 37 FCR 234.

67    The Court of Appeal stated a number of principles to be established by law and which governed proceedings of that kind. See also Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 5) [2004] FCA 1262 per French J at [60] and Di Carlo v Dubois and Ors [2007] QCA 316 at [31]-[32]. So far as presently relevant those principles were as follows. First, the essence of the action is fraud. The allegations must be established by the strict proof which such a charge requires. 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 had been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment. The other requirements must be fulfilled. Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment. Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.

68    In my opinion the evidence does not establish an arguable case of fraud on the Federal Circuit Court or for the judgment of the Federal Circuit Court to be set aside for fraud within these principles.

69    However, in my opinion, there is a serious question to be tried whether these principles do not apply in public law cases. I refer to SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [11] where the High Court distinguished fraud in the fields of law such as the common law, equity and statute and said they were concerned principally with the creation and protection of personal and proprietary rights in inter partes litigation, rather than with what today might be identified as public law.

70    Similarly, although I have difficulty in seeing how fraud on the Federal Circuit Court is a matter going to its jurisdiction so as to constitute a jurisdictional error, the High Court has explained that jurisdictional error does not exhaust the circumstances in which a judgment of an inferior court may be quashed for fraud: see [73]-[75] below.

71    Arguably, in my opinion, those circumstances are not displaced or affected by reg 16.05 of the Federal Circuit Court Rules 2001 (Cth) which provides that the Federal Circuit Court may vary or set aside its judgment or order after it has been entered if, amongst other things, the order is obtained by fraud.

72    Next, in public law cases the High Court has indicated that fraud may extend to third party fraud unlike, it appears, the position explained in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534: see [74] below.

73    I was taken to Craig v South Australia (1995) 184 CLR 163 at 176-180 and 186 by counsel for the Minister. However there are references earlier in Craig v South Australia (1995) 184 CLR 163 at 175-176 to the scope of certiorari and that, where available, it is a process by which a superior court, in the exercise of the original jurisdiction, supervises the acts of an inferior court or other tribunal and that where the writ runs it 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”. There is a footnote to the example “fraud” which refers to R v Wolverhampton Crown Court; ex parte Crofts [1983] 1 WLR 204 at 206 where the reference is to fraud consisting of perjured evidence and, with the note that “fraud” in this context is used in a broad sense which encompasses “bad faith”, to Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171.

74    More significantly, in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR, the Court at [17] quoted the relevant passage from Craig v South Australia (1995) 184 CLR 163 at 175-176 and at [18] cited R v Wolverhampton Crown Court; ex parte Crofts [1983] 1 WLR 204 with approval. The Court also cited with approval at [20] the judgment of Lord MacDermott LCJ in R (Burns) v County Court Judge of Tyrone [1961] NI 167 extending certiorari to cases of “third party fraud” and rejecting a submission that the perjury must be by a party or the party must be privy to it.

75    Again, in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR at [22] the High Court said that another practical aspect of fraud in public law that may tend in a particular case to set it apart from fraud in relation to civil suits in general was that a victim of it would have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted. Their Honours referred to Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 as an example of the inadequacy of a conventional remedy such as damages.

76    I would not regard the question of whether fraud, in the relevant sense, on the Federal Circuit Court could found a remedy in this Court as unarguable. In my view it gives rise to a serious question to be tried. Even though the Federal Court is not granted jurisdiction under s 39B of the Judiciary Act by reference to the writ of certiorari, that writ may be available or other relief may be available, where appropriate, as an ancillary remedy not limited to jurisdictional error where, for example, an injunction is sought against an officer of the Commonwealth: Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at [47]; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [51]; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2007] FCAFC 32; (2007) 157 FCR 260 at [59] per Spender, French and Cowdroy JJ. It is to be recalled that in the present case there is no right of appeal from the Federal Circuit Court to the Federal Court: see [36] above and compare Re McBain (2002) 209 CLR 372.

77    Finally, in my opinion, there is a serious question to be tried whether the decision by, as opposed to the jurisdiction of, the Federal Circuit Court judge refusing to extend time was affected by fraud, albeit fraud of a third party, Mr Sarkis. 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.

78    In my opinion therefore, on the basis of the new evidence, the judgment of the judge of this Court is attended by sufficient doubt to warrant it being reconsidered by the Full Court.

Conclusion

79    For these reasons I grant the application for leave to appeal from the judgment of Cowdroy J. I shall reserve costs.

Associate:

Dated:    24 December 2013