Awon v Minister for Immigration
[2015] FCCA 621
•24 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWON v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 621 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – Tribunal found it did not have jurisdiction to consider application for review of delegate’s decision to refuse to grant applicant Student (Temporary) (Class TU) visa – application to Tribunal lodged outside of prescribed time – whether application lodged outside prescribed time was owing to a fraud on the Tribunal – whether the migration agent adhered to the Code of Conduct for Registered Migration Agents – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.314(2), 347(1)(b), 348, 412, 494B, 494C Migration Regulations 1994 (Cth), rr.2.16(3), 4.10 |
| Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559 Han v Minister for Immigration and Multicultural Affairs (2000) 103 FCR 517 Jalagam v Minister for Immigration and Citizenship [2009] FCA 197 Jones v Dunkel (1959) 101 CLR 298 Keo v Minister for Immigration and Citizenship & Anor (2009) 177 FCR 479 Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303 Minister for Immigration and Citizenship v SZLIX & Anor (2008) 245 ALR 501 Minister for Immigration and Multicultural Affairs v SZFDE & Anor (2006) 154 FCR 365 Plaintiff M70/2011vMinister for Immigration and Citizenship & Anor (2011) 244 CLR 144 Singh & Anor v Minister for Immigration and Citizenship & Anor (2011) 190 FCR 552 SZBII & Anor v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1477 SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189 SZMDT v Minister for Immigration & Anor [2010] FMCA 380 SZOVP v Minister for Immigration & Anor (No.2) [2011] FMCA 442 SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 SZQVV v Minister for Immigration and Citizenship & Anor (2012) 130 ALD 472 SZSJA v Minister for Immigration & Border Protection & Anor (2013) 308 ALR 266 SZSXT v Minister for Immigration and Border Protection & Anor (2014) 222 FCR 73 | ||
| Applicant: | MUHAMMAD AWON | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1783 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 18 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Manning Lawyers |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the First Respondent: | DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application filed 1 August 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1783 of 2013
| MUHAMMAD AWON |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 1 August 2013 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking relief in the form of constitutional writs against a decision of the Migration Review Tribunal (the “Tribunal”) dated 27 June 2013. The Tribunal found that it did not have jurisdiction to deal with an application lodged by the applicant on 7 February 2013 because the application was lodged outside of the prescribed time period.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a male citizen of Pakistan. On 22 November 2012 he applied in Australia for a Student visa (CB 1). On 11 January 2013, a delegate of the Minister for Immigration and Border Protection (at the time of the visa application the “Minister for Immigration and Citizenship”) (the “Minister”) refused the applicant's student visa application. The delegate's decision was sent by email on 11 January 2013 to the email address of the applicant’s then migration agent at '[email protected]’ (CB 60). This was the email address provided in the ‘Form 956’ submitted to the Minister’s department on 21 December 2012 (CB 57).
On 25 January 2013 the applicant attended the office of his migration agent, Ms Jacqui My Hui Yang (“Ms Yang”), to discuss the decision. The applicant claims that he paid Ms Yang $2,200 and that she advised him that “you have 28 days to lodge your application, I will do it for you”.
An application for review of the delegate's decision was lodged with the Tribunal on 7 February 2013 Ms Yang (CB 82).
On 23 May 2013 the Tribunal sent Ms Yang an Invitation to Comment on the Validity of Application for Review. (CB 117). The Invitation to Comment indicated:
I am of the view that your application in not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision…
If you wish to make any comment on whether a valid application has been made, you are invited to do so, in writing, within 14 days of receiving this invitation.
The applicant claims that on 16 June 2013 he attended the office of Ms Yang to discuss the Invitation to Comment, where Ms Yang allegedly told the applicant “[t]here is nothing we can do, so don’t respond to the invitation”.
The Tribunal made a decision on 27 June 2013 and held that it did not have jurisdiction because the application was lodged out of time (CB 122).
The Tribunal’s Decision
The Tribunal observed, in accordance with s.347(1)(b) of the Migration Act and reg.4.10 of the Migration Regulations 1994 (the “Migration Regulations”), that the application for review of the delegate’s decision had to be made within 21 days after the applicant was notified of the decision (CB 122 at [3]).
The Tribunal found that, in accordance with s.494C of the Migration Act, the applicant was taken to have been notified of the decision on 11 January 2013. The Tribunal then held that the prescribed period within which the review application could be made ended on 1 February 2013. As the application for review was not received until 7 February 2013, the Tribunal found that it had no jurisdiction (CB 122 at [7]).
Current Proceedings
The application filed on 1 August 2013 pleads the following single ground of review:
1. The Tribunal misapplied the law.
Particulars
a. The Tribunal's jurisdiction was affected by fraud.
b. The fraud was inflicted on the Tribunal by the Applicant's agent in his visa application.
c. Fraud unravels everything, here depriving the Tribunal of its jurisdiction in this matter.
d. The only way that the Applicant can be afforded justice in this matter is for a writ of mandamus to be directed to the Tribunal requiring it to review the decision.
The issues before the Tribunal in this case related solely to its jurisdiction. The jurisdictional questions were:
a)When was the applicant notified of the delegate’s decision; and
b)When was the applicant’s application lodged with the Tribunal?
Evidence before the Court
The evidence before the Court is as follows:
a)The applicant relies upon the affidavit of himself, Muhammad Awon, sworn 2 June 2014 and filed 18 July 2014 (the “Awon Affidavit”). The applicant does not rely on [8] of the Awon Affidavit;
b)The Court Book (“CB”), marked as Exhibit “A-1”; and
c)The Minister tendered a bundle of documents, produced from the file of Ms Yang, marked “Exhibit “A-2” (the “Yang Bundle”).
Applicant’s Submissions
The applicant alleges that he went to the office of Ms Yang to discuss the Tribunal’s decision on 1 July 2013. The applicant claims that Ms Yang told him that he had three options, being to marry an Australian, to go to a remote area to work or to stay in Australia illegally. The applicant also claims that at that meeting that Ms Yang refunded the applicant $500 in cash. Approximately six weeks later the applicant claims that a further $1,700 was deposited into his account.
The application that is before the Court was filed on 1 August 2013 and the applicant contends that the Tribunal’s decision was vitiated by fraud. The applicant notes that the authorities establish that fraud “unravels everything” SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189 (“SZFDE HCA”) where the High Court held per curiam at [14] and [22]:
14. … This is expressed in the oft-repeated proposition that whilst on one hand fraud may be infinite, on the other hand “fraud unravels everything”.
…
22. … In the present case, the only remedy that would be of real utility to the appellants is an order that provides them with the opportunity to press their claims to a protection visa in a fair hearing conducted according to law.
The applicant claims that the fraud occasioned by Ms Yang was two-fold:
a)By lodging the application after the prescribed time and claiming a financial reward for doing so; and
b)By advising the applicant that he should not respond to the Invitation to Comment issued by the Tribunal on 23 May 2013 (CB 116-117)
The applicant refers the Court to the Full Federal Court decision in SZSJA v Minister for Immigration & Border Protection & Anor (2013) 308 ALR 266 where the Court stated at [63]-[64]:
63. It will be a question for the Federal Circuit Court whether the person who signed the Response to Hearing Invitation form should, in terms of dishonesty or fraud, be judged by the standards of ordinary decent migration agents…
64. Section 314(2) of the Migration Act provides that a registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct. It follows, in our opinion, that relevant to but not determinative of the standards of ordinary decent migration agents are the terms of the Code of Conduct for Registered Migration Agents, particularly that part dealing with the making of statements which the agent knows or believes to be misleading or inaccurate. Similarly, if the agent is found to have acted without the authority of the appellant it may be relevant to consider as going to the standards of ordinary decent migration agents whether or not the agent may have contravened any statutory provisions…
The applicant contends that if a Registered Migration Agent acts outside the standard, either expressed in the Code of Conduct or otherwise expected of ordinary decent migration agents for reward, it can amount to fraud. The applicant contends that if such conduct affects the jurisdiction of the Tribunal it can amount to fraud on the Tribunal.
The applicant submits that the actions of Ms Yang amounted to fraud on the Tribunal, and the applicant is entitled to the relief sought.
Minister’s Submissions
The Minister contends these questions are quintessentially, with respect, jurisdictional facts. The Tribunal’s decision-making with respect to those two facts determines whether the Tribunal had jurisdiction. The Tribunal’s decision as to dates of those two events can be reviewed in this Court on their merits because they are jurisdictional facts: Plaintiff M70/2011 vMinister for Immigration and Citizenship & Anor (2011) 244 CLR 144.
In this case, the dates upon which the two key events occurred are not in dispute. Given this, the inescapable conclusion must be the Tribunal’s factual conclusion as to those dates could not be in any way affected by fraud.
Even if the applicant could establish that his migration agent was fraudulent in lodging his application late (which is highly doubtful), that fraud could not have affected the Tribunal’s factual determination as to when his application was lodged with the Tribunal. The doctrine of migration agent fraud only operates when it can be shown that the fraud has in some way affected the Tribunal’s discharge of its decision making functions: SZFDE HCA at [47]-[53]; Minister for Immigration and Citizenship v SZLIX & Anor (2008) 245 ALR 501 at [20] and [33]; Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; Jalagam v Minister for Immigration and Citizenship [2009] FCA 197.
In this case, the Tribunal lacked jurisdiction because the application was lodged out of time and any fraud committed by the migration agent cannot operate so as to give the Tribunal jurisdiction it does not have under the Migration Act; see Singh & Anor v Minister for Immigration and Citizenship & Anor (2011) 190 FCR 552 at [48]-[49].
Issues before the hearing
On 4 June 2014, an affidavit of Ada Oi-Yee Wong was affirmed and filed (the “Wong Affidavit”). The affidavit outlines the events that occurred before the hearing, including the applicant‘s representative, Mr Turner, proposing a draft affidavit of the applicant which was outside the timetabled schedule of evidence.
Ms Wong, in her affidavit, also details her attempts to contact the former migration agent of the applicant, Ms Yang, and the request that she provide her file. Contained at Annexures “B” and “C” are the emails sent between Ms Yang and Ms Wong in regards to Ms Yang providing a copy of her file.
On 4 June 2014 the solicitor for the Minister, Ms Wong, filed a subpoena requesting that Ms Yang produce “all written and electronic files, recorded documents and in relation to Mr Muhammad Awon (DOB: 13.06.1987)”.
On 6 June 2014, Ms Yang filed a “Notice of Objection – Subpoena”. Ms Yang identified her obligation to maintain client confidentiality as a Migration Agent as the basis of the objection to the subpoena.
On 10 June 2014 the matter was listed before District Registrar Wall and the following orders were made:
1. (a) Leave be granted to the parties to inspect in the Registry the documents produced in accordance with the Subpoena for Production addressed to Jacqui M Yang (S1).
(b) Leave also be granted to the solicitors for the parties to uplift the documents, for the purposes of inspection and copying, on the following conditions:
(i) Where the documents are originals, the legal representative for the party is to provide to the proper officer of the Registry a letter of consent from the person to whom the subpoena is addressed.
(ii) The documents not leave the custody of the solicitor, or counsel instructed by the solicitor.
(iii) The documents be returned to the Registry in the same condition, order and packaging as when uplifted.
(iv) The documents be returned promptly and when an officer of the Registry so requests.
…
The matter was subsequently listed for hearing before me on 18 July 2014. On 3 July 2014, Ms Wong contacted chambers requesting that the matter be set down for further directions, as per Order 11 of the consent orders dated 27 August 2013, granting liberty to apply. The purpose of that directions hearing was to seek an order that Ms Jacqui Yang be permitted to appear by telephone or video-link for cross-examination at the final hearing. I made the following order:
1. If Jacqui My Hui Yang is required for cross-examination during the substantive hearing on 18 July 2014, she be made available to appear in person at 2pm in court 6D, John Maddison Tower, 88 Goulburn Street, Sydney.
Ultimately, Ms Yang was not required to attend Court for cross-examination.
Hearing before the Court
At the hearing, Mr Turner, appearing for the applicant, indicated his case was that the Tribunal’s decision was affected by fraud on it on the part of the then migration agent. It is not in dispute the application was lodged out of time.
The applicant was called as a witness and indicated that he wished to rely upon the Awon Affidavit, save for [8]. Paragraph [8] stated:
8. She [Ms Yang] gave me $500 cash at that meeting and only after I insisted she transferred $1,700 to my account after approximately 6 months.
In the witness box the applicant explained that he was very confused at the time he received the Invitation to Comment from the Tribunal. He stated that at that time he no longer wanted the assistance of Ms Yang and asked for a refund. Mr Awon explained that he received a refund to his bank account, which initially he thought was a refund from Ms Yang, but now realises that it was the Tribunal refund that he had received in the value of $1,540.00.
The applicant was cross-examined by Ms Francois, for the Minister, where she took the applicant to the Yang Bundle. Ms Francois took the applicant to p.20 of the Yang Bundle, which is an email from Ms Yang to the applicant. The applicant acknowledged that he had received that email and that he had opened the document and read the attachments, being a letter from the Department and the Tribunal’s Decision Record (located at p. 57 and 62 of the Yang Bundle respectively).
Ms Francois took the applicant to [2] of the Awon Affidavit, where the applicant recounted a conversation that occurred between Ms Yang and himself:
2. On or about 25 January 2013, I attended the office of my Migration Agent, Ms Jacqui My Hui Yang to discuss the refusal of my student visa application. To the best of my recollection, the following conversation took place:
I said: “What can we do about it”
She said: “There is a good possibility to win the case, all we need to do is gather the documents related to the refusal and provide the fee.”
I said: “ How much time do I have to gather the information”
She said: “You have 28 days from the date of the decision”.
Ms Francois noted and confirmed with the applicant that he was informed by Ms Yang that “[t]here is a good possibility to win the case…”, but that it was conditional on the applicant passing an IELTS (International English Language Testing System) test.
Ms Francois then took the applicant to p.31 of the Yang Bundle which is the “Invitation to Comment on Validity of Application for Review”, dated 23 May 2013. Ms Francois questioned the applicant that it was possible that he saw this document before 5 June 2013, to which the applicant replied that he did not.
Ms Francois drew the applicant’s attention to p.57 of the Yang Bundle, being a letter of 11 January 2013, notifying the refusal of the application, where at the bottom of the page it states:
…An application for review of this decision must be given to the MRT within 21 calendar days after the day on which you are taken to have received this letter.
Ms Francois also noted at [3] of the Awon Affidavit where he stated:
3. I then paid hr the fee of $2,200 which we had agreed when I made the appointment and provided all the documents she requested within 2 days.
In his earlier evidence, the applicant argued that he did not receive the whole refund from Ms Yang, but that he received $500 in cash from Ms Yang and later $1,700 was transferred into his bank account, being the refund from the Tribunal. Ms Francois questioned the applicant’s claim that he did not receive the “whole” refund. She argued that the amount the applicant claimed he paid to Ms Yang was $2,200 and that was the amount that was subsequently returned to him. Ms Francois argued that the applicant has not provided any other evidence of any other payments made to Ms Yang and the following exchange occurred:
Ms Francois: So do you accept that your recollection that she said, “I will not refund all the money as I did some effort to prepare the case,” might be wrong?
Mr Awon: Yes, but although I don’t have the evidence. But the thing is I don’t have the evidence but I’m sure because I knew that. I can – I can flashback and I knew that she took some money for that. I don’t have the evidence.
(Transcript, p. 9.29-33)
Mr Turner next addressed the Court on what the appropriate test for fraud on the Tribunal which has been determined by the courts and then proposed to take the Court to the conduct of Ms Yang.
Mr Turner took the Court to the paragraphs in SZFDE HCA, including those reproduced above at [15], and to [32] in that decision where the High Court stated:
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.
(footnote omitted)
Mr Turner argues that SZFDE HCA is a case about a fraud perpetuated on the Tribunal after an application was lodged, whereas in the current matter it is argued that a fraud is upon the Tribunal before an application is lodged. Mr Turner then took the Court to SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472 (“SZQVV Interlocutory”) which is a decision of Greenwood J who considered an interlocutory application for an extension of time to file an application in the Federal Court. At [46] his Honour stated:
46. The combination of conduct on the part of the person assisting which arguably contravenes these provisions of the Migration Act coupled with misrepresentations arguably dishonestly made as to the lodging of the review application elevates the matter, accepting the applicant’s version of the facts for present purposes, beyond mere promises or bad or negligent advice or simply some other class of unfortunate mishap.
47. The factual allegations made by the applicant seem to arguably suggest dishonesty, and conduct coupled with arguable illegality…
Then at [49] in SZQVV Interlocutory Greenwood J stated at [49]:
49. …The applicant relied upon the dishonest representations (possibly made for reward) of the assisting person which subverted the applicant from lodging an application for review within time. The evidence suggests that the applicant intended to lodge an application for review and intended to seek, through that review, a merits review of the delegate’s decision refusing the grant of a protection visa. He was not given an opportunity to open the Tribunal’s jurisdictional door by reason of third party dishonest conduct. Thus, the applicant has been denied an opportunity to press, explore or review his claims to a protection visa arising out of a contended well-founded fear of persecution for a Convention reason, in a fair hearing conducted according to law.
Greenwood J in SZQVV Interlocutory then continued at [54], [57]-[58]:
54. In this case, the applicant’s participation in a decision-making process has been affected by the material dishonesty of another. It has caused the applicant to be prevented from engaging with that process as he would have wished, and sought to do, in reliance upon what ultimately turned out to be the arguably dishonest conduct of the assisting person…
57. One such construction of s 412 is that in circumstances where an applicant has been prevented from invoking a review of an RRT-reviewable decision due to the material dishonesty (that is conduct other than bad or negligent advice or some other mishap) of a person which has prevented that person from participating in the decision-making process before the Tribunal contemplated by Pt 7, the Tribunal may treat the application made or given to the Tribunal outside the time required by s 412(1)(b) as having been regularly made, if satisfied, for the purposes of s 414, that the failure to lodge within the prescribed time as required by s 412 was due to the material dishonesty of another which has had the effect of conveying a false impression of the true fact to the decision-maker of the jurisdictional fact as an anterior question for the Tribunal under s 414 to the discharge of the review function.
58. The conduct of the relevant person (that is, the dishonest conduct of a third party) is 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. Although, unlike SZFDE, the Tribunal has not been seized of decision-making in discharge of the review function, the statutory scheme for merits review before the Tribunal of administrative decisions refusing an applicant the grant of a protection visa was entirely frustrated by the arguably dishonest conduct of the third party adviser. In that sense, the conduct was a fraud on the Tribunal. It was not a fraud on the Tribunal in the SZFDE sense of subverting the exercise of a power within the expressly enlivened jurisdiction of the Tribunal in the course of the Tribunal discharging imperative functions. It was a fraud on the Tribunal in the sense that it prevented the Tribunal from becoming engaged in the exercise of its functions with the particular applicant by reason of the conduct of the third person.
Mr Turner argued that even though Greenwood J was considering an interlocutory application which, even at its lowest, contained persuasive argument. In any event, Greenwood J did extend time and the matter went before Flick J in SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 (“SZQVV Appeal”). At [15] in SZQVV Appeal Flick J stated:
15. The substance of these assertions equally disturbed Greenwood J. His Honour characterised the “appellant’s contended arguable case” as “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].
Then at [19] of SZQVV Appeal Flick J continued:
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.
Mr Turner contends that in the context of Flick J’s decision, which was decided against the appellant in that case, it would render that to be obiter. However, he argues that it is a persuasive argument nonetheless.
Mr Turner argued that the other element of the case is that the conduct complained of was perpetuated by a registered migration agent. Mr Turner referred the Court to SZSJA (supra) at [63]-[64] (reproduced at [17] above). At s.314(2) of the Migration Act, it states:
(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
Mr Turner provided the Court with a copy of the relevant provisions of the Code of Conduct for registered migration agents (the “Code of Conduct”). At rule 1.10 of the Code of Conduct, it states:
The aims of the Code are:
(a) to establish a proper standard for the conduct of a registered migration agent;
(b) to set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code, …
(ii) knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;…
Rule 1.12 of the Code of Conduct it states:
1.12 However, the Code imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent’s client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.
Mr Turner also referred the Court to rules 2.1, 2.3, 2.4, 2.17 and 2.18 of the Code of Conduct which state:
2.1 A registered migration agent must always:
(a) act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client;..
2.3 A registered migration agent’s professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
…
2.4 A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
…
2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
(a) must not encourage the client to lodge the application; and
(b) must advise the client in writing that, in the agent’s opinion, the application is vexatious or grossly unfounded; and
(c) if the client still wishes to lodge the application - must obtain written acknowledgment from the client of the advice given under paragraph (b). …
2.18 A registered migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines…
Mr Turner contends that Ms Yang is in breach of most, if not all, of the provisions aforementioned and, therefore, is in breach of s.314(2) of the Migration Act.
Mr Turner took the Court to p.53 of the Yang Bundle which is an advice letter from Ms Yang to the applicant dated 7 February 2013. Mr Turner notes that in the letter Ms Yang purports to “subscribe to the Migration Agents Code of Conduct”. Mr Turner submits that not only does Ms Yang have a legal obligation to follow the Code of Conduct, she has also stated she will follow the Code of Conduct.
Mr Turner argued that Ms Yang, a registered migration agent, blatantly told the applicant the wrong date, unlawfully. The unlawfulness of that conduct by Ms Yang it can elevate that negligence to fraud. Mr Turner contends that Ms Yang’s comment on the fact that the application had been lodged late was a suggestion to do nothing. Mr Turner submits that this act defended Ms Yang’s position and defended her against any claim that she had caused any error. Mr Turner contends that Ms Yang ought to have referred the applicant for appropriate legal advice and by not doing so the applicant has been denied the opportunity of putting any submissions to the Tribunal.
Mr Francois, in response to the arguments of Mr Turner, took the Court through the Yang Bundle in reverse chronological order. Ms Francois argued that in respect of the documents located in the Yang Bundle, the highest the applicant’s case can go is that Ms Yang mistakenly told the applicant the wrong time period for the lodgement of the application to the Tribunal. Ms Francois argued that there was no fraudulent intention and none could be discerned from the circumstances of this case. The only claim that can be made against Ms Yang is that in advising the applicant the wrong time frame of 28 days, instead of 21 days, to lodge the review application to the Tribunal, she fell short of the standard requirement of the Code of Conduct for Registered Migration Agents.
Ms Francois argued that the Court should not accept a submission that a negligent failure to comply with the Code of Conduct is unlawful behaviour. She submitted that if there was an allegation of unlawfulness then the following questions need to be asked, what was the intent element and what was the physical element? Ms Francois submitted that there is nothing to suggest that Ms Yang intentionally failed to comply with the Code of Conduct.
Ms Francois argued that insofar as Mr Turner took the Court to SZSJA (supra) at [62] of that judgment, their Honours held that another question to be asked is whether an agent should be taken to have been acting in the applicant’s best interests in placing the applicant’s signature on the form without authority. Ms Francois argues that this is far removed from the current case, as there is no purported signing of documents on the applicant’s behalf. At [62] of that judgment, their Honours state:
62. …Does this preclude a finding of fraud against the appellant? Does it preclude a finding of fraud against the Tribunal? It will be necessary for the Federal Circuit Court to make findings as to the agent’s state of mind.
(emphasis added)
Ms Francois argued that from the evidence that is before the Court, the Court needs to be satisfied that the agent did have a fraudulent intent in doing these acts. Ms Francois took the Court to [64] of SZSJA (supra) where their Honours stated:
64. Section 314(2) of the Migration Act provides that a registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct…
Ms Francois argued that the relevant standards of ordinary and decent migration agents are the terms of the Code of Conduct, specifically when making statements which the migration agent knows or believes to be misleading or inaccurate. In SZSJA (supra) the actions of the migration agent signing the applicant’s signature, with no purported authority, is an act that amounts to fraud. However, Ms Francois argues that SZSJA (supra) is far removed from the current case as the migration agent has clearly given the wrong time period for lodging an application, but at the same time has given the applicant the document from which the correct answer can be discerned. Ms Francois submits that Ms Yang has no fraudulent intent and that she plainly made a mistake.
Ms Francois contends that the second fraud alleged to have been committed by Ms Yang is that she told the applicant not to make any submissions to the Tribunal. Ms Francois argues that the advice is consistent with the clear advice she gave to the applicant that there was a strict time limit applied. Ms Francois argues that this was advice was not given to cover her conduct, nonetheless, from the time Ms Yang decided to refund the money, being 4 June 2013, the applicant had time to seek advice elsewhere.
Ms Francois referred the Court to of SZSXT v Minister for Immigration and Border Protection & Anor (2014) 222 FCR 73 (supra) at [53]-[56]. Ms Francois argued that there is nothing in the correctness of Greenwood J’s construction of s.412 of the Migration Act in those paragraphs (see [44] above). Ms Francois contends that what the Court is doing is agreeing with Greenwood J’s analysis of the facts which could arguably give rise to a finding of fraud and does not deal with the question of construction.
Ms Francois also referred to the two decisions in SZQVV Interlocutory and SZQVV Appeal and contends that the decisions of Greenwood and Flick JJ are obiter and lacks the rigorous analysis of the case.
Legislative Scheme conferring jurisdiction on the Tribunal
Section 348 of the Migration Act confers jurisdiction on the Tribunal and relevantly provides “if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.”
It is uncontroversial that the delegate’s decision in this case was a Tribunal-reviewable decision within the meaning of s.338(2) of the Migration Act. The issue is, therefore, whether an “application” was “properly made under section 347” of the Migration Act thus enlivening the Tribunal’s jurisdiction.
Section 347 of the Migration Act relevantly provides as follows:
“(1) An application for review of an MRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT-reviewable decision is covered by subsection 388(2), (3), (3A), (4) or (7A)-- 28 days after the notification of the decision; or
…
and
(c) be accompanied by the prescribed fee (if any).”
(emphasis added)
Regulation 4.10 of the Migration Regulations prescribes the relevant period during which an application for review of an MRT-reviewable decision can be lodged as follows:
“(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:
(a) if the MRT-reviewable decision is mentioned in subsection 338 (2) or (7A) of the Act -- starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or ….”
(emphasis added)
There is no provision for the granting for an extension of time.
Regulation 2.16(3) of the Migration Regulations provides that:
“[T]he Minster must notify an applicant of a decision to refuse to grant a visa by one the methods specified in section 494B of the Act.”
Section 494B of the Migration Act relevantly provides:
“Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient ); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…
Transmission by fax, e-mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e-mail; or
(c) other electronic means;
to:
(d) the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor--the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister..”
Section 494C of the Migration Act then relevantly deems receipt of documents notified in accordance with s.494B as follows:
“(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Transmission by fax, e-mail or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
(6) Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.”
It is well-established that an application received outside the prescribed time limit is not a valid application and one that the Tribunal does not have jurisdiction to review: see Keo v Minister for Immigration and Citizenship & Anor (2009) 177 FCR 479; Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303. The time limits imposed have been described as “stringent”: see Han v Minister for Immigration and Multicultural Affairs (2000) 103 FCR 517 at [21] per Sackville J.
Consideration
The central issue before the Court is the effect of Ms Yang’s actions upon the Tribunal's decision-making process. In accordance with s.347(1)(b) of the Migration Act and Reg. 4.10 of the Migration Regulations an application for review of the delegate’s decision had to be made within 21 days after the applicant was notified of the decision. Relevantly, the Tribunal found at [7]:
7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 11 January 2013. Therefore the prescribed period within which the review application could be made ended on 1 February 2013. As the application for review was not received by the Tribunal until 7 February 2013 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
(CB 123)
It is well established that an application received outside the prescribed time limit, in this case being 21 days, is not a valid application and one that the Tribunal does not have jurisdiction to review: Keo v Minister for Immigration and Citizenship (supra) and Lee v Minister for Immigration and Multicultural Affairs (supra). Consequently, the Tribunal did not have jurisdiction to hear the matter as the application was lodged outside the time of the prescribed period: s.347 of the Migration Act and reg.4.10 of the Migration Regulations.
The question to then be tested is whether the actions and advice of Ms Yang equate to fraud on the Tribunal. In Minister for Immigration & Multicultural Affairs v SZFDE & Anor (2006) 154 FCR 365 (“SZFDE FCA”) his Honour French J (as he then was) explained fraud as follows at [104]:
104. Fraud involves dishonesty. It is also rightly seen as the harbinger of unfairness. A decision obtained by fraud is unfairly obtained. A right, immunity or privilege denied or lost on account of fraud is unfairly denied or lost. So an administrative decision making process affected by fraud may, in some cases at least, be vitiated on account of unfairness arising from the fraud. In this case non-appearance before the Tribunal on the basis of fraudulent advice, does not seem to give rise to procedural unfairness which would support certiorari. Resort must be had to the different principle arising in cases of fraud which is sometimes expressed by the statement that ‘fraud vitiates everything’.
On appeal to the High Court in SZFDE HCA, their Honours Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ noted the facts of that matter at [3] as follows:
3. The ground upon which the appellants sought relief in the Federal Magistrates Court was that the decision of the Tribunal was affected by the fraud of Mr Fahmi Hussain. He was said to have represented himself to the appellants to be a solicitor and a migration agent licensed in accordance with Pt 3 (ss275-332H) of the Migration Act 1958 (Cth) (“the Act”). The first appellant paid Mr Hussain a total of $8,400 (and lent him $5,000) for him to act for the family with respect to the Tribunal proceeding. She followed his advice, in particular, not to attend the Tribunal hearing for which s 425 of the Act provides.
Then at [7] of SZFDE HCA their Honours found:
7. …there was in this case fraud in the necessary sense which was perpetrated “on” the Tribunal, as well as upon the appellants. The result was that, in law, the jurisdiction of the Tribunal remained unexercised and mandamus and certiorari were appropriately ordered by the Federal Magistrates Court.
Relevantly, their Honours held at [47]-[55] of SZFDE HCA:
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, 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."
50. Reference has been made earlier in these reasons to the submission for the Minister that any fraud perpetrated on the appellants was not a fraud "on" the Tribunal. Further, as noted above, Allsop J characterised the complaints of the appellants as not about the process but about their erstwhile agent and concluded that neither the decision nor the statutory process "was corrupted by fraud". However, as in other areas of legal debate, including questions of federal legislative power under the Constitution itself, to say of a law or state of affairs that it bears one legal character does not necessarily deny it a second legal character which is of decisive significance.
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.
52. The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj.
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.
54. Were the matter litigated in the original jurisdiction of this Court, the consequence would be that mandamus would lie under s 75(v) of the Constitution to compel the Tribunal to redetermine the review application according to law. In support of that remedy under s 75(v), certiorari would lie in respect of the purported decision of the Tribunal. By reason of the terms of the conferral of jurisdiction upon the Federal Magistrates Court it was in a corresponding position.
55. The order of the Federal Magistrates Court granting orders in the nature of certiorari to quash, and mandamus requiring the Tribunal to redetermine according to law, the review of the decision of the delegate were properly made. That redetermination according to law will include the Tribunal giving the appellants, pursuant to s 425, a fresh invitation to appear before the Tribunal.
(footnotes omitted)
Her Honour Barnes FM (as she was then) in SZMDT v Minister for Immigration & Anor [2010] FMCA 380 considered the principles established by the High Court in SZFDE HCA.At [136] therein Barnes FM stated:
136. In addition to the need to establish fraud on or in relation to the applicant (not mere negligence or bad advice), there must also be fraud “on” the Tribunal in the sense of fraud that affects the Tribunal’s Part 7 decision-making process. In SZFDE the appellants did not attend the Tribunal hearing because of their agent’s fraud. It was in those circumstances that the High Court found that such fraud had the “immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants” and that “in truth, by reason of the fraud of [the migration agent], [the Tribunal] was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”. In that sense there could be said to be a practice of fraud “on” the Tribunal (SZFDE at [49] and [51]).
Barnes FM continued at [138] of SZMDT (supra):
138. Fraud must be “distinctly pleaded and proved” (SZFDE at [15]). As the High Court observed in SZDFE at [38], a “finding of fraud is a serious matter” and as the Full Court of the Federal Court noted in Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501; [2008] FCAFC 17 at [33] the court must be satisfied that serious allegations of fraudulent conduct have been proved to the level of satisfaction required by Briginshaw v Briginshaw and Another (1938) 60 CLR 336; [1938] HCA 34 (at 363 and 368).
The distinction between SZFDE HCA and the current matter is that in the current matter the fraud alleged was perpetuated before the (invalid) application had been lodged. The applicant argues that Ms Yang had a statutory obligation (in the form of s.314(2) of the Migration Act) to conduct herself in accordance with the prescribed Code of Conduct. The Minister argues that Ms Yang mistakenly told the applicant the wrong time period for the lodgement of the application and no fraudulent intention can be discerned from the circumstances of this case.
Barnes FM in SZMDT (supra) gave an analysis of a number of cases where fraud on behalf of the migration agent is alleged at [140]-[143]. Significant to the current matter is [143] of SZMDT (supra) where her Honour noted:
143. There must also be a causative relationship between the fraud and the stultification or frustration of the legislative scheme governing the Tribunal’s procedures. In Jalagam v Minister for Immigration & Citizenship [2009] FCA 197 it was alleged that a migration agent’s failure to communicate a delegate’s decision speedily amounted to fraud. As Edmonds J stated (at [42]):
Plainly, SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being ‘disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review’: SZFDE at [51]; such that its decision was, in law, no decision at all: (SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour’s finding, that there was some dishonesty by anyone at Tan & Tan) would not have made any difference. There would be no link between the suggested ‘fraud’ and the Tribunal’s decision-making process: SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement.
Pertinently at [144] of SZMDT (supra) Barnes FM stated:
144. The issue “should be resolved after close attention to the nature, scope and purpose of the particular system of review by the Tribunal which the Act establishes and the place in that system of registered migration agents. Any application of a principle that “fraud unravels everything”, requires consideration first of that which is to be “unravelled,” and secondly of what amounts to “fraud” in the particular context. It then is necessary to identify the available curial remedy to effect the “unravelling”” (SZFDE at [29]). As French J had observed in the Full Court of the Federal Court at [74], a finding of fraud should specify “what was said that was fraudulent, how it was fraudulent, and how it was acted upon” (see the High Court in SZFDE at [41]).
The Court needs to be satisfied that the migration agent did have a fraudulent intent in providing the advice. In SZSJA (supra) their Honours stated “[i]t will be necessary for the Federal Circuit Court to make findings as to the agent’s state of mind.” In SZBII & Anor v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1477 his Honour Cowdroy J, in determining whether fraud by the migration agent could give rise to a jurisdictional error, found at [28]:
28. In SZFDE French J dissented, finding that the frauddid affect the decision because it resulted in the non-appearance of the appellant before the Tribunal… French J’s decision recognises the possibility that where, through no fault of their own, an appellant is deprived of a hearing, circumstances may exist to vitiate the decision despite compliance with the requirements of the statutory scheme. This possibility was also recognised by the Full Court in SZFML. It is apparent that the facts in each case will be critical in determining whether consent by the appellant to the agent in fact existed.
(emphasis added)
Mr Turner argues that the fraud occasioned by Ms Yang was two-fold, in that she first advised the applicant the wrong time period within which he had to lodge the application and second she advised the applicant that he should not respond to the Invitation to Comment. Mr Turner argued that Ms Yang unlawfully told the applicant the wrong timeframe and the unlawfulness of this advice can elevate that negligence to fraud. It is also argued that Ms Yang’s advice to the applicant to not to respond to the Invitation to Comment defended her claim that she had caused an error.
Ms Francois argues that there is no fraudulent intention on behalf of Ms Yang and that the only claim that can be discerned is that she advised the applicant of the wrong time frame of 28 days, instead of 21 days, to lodge the review application. Ms Francois argued that the second limb of Ms Yang’s action alleged advising the applicant to not make submissions to the Tribunal is consistent with the clear advice she gave to the applicant that there was a strict time limit applied.
At p.20 of the Yang Bundle is an email from Ms Yang to the applicant dated 11 January 2013, which notified the applicant of the delegate’s decision to refuse his Student visa. Attached to that email are two “pdf” format documents, being the delegate’s notification and the delegate’s decision. In the body of the email Ms Yang wrote the following:
Your case officer has now made a decision to refuse your student visa application. Please find attached the decision and notification for your records.
You now have 2 courses of action:
1) Make arrangements to depart Australia within28 days, as your bridging visa will cease thereafter. If you remain in Australia after 28 days, then you will become an unlawful non-citizen and may be subject to compliance action.
2) Make an application for review to the Migration Review Tribunal within 28 days. Note this is a strict time limit and the correct form and fee must be provided in order to make a valid MRT application. If you fail to apply to the MRT in time, then you will become an unlawful non-citizen and may be subject to compliance action if you continue to remain in Australia. If you do not wish to apply to the MRT for review, then as stated above, you must make arrangement to depart within 28 days. There are serious consequences if you become an unlawful non-citizen.
If you wish to discuss this matter further, then please contact me as a matter of urgency. I have also sent a text message to your phone as you have requested that I do not call during your work hours. As you have now been contacted both via text and email, I will not be sending through any further reminders.
If I do not hear from you within 28 days, then I will close your file.
(emphasis added)
Notably in this email, Ms Yang has identified and advised the wrong time frame for the lodgement of the application. However, as established in the cross-examination of the applicant, he acknowledged that he received that email and that he opened and read the attached documents. The “Notification of refusal of application for a Student (class TU) visa”, dated 11 January 2013 and located at p.57 of the Yang Bundle contains the correct timeframe for lodgement of the review application. At the bottom of that page it states:
No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Migration Review Tribunal (MRT) for a review of this decision of this decision. An application for review of this decision must be given to the MRT within 21 calendar days after the day on which you are taken to have received this letter.
(emphasis added)
During the cross-examination of the applicant by Ms Francois it was confirmed that the applicant had received, read and had in his possession the email, attaching the delegate’s decision and notification, which contained the correct information regarding his application for review. The following exchange occurred during the applicant’s cross-examination:
Ms Francois: Mr Awon, can I provide you with a bundle of documents that I’ve just provided to the court, and can I ask you to turn to page 20. Do you see that’s an email from your former migration agent to you dated 11 January 2013?
Mr Awon: Yes.
Ms Francois: And do you see it has at about a third of the way down the page a part that says attachments?
Mr Awon: Yes.
Ms Francois: And do you see the content of the email?
Mr Awon: Yes.
Ms Francois: If you wish to refresh your memory, please take the time to read it?
Mr Awon: Yes.
Ms Francois: Do you recall receiving this email?
Mr Awon: Yes.
Ms Francois: Right. Do you know if you opened the attachments to the email?
Mr Awon: Yes.
Ms Francois: And you saw that that was a letter from the department?
Mr Awon: Yes.
Ms Francois: And the decision?
Mr Awon: Yes.
Ms Francois: Do you recall reading those documents?
Mr Awon: Yes.
(Transcript, 18 July 2014, p. 5.10-29)
Despite Ms Yang advising the applicant the wrong time frame for applying for review, she did provide the applicant with the document that contained the correct information. In addition, as evidenced at the hearing, the applicant is fluent in the English language and admits that he read the document. It is inconceivable that a person who has a fraudulent intent to misinform another would willingly and voluntarily pass on the documentation that contains the correct information.
Mr Turner noted the relevant provisions of the Code of Conduct that he argued had been breached by Ms Yang. His Honour Driver FM (as he was then) in SZOVP v Minister for Immigration & Anor (No. 2) [2011] FMCA 442 noted the obligations the Code of Conduct imposes on migration agents. At [56] therein Driver FM stated:
56. The Code of Conduct imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent's client. …
In SZOVP (supra) Driver FM considered the concept of a migration agent “acting in the best interests of” their client and stated as follows at [59]-[61]:
59. The concept of “acting in the best interests of” implies a positive duty to do so. In Breen v Williams (“Medical Records Access case”) [1996] HCA 57; (1996) 186 CLR 71 (6 September 1996) Gaudron and McHugh JJ at [12] of their joint judgment say:
While the notion of “best interests" is a relevant consideration in some areas of the law, such as the law relating to child welfare, a doctor does not impliedly promise that he or she will always act in the “best interests" of the patient. The primary duty that a doctor owes a patient is the duty "to exercise reasonable care and skill in the provision of professional advice and treatment". The doctor does not warrant that he or she will act in the patient's best interests or that the treatment will be successful (82). If a doctor owed such a duty, he or she would be liable for any act that objectively was not in the best interests of the patient. (emphasis added).
60. In Minister for Immigration v Le [2007] FCA 1318 (27 August 2007) Kenny J at [52] said:
It does not follow from this that a representative is at large with respect to his client’s affairs. Registered migration agents (as Mr Oladejo was required to be) are subject to regulation by the law, including the Act, the Migration Agents Regulations 1998 (Cth), and the Code of Conduct made under these Regulations and s 314(1) of the Act. Under the Code, registered migration agents are required to act in the lawful interestsof their client at all times (clause 1.12); to deal with their clients competently, diligently and fairly (clause 2.1); and to have due regard to a client’s dependence on the agent’s knowledge and experience (clause 2.4). Further, they “must ... within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; ... act in accordance with the client’s instructions; and ... keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client...": clause 2.8. Mr Oladejo was thus obliged to seek Ms Le’s instructions on the matter of a further hearing and, for this purpose, to inform her of his discussion with the Tribunal.
61. The applicant contends that the concept of “acting at all times in the lawful interests of the client” must be construed as requiring the migration agent to act at all times in the interests of the client provided only that this is lawful. In conjunction with the other obligations described above by Kenny J this is said to impose on a migration agent a duty similar to acting in the best interests of the client in that the obligation is a positive one and a breach is to be determined objectively. In my view, it is unnecessary and inappropriate to seek to generalise from or put a gloss on the express duties imposed on migration agents in the Code of Conduct. I accept, however, that there must be an objective component to any determination as to whether the prescribed obligations were breached.
(emphasis added)
The argument that is before the Court is that Ms Yang fraudulently advised the applicant the wrong time frame in which to lodge his review application. Mr Turner argues that the subsequent action of Ms Yang advising the applicant to do nothing in relation to the Invitation to Comment ultimately defended her position against any claim that she had caused any error. Ms Francois argues that there was no fraudulent intent behind the actions of Ms Yang.
The Court acknowledges and accepts that Ms Yang incorrectly advised the applicant of the wrong date by which he had to lodge his review application. However, upon viewing the documents reproduced in the Yang Bundle it is apparent to the Court that Ms Yang advised and attempted to act in the best interest of the applicant. At relevant times she communicated with the applicant, reminded the applicant of future appointments and advised the applicant of the possible outcomes of his applications. An example can be seen at the email exchange located at p.26 of the Yang Bundle. On 27 December 2012 Ms Yang replied to an email of the applicant, and stated as follows:
Dear Muhammad,
I am currently on holidays and before I went on leave, I tried to contact you many times. I understand that you are busy with work, however, this matter is quite important so you need to give it priority.
At this time. I have not received a visa refusal from your case officer as yet. Please refer to my email to you of 13 December as to your options. This email is very clear as to the possible outcomes and the options you have.
…
The principle of migration agent fraud only operates when it can be shown that the fraud has in some way affected the Tribunal’s discharge of its decision making functions: see SZFDEHCA at [47]-[53] and SZLIX (supra) at [33] where their Honours Tamberlin, Finn and Dowsett JJ stated at [33]:
33. … But SZFDE requires that the agent in question is fraudulent in a way that affects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged…
(emphasis added)
Noting their Honours’ comments directly above, the Court is required to weigh the evidence and determine whether Ms Yang’s actions can be characterised as fraudulent.
On 23 May 2013 Ms Yang, on behalf of the applicant, received the Invitation to Comment (Yang Bundle, p. 31-32). Within that letter it states:
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to your authorised recipient on 11 January 2013 and, on that basis that 11 January 2013 was the date on which you are taken to have been notified, the last day for lodging the application for review was 1 February 2013. As the application was not received until 7 February 2013, it appears to be out of time. However, this is a matter which must be determined by a Tribunal Member.
On 4 June 2013, the applicant signed a standard release, with [3] of that document stating:
Both parties confirm that any contracts/agreements are now terminated and that an amount of $2,200.00 will be refunded back to the undersigned upon receipt of this signed Standard Release.
On 28 June 2013, both the Notification of the Decision and the Tribunal’s Decision Record were sent to Ms Yang, who was still the authorised recipient on record in respect of the attempted application for review.
There are two significant occurrences during the above timeline, being the willingness of Ms Yang to refund the applicant’s money and the time frame between events. The first notification of the error was sent on 23 May 2013. By 4 June 2013, twelve days later, Ms Yang had agreed to refund and had arranged for a standard release to be signed by the applicant and did so within a short timeframe. As argued by Ms Francois, the applicant still had time to take further steps and go elsewhere to seek advice before the Tribunal’s decision was handed down on 28 June 2013.
At the hearing the applicant stated during his cross-examination that after he had asked for a refund, Ms Yang had given him a “cash in hand” refund in two instalments. Under cross-examination the applicant claimed that he had paid her more than the amount refunded, but had no receipts or other evidence of this occurring. The evidence the Court of payments and refunds is as follows:
a)Email dated 13 December 2012 from Ms Yang to the applicant (p.24 of the Yang Bundle), stating:
2. Allow the visa application to be refused, then take it to appeal at the Migration Review Tribunal (MRT). If you are able to obtain the required lelts (sic) results, then you stand a good chance of getting the decision overturned at the MRT. If you wish to proceed to the MRT, then you will be looking at $2,500.00 including GST (my fees for MRT are usually $3500.00 for this service) and also an application fee of $1540.00. The application fee of $1540.00 is refundable to you if you successful with the appeal. The processing time is approximately 6-9 months on average (this is just a guide only, it could take longer) and during that time, you should continue your studies at the new college to show that you are a genuine student.
b)Letter dated 7 February 2013 from Ms Yang to the applicant (p. 54 of the Yang Bundle), stating:
OUR FEES
For the services above, our fees will be $2500.00 at a special discounted rate.
c)Standard Release dated 4 June 2013 (p. 30 of the Yang Bundle), stating:
Both parties confirm that any contracts/agreements are now terminated and that an amount of $2,200.00 will be refunded back to the undersigned upon receipt of this signed Standard Release.
d)Email from Ms Yang to the applicant, dated 7 July 2013 (p.12 of the Yang Bundle), stating:
I’ve processed the refund for you in the amount of $2,200.00, as specified in the Standard Release signed by you on 4 June 2013.
e)Lodgement Receipt, dated 5 July 2013 (p.13 of the Yang Bundle) containing:
i)Lodgement Receipt from ANZ bank account from Jacqui Yang to Muhammad Awon in the amount of $2,200.00; and
f)Remittance Advice from the Tribunal to the applicant in the amount of $1540.00, the Tribunal refund, in the form of a cheque, specifically:
i)The first Remittance Advice dated 12 July 2013 (p.29 of the Yang Bundle). However, p. 28 of the Yang Bundle shows a letter from Ms Yang to the Tribunal, dated 30 August 2013, requesting that the cheque, made out to the applicant, be re-issued, as the abovementioned cheque had been lost; and
ii)The second Remittance Advice dated 5 September 2013 (p. 27 of the Yang Bundle).
I make the point about payment and refund between the applicant and Ms Yang to highlight Ms Yang’s intention and behaviour throughout the process. The applicant contends that he was not refunded all the money that he had paid. From the evidence outline above, it can be seen that approximately $300 of all the monies allegedly paid were not refunded. Also, it can be noted that the timeframe between receiving the Invitation to Comment and the signing of the Standard Release was no more than twelve days.
The evidence before the Court does not explain why the amount of $300.00 was not refunded, however, the documents in the Yang Bundle strongly support the view that the steps taken by Ms Yang are not consistent with fraudulent intent on her behalf. Those documents are:
a)Acknowledgment of application – dated 11 February 2013 (p.37 of the Yang Bundle);
b)Appointment of Authorised Recipient (p. 39 of the Yang Bundle);
c)Request for Access to Documents (p.40 of the Yang Bundle);
d)Ms Yang’s Letter to the Tribunal with documents attached, dated 7 February 2013 (p. 41 of the Yang Bundle);
e)Fax Activity Report confirming transmission, dated 7 February 2013 (p.40 of the Yang Bundle);
f)Application to Tribunal (p.43-53 of the Yang Bundle); and
g)Payment for Tribunal Application – paid by Ms Yang’s own visa card in the amount of $1540.00.
In my view, the repayment of the application fee by Ms Yang is not consistent with fraudulent intent.
A significant argument advanced by the applicant is the at [7] of the Awon Affidavit where the applicant deposes the following conversation that purportedly took place on or about 16 June 2013:
7. On or about 16 June 2013, I attended Ms Yang’s office to discuss what could be done about the decision.
To the best of my recollection, the following conversation took place:
I said: “what can we do now”
She said: “You can only get married to an Australia girl, go clubbing to find someone because that’s the easiest way to find a girl or you could go to a remote are (sic) to find work and try to get state sponsorship, or you could stay illegally.”
…
The evidence that is before the Court shows that Ms Yang, despite giving the wrong time frame to lodge the review application, set out the options that were available to the applicant, during various stages of the visa application process (see pp.20 and 24 of the Yang Bundle). The Court has no evidence to support the allegation of the conversation alleged to have taken place between the applicant and Ms Yang. What the Court does have before it is a history of emails, applications and advice between Ms Yang and the applicant which, despite one error, demonstrates Ms Yang’s intention to act in the interests of her client. Referring again to the Yang Bundle at p. 56 is the email from the Department notifying the refusal of the application for the Student (Class TU) visa. At p.57 is the Department’s letter which contains the right for Review of the Department’s decision, as follows:
The application for review of this decision must be given to the MRT within 21 calendar days after the date on which you are taken to have received this letter.
Significantly, Ms Yang gave the applicant this letter in full which is not consistent with any fraudulent intention.
Mr Turner argued that Ms Yang fraudulently advised the applicant to not make submissions to the Tribunal in regards to the lodgement of the review applicant and the direct consequence of this advice was to cover her fraudulent conduct. Ms Francois argued that Ms Yang’s advice to the applicant was consistent with the strict time limit applied and consistent with her view that nothing could be submitted to the Tribunal to rectify the error.
I agree with the submission made by Ms Francois that there is a strict time limit. The legislative requirements in relation to time limits are set out at [63]-[65] above. The decision that have addressed this provision is listed at [69] above. In Han v Minister for Immigration and Multicultural Affairs (supra) Sackville J stated at [21]:
21. As Mr Markus pointed out, this does not mean that an “MRT-reviewable decision” is not subject to any form of review. Under Part 5 Div 3 of the Migration Act, an MRT-reviewable decision, subject to certain exceptions, may be reviewed by the Migration Review Tribunal. (The jurisdiction of the Tribunal is, however, subject to stringent time limitations imposed by the Migration Act: see s 347(1)(b)(i) and reg 4.10, imposing a time limit in a case covered by s 338(3) of two working days after the visa holder receives notice of the cancellation.) Decisions of the Migration Review Tribunal are themselves "judicially-reviewable decisions": s 475(1)(a). The Federal Court therefore has jurisdiction to review decisions of the Migration Review Tribunal on the grounds specified in s 476(1) of the Migration Act. But a decision of the delegate to cancel a visa, if within s 338(3) of the Migration Act, is not directly subject to judicial review by the Federal Court.
More recently, in Cheng v Minister for Immigration and Citizenship (supra), Flick J stated at [16]:
16. Section 347(1) provides the manner in which and the time within which an application for review is to be made to the Migration Review Tribunal. That subsection provides in part as follows:
(1) An application for review of an MRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; or
...
The provision of present relevance is s 338(2).Section 347(1)(b) refers to a “period ending not later than” 28 days after the notification of a decision, including one “covered by” s 338(2). Regulation 4.10(1)(a) of the Migration Regulations specifies a 21 day period. That regulation relevantly provides:
(1) For paragraph 347 (1) (b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:
(a) if the MRT-reviewable decision is mentioned in subsection 338 (2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or
...
An application received outside the time limit prescribed has been held not to be a valid application and one that the Tribunal does not have jurisdiction to review: e.g., Keo v Minister for Immigration and Citizenship [2009] FCA 676, 177 FCR 479. See also: Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303. The time limits imposed have been described as “stringent”: Han v Minister for Immigration and Multicultural Affairs [2000] FCA 1071 at [21], [2000] FCA 1071; 103 FCR 517 at 521 per Sackville J.
The Court has taken into consideration the argument advanced by Mr Turner about Ms Yang’s breach of the migration agent’s Code of Conduct. However, on the evidence before the Court, in my view it is apparent that it was not Ms Yang’s intention to incorrectly advise the applicant and, instead, she was attempting to act in the best interests of the applicant generally. As mentioned elsewhere in this judgment all of the material subpoenaed from Ms Yang has been reviewed and considered, except for some file notes which were not called for in the subpoena. I acknowledge that there is no submission relying on a Jones v Dunkel (1959) 101 CLR 298 inference in relation to this matter. However, the Minister’s representative offered to tender correspondence that the decision had been made by the Minister not to call Ms Yang although she was willing to give evidence. I agree with the submission made on behalf of the Minister that on the material before the Court, the highest the applicant’s case can go is that Ms Yang mistakenly told the applicant the wrong time period for lodgement. There is no evidence that Ms Yang had a fraudulent intention nor can it be discerned from the circumstances if the case. What can be said against Ms Yang is that in giving the applicant the wrong time period for lodgement she fell short of the standards required by the Code of Conduct for registered migration agents. A negligent failure to comply with the Code of Conduct is not unlawful behaviour when considered with complex questions of intent or physical elements. There is nothing to suggest that Ms Yang intentionally failed to comply with the Code of Conduct.
Mr Turner referred the Court to the Full Federal Court decision in SZSJA (supra) which was an appeal from the Federal Circuit Court where the question was whether an agent should be taken to have been acting in applicant’s best interest in placing the applicant’s signature on the Response to Hearing Invitation form without the client’s authority, and further did not tell the applicant of the hearing date. The fact situation before this Court is distinctly different from that in SZSJA (supra) which is demonstrated as follows. The Full Court in SZSJA (supra) at [62] raised the following questions:
·Whether the agent should be taken to have been acting in the applicant’s bests interests in placing the applicant’s signature on the form without authority?
·Does this preclude a finding of fraud against the applicant?
·Does it preclude a finding of fraud against the Tribunal?
The Full Court found:
62. …It will be necessary from the Federal Circuit Court to make findings as to the agent’s state of mind.
At [63] of SZSJA (supra) the Full Court indicated the satisfaction that this Court must reach to establish if the agent did have fraudulent in doing this act and stated:
63. It will be a question for the Federal Circuit Court whether the person who signed the Response to Hearing Invitation form should, in terms of dishonesty or fraud, be judged by the standards of ordinary decent migration agents: see Macleod v R [2003] HCA 24; 214 CLR 230 at 242; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 162, referred to in a bankruptcy context in Marcolongo v Chen [2011] HCA 3; 242 CLR 546 at 559.
Then at [64] of SZSJA (supra), the Full Court stated:
64. Section 314(2) of the Migration Act provides that a registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct…
The relative, but not determinative, aspect of the standard of ordinary decent migration agents in terms of the Code of Conduct is the part dealing with the making of the statement which the applicant knows or believes to be misleading or inaccurate. Consequently, to sign someone else’s signature when in the applicant’s evidence he gave no authority, then the conduct of the agent would have amounted to fraud. Those circumstances are far removed from advising the wrong time period for lodging a review application. Significantly, the agent in answering the subpoena has handed over the document that shows her advice was wrong at the time she gave it. That does not demonstrate fraudulent intent in giving that wrong time period as it can be seen to be a mistake.
The fraud that has to be relied upon in this case for it to succeed is that the fraud prevented the correct lodgement within the time limits. The advice that the agent gave to the applicant, not to make any submissions to the Tribunal, is consistent with the fact that the Tribunal observed a strict time limit. That advice cannot be seen to be an attempt to cover up her conduct. Further, from the time that Ms Yang took steps to refund the fees paid by the applicant, which was on 4 June 2013, there was sufficient time for the applicant to have sought advice elsewhere.
The refund of the money to the applicant on 4 June 2013 was conduct that was consistent with her belief that the Tribunal operated under a strict time limit and not consistent with the allegation that she had fraudulent intent in hiding her own conduct. As indicated above this freed the applicant to take any further steps that he wished to take before the Tribunal handed down its decision.
As a matter of completeness, I refer to Mr Turner’s and Ms Francois’ oral submissions stating that this Court is bound by the Federal Court’s decision in SZSXT (supra) which is a decision of their Honours Perram, Robertson and Griffiths JJ. That was a joint decision of the Court where the fraudulent conduct of a notorious person frustrated the exercise of the jurisdiction by this Court by filing an application out of time. Mr Turner directed the Court’s attention to [53]-[56] of SZSXT (supra), where their Honours stated:
53. The circumstances in SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871 provide a further illustration of dishonest or fraudulent conduct of a third party which disabled the Tribunal from discharging its statutory functions, and attracted judicial intervention. In that case, the Tribunal found that it did not have jurisdiction to entertain a review application because the application had been lodged late (see s 412(1)(b) of the Act). The applicant sought a review of that decision in the Federal Magistrates Court. He said that he had been assisted by “a friend”, who also helped prepare his primary visa application, and that he had been repeatedly told by the person assisting him that his review application had been lodged by that person. The applicant said that he was shocked to learn subsequently that this had not happened. The Federal Magistrates Court dismissed the application on the basis that the circumstances did not fall within SZFDE and simply represented “bad or negligent advice or some other mishap”.
54. On appeal, Greenwood J disagreed. At [46], his Honour said:
The combination of conduct on the part of the person assisting which arguably contravenes these provisions of the Migration Act coupled with misrepresentations arguably dishonestly made as to the lodging of the review application elevates the matter, accepting the applicant’s version of the facts for present purposes, beyond mere promises or bad or negligent advice or simply some other class of unfortunate mishap.
55. At [54] (and see also at [67]), Greenwood J said:
In this case, the applicant’s participation in a decision-making process has been affected by the material dishonesty of another. It has caused the applicant to be prevented from engaging with that process as he would have wished, and sought to do, in reliance upon what ultimately turned out to be the arguably dishonest conduct of the assisting person. The material dishonesty of the assisting person has, in one sense, conveyed a false impression to the decision-maker that the applicant has chosen not to invoke the review jurisdiction of the Tribunal within the prescribed time or has chosen to invoke it by simply making an application outside the prescribed time.
56. It should be emphasised that it was unnecessary for Greenwood J to make final findings on these matters in circumstances where the applicant was seeking leave to appeal from the interlocutory decision of the Federal Magistrates Court, an extension of time for an application for leave to appeal and leave to appeal itself. Justice Greenwood granted all that relief.
What is being endorsed by the Full Federal Court is the appropriate analysis of the factual matrix from which a fraud finding might be found based on inference and facts. The analysis does not deal with difficult questions of construction. The circumstances of the decision before Flick J in SZQVV Appeal are referred to at [3]-[4] of that decision, where his Honour stated:
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.
Flick J in SZQVV Appeal described the issues before him at [16] as follows:
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”.
Flick J’s decision in SZQVV Appeal then undertakes an ‘examination’ of the decision in SZFDE HCA. The significance of SZFDE HCA was address by Flick J in SZQVV Appeal at [18]-[20] where he stated:
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.
The outcome in SZQVV Appeal is summarised by Flick at [23] where he stated:
23. Any potential argument founded upon the alleged “fraud” of a third party fails on the facts.
In the decisions of both Greenwood J in SZQVV Interlocutory and Flick J in SZQVV Appeal, the analysis of the factual matrix from which a fraud finding might be found were obiter and were not determinative as it did not focus on a vigorous analysis of where fraud was the ratio decidendi.
In SZSXT (supra) at [53]-[56] (extracted above at [115]) there is nothing stated about the correctness of his Honour Greenwood J’s construction of s.412 of the Migration Act, rather their Honours Perram, Robertson and Griffiths JJ agreed with Greenwood J’s analysis of the facts which could arguably give rise to a finding of fraud. The Full Court is endorsing the appropriate analysis of a factual matrix.
SZSXT (supra) addresses fraud on a court in public law litigation concerning fraud being committed upon the court by a third party who represented that he had expertise enabling him to properly conduct the applicant’s application. The circumstances in SZSXT (supra), which are summarised at [60] of that decision, are clearly distinguishable from the facts in the matter before this Court. This is clearly apparent from the contents of [60], where the Court stated:
60. Having regard to these principles and our factual findings above, we consider that this is a case where a third party has engaged in conduct which has not only impacted upon the applicant personally but has also amounted to a fraud on the Federal Circuit Court and disabled it from performing its important supervisory function as envisaged by the Act. In particular:
(a) the applicant was led to believe by Mr Sarkis that he would attend to filing the applicant’s application for review in time but he failed to do so and he did not inform the applicant of that fact;
(b) in circumstances where the applicant was entirely dependent upon and trusted the advice and assistance he thought he was receiving from Mr Sarkis, he attended the Federal Circuit Court on 6 September 2013 in circumstances where he did not appreciate that his application had been filed late by Mr Sarkis and that he would be expected to offer an adequate explanation for that delay;
(c) the applicant was instructed by Mr Sarkis to read to the judge a script prepared by Mr Sarkis, the burden of which was to blame another person, Mr Ford, for the late filing of the application;
(d) the originating application, which was prepared and filed by Mr Sarkis on behalf of the applicant on 11 June 2013, also sought to blame Mr Ford for the late filing of the application and made no reference to Mr Sarkis’ responsibility for the delay;
(e) the applicant was totally unfamiliar with Australian court practices and procedures and he did not fully appreciate the nature of the hearing on 6 September 2013 or what was expected of him – he relied on Mr Sarkis to defend and represent him;
(f) as the applicant was not aware at the time of the hearing that Mr Sarkis had not filed the application in time or the circumstances surrounding that failure, because Mr Sarkis had not informed them of these matters, the applicant was not in a position to provide the Court with an accurate explanation concerning the real reasons for the delay;
(g) Mr Sarkis took no steps to explain to the Federal Circuit Court why he had delayed in filing the application even though he was probably the only person who was in a position to so explain and he also knew that such an explanation was expected by the Federal Circuit Court if an extension was to be granted to the applicant;
(h) as a matter of clear inference, the Federal Circuit Court was not told of the reasons for the delay in filing the application to that Court because Mr Sarkis had concealed from the applicant the fact of the delay and the reasons for it and Mr Sarkis had not disclosed those matters to the Federal Circuit Court himself by reason of his own self-interest in not disclosing his own apparently unauthorised activities on behalf of the applicant; and
(i) the effect of all these matters was to deny the applicant a meaningful opportunity to persuade the Federal Circuit Court to extend time to enable the Tribunal’s decision to be reviewed for jurisdictional error. They also subverted the Federal Circuit Court’s proper consideration of the question whether time should be extended “in the interests of the administration of justice”, thereby further subverting the proper exercise of the Court’s jurisdiction under Pt 8 of the Act.
Ms Yang’s actions do not reflect any similarity to that of Mr Sarkis. Absent from the evidence, particularly the Yang Bundle, is any mention by Ms Yang of her obligation of being required by a client’s instruction to do something that she does not believe should be done. There is no notice of this nature in writing within the Yang Bundle. Nor is there any written acceptance of this nature by the applicant. The argument advanced on behalf of the applicant is that the reasonable inference is that Ms Yang did not consider that she was doing anything wrong until the invitation was received from the Tribunal which prompted her to change direction as follows:
a)She quickly tells the applicant “Nothing we can do. I will give you money back”;
b)She did not want the applicant making a complaint about her;
c)She did not want her conduct put before the Tribunal;
d)She did not give the applicant the correct advice; and
e)She did not give any advice other than to do nothing.
It is apparent that a mistake was made initially by Ms Yang and the subsequent actions taken her when she became aware of her error were unsatisfactory. It is accepted the Code of Conduct was breached, however, an act of fraud as set forth in the authorities above has not been established. The requisite element necessary to establish fraud is not in evidence and Ms Yang was not called as a witness.
From the evidence I have before me, I am not satisfied that fraud has been inflicted on the Tribunal by Ms Yang. I am not satisfied that Ms Yang had any fraudulent intent in misadvising the applicant. Despite advising the applicant of the wrong time frame, no fraud occurred in preventing the correct lodgement.
Conclusion
For the above reasons, the sole ground of review must fail. Further, a fair reading of the evidence before the Court, particularly the Decision Record, reveals no error on the part of the Tribunal. The application should be dismissed with costs awarded to the Minister.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 24 March 2015
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