FEDERAL COURT OF AUSTRALIA

DTW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 356

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an application for leave to appeal from a decision of the Federal Circuit Court of Australia in DTW16 v Minister for Immigration and Border Protection (No. 2) [2019] FCCA 2212 of 31 July 2019. In that decision, the primary Judge dismissed an application by the applicants filed on 13 May 2019 (the Second Reinstatement Application) for reinstatement of their substantive application (the Substantive Application) filed on 8 December 2016. His Honour specifically ordered as follows:

(1)    The Application in a Case filed in this Court on 13 May 2019 is dismissed.

(2)    The First and Second Applicants are to pay the First Respondent’s costs of the Application in a Case as agreed or assessed.

(3)    Pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 28 August 2019 to apply for leave to appeal to the Federal Court of Australia.

2    In the Substantive Application, the applicants had sought an extension of time within which to seek judicial review of the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The decision of the Tribunal on 30 January 2015 had affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural affairs (then the Minister for Immigration and Border Protection) (the Minister) on 15 August 2013 refusing the applicants’ applications for protection visas. The hearing of the Substantive Application was not attended by the applicants and accordingly dismissed.

3    On 7 March 2019 the applicants filed an application for reinstatement of the Substantive Application (the First Reinstatement Application). At the hearing, the first applicant informed the primary Judge that the applicants sought to withdraw the First Reinstatement Application. The primary Judge ordered:

(1)    The Application in a Case filed by the Applicants on 7 March 2019 seeking to set aside the Orders of the Court of 19 February 2019 dismissing the Application filed in this proceeding on 8 December 2016 for default of their appearance at the scheduled final hearing is dismissed.

(2)    The First and Second Applicants are to pay the First Respondent’s costs of the Application in a Case in the sum of $1,864.

4    These orders, together with brief reasons, appeared in DTW16 v Minister for Immigration and Border Protection [2019] FCCA 1185.

5    The applicants subsequently filed the Second Reinstatement Application. While not specified as such, it is apparent that this application was brought pursuant to rule 16.05(2)(b) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules), whereby the Court may vary or set aside a judgment if it was obtained by fraud.

Background

6    The background to this matter is set out in the decision of the primary Judge at [1]-[11] of the reasons for judgment:

1.     The First Applicant is a female citizen of Tuvalu aged 42 years, having been born on 21 May 1977, and the wife of the Second Applicant.

2.     The Second Applicant is a male citizen of Samoa aged 44 years, having been born on 19 June 1975, and the husband of the First Applicant.

3.     The Third Applicant is a female citizen of Samoa now aged 18 years, having been born on 3 January 2001, and is the daughter of the First and Second Applicants.

4.     The Fourth Applicant is a male citizen of Samoa aged 14 years, having been born on 8 March 2005, and is the son of the First and Second Applicants.

5.     By Application filed in this Court on 8 December 2016 (substantive Application), the Applicants had originally sought:

a.    an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 644 days outside of the time limit prescribed by s.477(1) for them to make their substantive Application under s.476(1); and

b.     to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 January 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 15 August 2013 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visas).

6.     The First Applicant arrived in Australia on 1 March 2009 on a Student (Class TU) (Subclass 576) visa (Student visa) as a dependant applicant. The Student visa had been granted to the Second Applicant as primary applicant and it expired on 30 July 2013.

7.     The Second Applicant had most recently arrived in Australia on 27 March 2011, having previously travelled to Australia on six occasions. He held the Student visa to undertake studies for a PhD at the University of Queensland.

8.     The Third and Fourth Applicants, who are the children of the First and Second Applicants, arrived in Australia on 1 March 2009 on the Student visa of the Second Applicant as dependant family members.

9.     The Applicants applied for Protection visas on 23 October 2012 with the First Applicant being the primary applicant and the Second to Fourth Applicants applying as secondary dependant members of her family unit, relying on the First Applicant's claims for protection and making none in their own right.

10.     The First Applicant is an educated woman. In her Protection visa application form she claimed that she had attended Tuvalu Secondary School in Fiji and attended the University of the South Pacific in Samoa, and that she has attained a Diploma in Tropical Agriculture in 2000, a Bachelor of Agriculture in 2006 and a Post-Graduate Diploma in Agriculture in 2007.

11.     The First Applicant has worked as a crops physiologist and quarantine officer in Samoa and has worked in Australia as a quality control team leader and quality assurance officer in Queensland. In Samoa between 2001 and 2009 she had been employed by the Samoan Ministry of Agriculture and Fisheries. She speaks, reads and writes the English language and at no time has requested or required an interpreter at the various stages of the processing of her application for the Protection visa, including in this Court.

7    The Substantive Application was set down for hearing on 19 February 2019. The first applicant had agreed to that hearing date and was reminded by the solicitors for the Minister of the hearing date by a letter dated 11 February 2019. The applicants did not appear at the hearing on 19 February 2019. The primary Judge dismissed the Substantive Application at the request of the Minister pursuant to rule 13.03C(1)(c) of the FCC Rules. The primary Judge also awarded costs against the first and second applicants in the amount of $5,600.

8    The First Reinstatement Application was supported by an affidavit of the first applicant also filed on 7 March 2019. In that affidavit, the first applicant deposed that she had inadvertently failed to attend the hearing of the Substantive Application. In determining the First Reinstatement Application in DTW16 v Minister for Immigration and Border Protection [2019] FCCA 1185, his Honour said:

1.    The matter before me this morning is an Application in a Case filed by the Applicants which seeks reinstatement of the original Application filed in this Court on 8 December 2016, which had been dismissed by me for absence of appearance on 19 February 2019. This morning, my Deputy Associate reported to me that the First Applicant, who was the primary applicant for the Protection visa, had indicated to him in Court before I took the Bench that she wished to withdraw the Application in a Case. When the matter was called on I noted to the First Applicant and the Third Applicant, who also appeared and who is now an adult, that the Second Applicant, the husband of the First Applicant, had not appeared but the First Applicant informed me that he was busy working and was unable to be here this morning but that she appeared on his behalf.

2.    Ms Juarez, who appeared for the Minister, then advised that on the way to Court she had received an email from a solicitor, being Ms Elena Su, who is not on the record for the Applicants, but indicates in that email to Ms Juarez at 9:20 am this morning that the First Applicant had instructed her that she would be attending the Court in person this morning to withdraw her current Application in a Case. The First and Third Applicant have now informed me that such is their wish, that is, that the Application in a Case be withdrawn, and the First Applicant has indicated that she asks for it to be withdrawn also on behalf of her husband, the Second Applicant, and I note that the Fourth Applicant is a minor. The First Applicant indicates that she also seeks to withdraw the current Application in a Case on the Fourth Applicant’s behalf. In that situation, there is no need to say anything else and accordingly, on the advice from the Applicants that they wish to withdraw their Application in a Case, filed with this Court on 7 March 2019 and which I had by administrative order set down for hearing today, and at their request that the Application in a Case be withdrawn, I hereby dismiss it.

9    In the Second Reinstatement Application, the first applicant sought to reinstate the Substantive Application on the particularised ground that:

All proceedings before the Court in this matter have been affected by fraud on the Applicants and the Court, leading to a miscarriage of justice.

findings of the federal circuit court in the primary proceedings

10    The first applicant claimed before the primary Judge, by way of the Second Reinstatement Application and supporting affidavit filed 10 May 2019, that the fraud on the applicants and the Court arose from the following circumstances:

    On 18 February 2019 the first applicant was told by her former lawyer, Mr Kang, that she need not attend the hearing of the Substantive Application and she could leave the matter “in [his] hands”.

    On 7 March 2019 the first applicant was told by Mr Kang that she should seek to reinstate the Substantive Application at the Registry.

    On 11 April 2019 the first applicant contacted Agape Immigration Pty Ltd (Agape), who gave her detailed advice in relation to the Substantive Application by a letter dated 23 April 2019. On 24 April 2019 a solicitor of that firm, Ms Su, advised her to withdraw the First Reinstatement Application as there was only a small prospect of success.

    At the hearing of the First Reinstatement Application, the first applicant and her daughter did not understand the consequences of withdrawing the First Reinstatement Application. The first applicant’s decision to withdraw was an uninformed one and one made in a “paralysed state of mind”.

11    On 14 May 2019 the primary Judge made a direction that those alleged by the applicants to have committed fraud be identified. The applicants identified Mr Kang, Ms Su and Agape.

12    The primary Judge also ordered that Points of Claim be filed and served having regard to the proper procedure to be followed in respect of allegations of fraud as explained by the High Court in Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165; [2018] HCA 12 at [32]. In Clone the High Court stated that a fresh action will generally be appropriate so that the fraud can be pleaded with particulars, setting out all the facts and circumstances.

13    Points of Claim were filed on 28 May 2019. Amended Points of Claim were filed on 7 June 2019. The primary Judge at [24] observed that neither document properly pleaded a case of fraud. For that reason, on 21 June 2019 at a directions hearing his Honour struck out the amended Points of Claim.

14    His Honour stated that he understood the evidence of the first applicant to be that she had been willing to swear the 7 March 2019 affidavit, in which she blamed her non-appearance at the hearing of the Substantive Application on inadvertence. When she later deposed that her non-appearance was on the advice of Mr Kang, it followed that she must have sworn the 7 March 2019 affidavit knowing her earlier evidence was false. The first applicant blamed Mr Kang for that false reason, claiming that Mr Kang had advised her that she was required to, in effect, lie to the Court to get her case reinstated.

15    Based on the substantive answers and demeanour of the first applicant in the witness box, the primary Judge rejected the suggestion that the first applicant was an “innocent abroad”. His Honour also rejected the applicant’s assertions that she had sworn a false affidavit because Mr Kang had advised her to do so, and did not accept that Mr Kang had told her not to attend the hearing of the Substantive Application.

16    His Honour found at [34] that the first applicant had failed to establish that Mr Kang acted fraudulently with regards to herself, the Minister or the Court. The primary Judge formed the view that the more likely explanation for the applicants’ failed attendance at the Substantive Application was inadvertence as the first applicant initially claimed in her 7 March 2019 affidavit.

17    Nor was his Honour satisfied that the applicants had substantiated fraud on the part of Ms Su or Agape. On the evidence before his Honour, to which his Honour referred at [35]-[37] of the primary judgment, it appeared clear to the primary Judge that Agape had not been retained to appear at the hearing of the First Reinstatement Application. His Honour did not accept that Ms Su, who had given reasonably detailed advice on 23 April 2019 suggesting that the Substantive Application had reasonable prospects of success would then, the following morning, suggest that the applicants withdraw the First Reinstatement Application because the prospects of success were small. The primary Judge considered it more likely that the applicants had decided to pursue alternative migration pathways outlined by Agape in its advice. The demeanour and statements of the first and third applicants during the hearing of 24 April 2019 did not indicate that they were in shock, consternation or paralysis of mind, but rather relieved. The primary Judge therefore concluded that there was a deliberate, clear and conscious decision on the part of the applicants to withdraw the First Reinstatement Application.

18    The primary Judge concluded at [30]-[31] and [42] that it would be appropriate to dismiss the Second Reinstatement Application as:

(1)    there was no pleading or proof of actual fraud on the part of Mr Kang, Ms Su or Agape brought in support of the application; and

(2)    further, there was no allegation of fraud made against the Minister.

19    His Honour also found at [43] that, even if the Second Reinstatement Application was brought pursuant to rule 16.05(2)(c) of the FCC Rules, the finality of litigation stood against allowing withdrawal and dismissal of a reinstatement application and then subsequent revival of the same application.

appeal to the federal court

20    The applicants filed an application for leave to appeal from the Federal Circuit Court decision in DTW16 v Minister for Immigration and Border Protection (No. 2) [2019] FCCA 2212 on 9 August 2019. That leave is required by reason of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as the judgment being appealed against is an interlocutory decision. The grounds of the applicants’ draft notice of appeal are as follows:

1.     The Applicants application to the Federal Circuit Court and the first Application were affected by fraud.

2.     The Federal Circuit Court erred in:

a.     Applying the civil standard of fraud rather than the administrative law standard of fraud.

b.     Failing to recognise that the significant amounts of money paid to Agape Immigration Pty Ltd were for a service greater than the provision of advice.

SUBMISSIONS OF THE PARTIES

21    The applicants submitted, in summary, that:

    Mr Kang is a known “fraudster” who has been convicted of twenty two counts of fraud and misleading conduct in respect of his migration business.

    The authority of SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 is analogous – and relevant – to this case.

    The payment of monies to Agape in the amount of $10,660 was, by reasonable inference, for more than merely advice. The primary Judge erred in failing to recognise the purpose of the significant payment made.

    The applicants never instructed Ms Su that the applicants had decided to withdraw the First Reinstatement Application, contrary to Ms Su’s correspondence to the Minister on 24 April 2019. Rather, the applicants did not understand the implications of withdrawing that application.

    Similarly to EPH17 v Minister for Immigration and Border Protection (2019) 166 ALD 47; [2019] FCA 824, the primary Judge arrived at a conclusion without knowing all the facts.

    By reason of the fraudulent actions of Mr Kang and Agape, all proceedings before the Court had been affected by fraud on the applicants and the Court, leading to a miscarriage of justice.

22    The Minister submitted, in summary:

    The applicants, in essence, repeated arguments and evidence examined and rejected by the primary Judge.

    The primary Judge correctly held that the applicants failed to properly plead the fraud they alleged, and did not prove those allegations to the requisite degree.

    The discretion to set aside an order or judgment under rule 16.05 of the FCC Rules must be exercised judicially, is limited to exceptional circumstances, and must be exercised with caution.

    The primary Judge found that the applicants made a deliberate decision to withdraw the First Reinstatement Application, and that the first applicant was not a credible witness.

CONSIDERATION

23    An application for leave to appeal from an interlocutory decision requires an applicant to demonstrate that there is sufficient doubt as to the correctness of the judgment below to warrant review, and that substantial injustice would be suffered by the applicants if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398; [1991] FCA 655 at [2].

24    The decision of the primary Judge in respect of whether the proceedings should be reinstated was discretionary. It is well-settled from principles decided in House v The King (1936) 55 CLR 499 at 504-505 that the exercise of discretion should not be disturbed merely on the basis that an appeal court might have taken a different course.

25    At the hearing, Mr Turner for the applicants relied on his written submissions, however he also submitted orally, in summary:

    the primary Judge erred in making negative credibility findings in respect of the first applicant in relation to her evidence that she had “inadvertently” failed to attend Court on 19 February 2019 for the hearing of the Substantive Application; and

    the primary Judge erred in striking out the amended Points of Claim because the applicants had not properly pleaded fraud.

26    In relation to his Honour’s credit findings concerning the first applicant, I note the following observations of McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed) in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; [1990] HCA 47 at [28]:

In S.S. Hontestroom v. S.S. Sagaporack, Lord Sumner pointed out that:

"not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone."

Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion": Watt or Thomas v. Thomas.

(footnotes omitted, emphasis added)

27    In this case, it cannot be said that the primary Judge failed to explain his conclusions concerning the credit of the first applicant and her claims of “inadvertence”, or failed to refer to the evidence before him (including his Honour’s view of the demeanour of the first applicant). I note in particular [32]-[34] of the primary judgment. It was open to his Honour at [33] to reject the first applicant’s explanation of “inadvertence” as encompassing her later evidence that Mr Kang had told her she need not attend Court on 19 February 2019.

28    There is nothing in his Honour’s detailed reasons which suggests possible error.

29    In relation to the striking out of the amended Points of Claim by the primary Judge, his Honour’s reasons contained a detailed and thoughtful analysis of relevant legal principles in relation to pleading allegations of fraud, including the recent decision of the High Court in Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165, [2018] HCA 12. As the High Court explained in Clone:

62.    The power to set aside the Supreme Court’s own decision with which Hargrave AJ was concerned was the narrower power that was historically distinct from an appellate court’s powers to set aside orders of a court below and order a new trial. Before that narrower power could be exercised in this case it required a pleading, and proof, of actual fraud. Players’ alternative contention was that even if actual fraud was required, it could still succeed. That contention should be rejected. Fraud needs to be clearly pleaded and proved. It was not. Unsurprisingly, the factual findings of Hargrave AJ and the Full Court did not address, and were not adequate to establish, actual fraud. The appeals must be allowed on the first ground.

(emphasis added)

30    In the proceedings before me, no arguments were put to me identifying how the primary Judge erred in his application of the principles explained in Clone. Detailed analysis and application of those principles can be seen in the reasons of his Honour at [22]-[31] and [35]-[42]. His Honour at [24] for example observed:

24.    Ultimately, Points of Claim were filed on 28 May 2019 (Points of Claim) and were succeeded by Amended Points of Claim filed on 7 June 2019 (Amended Points of Claim). In neither of those documents, apart from “a bare and unparticularized assertion” of fraud in [1] (see: Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 287 per Mason CJ and Gaudron J), was there any reference to or use of words such as “deceit”, “dishonesty”, “wrongful” or “misleading” and, otherwise, no proper pleading at all of a case of fraud. Neither the Points of Claim nor the Amended Points of Claim came anywhere near pleading fraud in accordance with the statement of Lord Millett in the well-known case of Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1…

31    Again, I am unable to identify any aspect of his Honour’s reasoning which gives rise to sufficient doubt to warrant reconsideration.

32    Overall:

    The findings of fact by his Honour concerning the evidence of the first applicant were open to his Honour.

    The primary Judge found that the applicants had failed to properly plead the fraud they alleged. The applicants have not substantiated reason to doubt the correctness of these findings of his Honour.

    The primary Judge found that the allegations of fraud against Ms Su and Agape were not proven, and explained at [35]-[42] the reasons for that conclusion.

    No error is apparent in the statement of principle by his Honour at [43] concerning the operation of r 16.05(2)(c) of the FCC Rules.

33    The appropriate order is to dismiss the application for leave to appeal from the dismissal of the Second Reinstatement Application.

34    Costs should follow the event.

Associate:

Dated:    18 March 2020

SCHEDULE OF PARTIES