Bayer v Minister for Immigration - [2014] FCCA 1723

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYER & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1723

Catchwords:
MIGRATION – Application for review of a decision of the Migration Review Tribunal – whether there was a fraud on the Tribunal – no fraud found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.276, 280, 281, 282, 283, 341, 347, 476, Part 7

Migration Regulations 1994 (Cth), reg.4.10, Sch. 2

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Alraheb v Minister for Immigration and Citizenship & Anor [2009] FMCA 1284
SZODB v Minister for Immigration and Citizenship & Anor [2010] FMCA 144
SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471
SZIVK v Minister for Immigration and Citizenship [2008] FCA 334
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
SZQVV v Minister for Immigration and Citizenship [2012] FCA 871

First Applicant:

GILBERT ROBERT BAYER

Second Applicant:

RITA AGNES BOROS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 986 of 2013

Judgment of:

Judge Nicholls

Hearing date:

4 March 2014

Date of Last Submission:

4 March 2014

Delivered at:

Sydney

Delivered on:

4 August 2014

REPRESENTATION

Appearing for the Applicants:

Mr R Turner

Solicitors for the Applicants:

Manning Lawyers

Counsel for the Respondents:

Mr B O’Donnell

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 8 May 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 986 of 2013

GILBERT ROBERT BAYER

First Applicant

RITA AGNES BOROS

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 May 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 18 April 2013 which affirmed the decision of the Minister’s delegate to refuse student visas to the applicants.

Background

The applicants, Mr Gilbert Robert Bayer (“the first applicant”) and

Ms Rita Agnes Boros (“the second applicant”) are citizens of Hungary (“Court Book” – “CB” – CB 1 and CB 2). They arrived in Australia on 24 July 2012 on tourist visas (CB 4). The first applicant applied for a student visa on 23 October 2012 (CB 1 to CB 42, including attachments). In this application the second applicant indicated her intention to also study (CB 2). [I note that this was not raised again throughout the application process, and she was assessed as a “dependant” of the first applicant.]
The first applicant received correspondence from the Minister’s department by email on 11 December 2012. Given certain relevant circumstances, and as the first applicant was applying for the student visa while in Australia, he was required to “demonstrate exceptional reasons for the grant of a student visa”. This was explained by the department as establishing that the visa being granted “would improve bilateral relations or provide significant economic benefit to Australia” (CB 48.6). The applicants were provided with 28 days to respond to the request (CB 46.6).
The delegate refused the applicants’ application for student visas on 18 December 2012. The decision record indicates that the first applicant responded to the request for further information on 18 December 2012 by email. [I note a copy of this email is not included in the materials provided by the Minister.] The delegate assessed the first applicant’s reasons as “not being exceptional reasons for the grant of an initial Student visa onshore” (CB 55.6). As the first applicant was found not to meet “cl.573.211” of the Migration Regulations 1994 (Cth) (“the Regulations”), the second applicant’s application as a dependant was also refused, as it did not satisfy cl.573.322(b) of the Regulations (CB 55.7)
The delegate made reference in the decision record to “cl.573.211”. I agree with the Minister that in the circumstances this was plainly a mistaken reference to “cl.573.227”. This is so when regard is had to the subject matter discussed. I accept that this was a “typographical error”. In any event, this did not emerge as an issue before the Court for consideration.

The Tribunal

The applicants applied to the Tribunal for a review of the delegate’s decision on 11 January 2013 (CB 59 to CB 93, including attachments). The Tribunal wrote to the applicants on 14 February 2013 to notify them that it did not view the applicants’ application for review as “valid” because it had not been lodged within the relevant time limit. The Tribunal took the view that the applicants were notified of the delegate’s decision by email on 18 December 2012 (CB 49). They were required to make the application for review within 21 days of that date (s.347 of the Act and reg.4.10 of the Regulations). That is, by 8 January 2013. The application for review was made on 11 January 2013. The applicants were invited to make “comments on whether a valid application [had] been made” by 11 March 2013 (CB 96).
On 11 March 2013 the Tribunal received written submissions from a lawyer who had been appointed to represent the applicants before the Tribunal (CB 97 to CB 102).
The submissions stated that the applicants had been provided with advice by an “Education Agent”, a “Mr Avila”, who was not a registered migration agent ([1] at CB 97). The representative submitted that Mr Avila had informed the applicants that they had 28 days to file an application for review with the Tribunal. The “correct” number of days was 21. Further, that Mr Avila informed them that the application had to be “lodged by Registered Post” ([5] – [6] at CB 97).
In all, the representative’s submissions emphasised that the applicants had received certain advice from Mr Avila. This was as to the “methods of service” (how to lodge an application for review), and “time limits” within which the application for review must be made.
In essence, the applicants’ position before the Tribunal was that they relied on Mr Avila’s advice, which in relation to the two matters above was “incorrect”, and that they had acted in “good faith”. But, in relying on this advice their application for review was lodged out of time.
Further, that Mr Avila’s advice in this regard amounted to “third party fraud”. The applicants submitted that they relied on this advice and such reliance “dissuaded them from applying for appeal of their visa refusal within the relevant time period” (CB 100.8). The representative relied on SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 (“SZFDE”) (variously in particular at [14], [22], [32] and [51]) to argue that (CB 100.9):
“…the Tribunal’s view as to the invalidity of the couple’s appeal application is a nullity at law and stress that if the Tribunal were to further press the view that the couple’s application was made invalidly, it would be acting against its statutory obligations to accord procedural fairness to applicants to review.”
On 18 April 2013, the Tribunal decided that it did not have jurisdiction to determine the applicants’ application for review. In its decision record, it stated that it had considered the representative’s submissions in relation to SZFDE. However, it considered that SZFDE did “not support a view that fraud on [the Tribunal] is possible before its jurisdiction is engaged” [emphasis in original] ([7] at CB 108). The Tribunal relied on earlier authorities of this Court for that proposition (Alraheb v Minister for Immigration and Citizenship & Anor [2009] FMCA 1284 and SZODB v Minister for Immigration and Citizenship & Anor [2010] FMCA 144).

Application Before the Court

The application made on 8 May 2013 contained the following grounds:
“1. The Tribunal misapplied the law to the facts as found.
Particulars
a. The Tribunal found that ‘fraud on it is not possible before it’s jurisdiction is engaged.’
b. The Migration Act 1958 s.338 sets out decisions that are reviewable by the Tribunal
c. The Tribunal, therefore, has jurisdiction to review those decisions.
d. the Tribunal found that fraud could only be on it after the Tribunal’s jurisdiction had been engaged.
e. Fraud on the Tribunal is relevant if it affects the jurisdiction of the Tribunal
2. The Tribunal applied the wrong test
Particulars
a. The Tribunal found that fraud on it was only relevant if the fraud occurred after an application was lodged
b. The correct test is whether an Applicant is disadvantaged by the operation of the fraud on the Tribunal and the Tribunal, is therefore, deprived of its duty to review the decision
c. As set out in SZFDE v MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR [2007] HCA 35 of 2 August 2007 [47]
‘French J correctly identified the ultimate issue upon the Tribunal’s decision making process, for which Parliament provided in Pt.7 (which is analogous to Pt.5) of the Act, of the fraud of Mr Hussain.’”
[Emphasis in the original.]

Before the Court

At the final hearing of this matter Mr R Turner appeared for the applicants. Mr B O’Donnell of counsel appeared for the Minister.

The Evidence

The Court Book (“CB”), containing a bundle of relevant documents, was in evidence before the Court.
The applicant sought leave to read the following affidavits:
1)The affidavit of Mr Gilbert Robert Bayer made on 19 February 2014 (no objection, leave granted).
2)The affidavit of Ms Rita Agnes Boros made on 19 February 2014 (no objection, leave granted).
3)The affidavit of Mr Raymond Charles Turner, solicitor, made on 28 February 2014 (no objection, leave granted).

Consideration

The issue in the present case is whether the decision made by the Tribunal that it did not have jurisdiction in the application sought to be put before it by the applicants was affected by the fraudulent conduct of a third party. That is, there was a fraud “on the Tribunal” which the applicants say “unravels everything”.
A number of matters require note before addressing the impugned conduct of the third party (“Mr Avila”).
First, there was no dispute between the parties that the application for review was lodged out of time to the Tribunal. The parties agreed that:
1)the applicants were properly notified of the delegate’s decision on 18 December 2012;
2)Section 347(1)(b) of the Act and reg.4.10 of the Regulations were relevant to this type of application and require the application for review to be made within 21 days of the date of notification;
3)that date was 8 January 2013; and
4)notwithstanding that the application was made only three days out of time, the Tribunal had no discretion to extend time.
Second, the Tribunal noted the applicants’ submissions to the Tribunal, sent through their representative, that the “principles of fraud set out in [SZFDE]…would apply here” ([7] at CB 108). In its reasoning, the Tribunal relied on authorities of this Court (handed down three to four years earlier) to distinguish between fraudulent conduct by a third party before the Tribunal’s jurisdiction had been engaged, and after. In these circumstances it made no findings as to the claims of fraud.
Before the Court, the Minister directed attention to SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 at [19] (“SZQVV”) per Flick J (handed down before the Tribunal’s decision) where his Honour stated:
“…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.”
The Minister explained that for the purposes of these proceedings, the Minister accepted what was relevantly said in SZQVV. The issue between the parties, therefore, came down to the following difference. The applicants’ position was that Mr Avila’s conduct amounted to fraud. The Minister’s position was that his conduct was not fraudulent. That is, at its highest Mr Avila’s impugned conduct was negligent.
Before the Court, to “make good” their assertion of fraud, the applicants relied on a number of matters.
First, an undated letter apparently signed by Mr Avila addressed to “…whomsoever it may concern” and given to the Tribunal by the applicants’ representative on 11 March 2013 (CB 103). The letter is in the following terms:
“Go study is an education agency which represents Colleges and Universities in Australia through its outlets in Australia and overseas.
This letter is to verify that we have known and processed the student visa application of Robert BAYER GILBERT and his partner Rita AGNES BOROS.
I have advice them to count 28 days from the respond (REFUSAL) to be able to appeal by pos. But the actual timeframe was 21 days.
He has been assessed by the department of immigration case officer and declares a refusal on their application. Therefore the decision made by this department was not accepted and they have lodged and appeal to the MRT.
In closing, let me say I have no hesitation if request
Sincerely,
Jorge Avila
Student Counsellor”
[I note that the first applicant’s name is not in the correct “order”, however I have read this as a typographical error.]
The applicants submitted that Mr Avila acknowledged that the “time limit is wrong”, and while not making any similar acknowledgement as to the method by which the application for review may be given to the Tribunal, what Mr Avila relevantly said was wrong “as a matter of law”.
Second, the first applicant’s evidence. The submissions emphasised his evidence that he and Ms Boros spoke in person with Mr Avila on 8 January 2013 (Mr Bayer’s affidavit at [3]). The submissions were that the importance of this date was that it was the last day by which the application for review to the Tribunal could be made.
Further, that Mr Avila then assisted the applicants to “fill out the form to appeal [to the Tribunal]” (Mr Bayer’s affidavit at [4]) (see further below).
Third, the evidence of Ms Boros, the second applicant. This was that she and Mr Bayer received an email on 18 December 2012 notifying them of the delegate’s decision and she called Mr Avila immediately (Ms Boros’ affidavit at [2]). That Mr Avila gave her certain advice during this call, in particular that 8 January 2013 was the earliest date that Mr Avila told her could be arranged for their meeting given that Mr Avila’s office was to close for Christmas (Ms Boros’ affidavit at [2]). She and Mr Bayer went to see Mr Avila on 8 January 2013 (unbeknownst to her and Mr Bayer at the time, that was the last day by which the application for review could be lodged) (Ms Boros’ affidavit at [3] – [5]).
The elements of Mr Avila’s conduct emphasised by the applicants now were that he alerted them to the delegate’s decision (the refusal of the application for student visas), he did not arrange to see them in a timely fashion in circumstances where he erroneously told the applicants they had “plenty of time”, and they subsequently lodged the application by registered mail in circumstances where had they done so immediately, in person, they could have been within time.
The applicants claim that by his conduct Mr Avila misled them. The advice he gave them was incorrect. Further, Mr Avila’s conduct was, with reference to certain parts of the Act, “unlawful and/or illegal” (see further below).
During the hearing I sought to clarify the applicants’ position in relation to Mr Avila’s conduct in light of what the relevant authorities have said about fraud, and its effects on Tribunal decisions.
In SZFDE, the High Court dealt with factual circumstances where the conduct of a third party led to the applicants in that case being denied the opportunity to be heard at a hearing before the Refugee Review Tribunal. That is, the Tribunal had embarked on the exercise of its jurisdiction, but an important part of the process set out at Div.4 of Pt 7 of the Act relevant to the conduct of the review was vitiated, or stultified, because of the conduct of the third party, even though the Tribunal had no knowledge of that conduct.
Given the Minister’s position in the current case (and the reference to SZQVV above), the fact that the Tribunal in this instance had not embarked on the exercise of its jurisdiction need not concern us.
I note that “fraud” has been said to be “infinite in variety” (see SZFDE at [8] and SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 at [33] per Finkelstein J).
In SZFDE the High Court referred to the “different shades of meaning…in the constituents of ‘fraud’ in various areas of the law” (at [9]). For current purposes it is important to note the distinction between the equitable notion of fraud, what was said to be the more “red-blooded” fraud at common law, and the case before the High Court (and the case currently before this Court), which was described as falling within “public law” (SZFDE at [11] – [13]).
Relevant shape to this issue, and direction to this Court, was given by the High Court as to the nature of “fraud” in public law cases. In this regard, the High Court said (SZFDE at [14]):
“…in the present case the appellants do not challenge the description by French J of the Tribunal as having acted ‘blamelessly’. But the appellants do direct attention to the effect upon the processes of the Tribunal of the dishonest acts and omissions of a third party, Mr Hussain. In this regard, the appellants pray in aid another generally expressed precept drawn from private law and from the significance of dishonesty in the litigation of private rights. This is expressed in the oft-repeated proposition that whilst on one hand fraud may be infinite, on the other hand ‘fraud unravels everything’.”
Before the Court, the Minister urged attention to what the High Court in SZFDE said at [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.”
I agree with the Minister that the direction from the High Court, with respect, is that “fraud” in this type of public law case draws from the common law notions of fraud (as made clear in SZFDE at [53]).
In my respectful view, what the Full Federal Court said in Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 (“SZLIX”) at [33] per Tamberlin, Finn and Dowsett JJ is plain:
“The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may ensure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects 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) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.”

What I respectfully draw from this is that the elements of “fraud” such as to affect the process before the Tribunal requires some deliberate dishonesty. In SZQVV v Minister for Immigration and Citizenship [2012] FCA 871 at [61], Greenwood J referred to “…material dishonesty on the part of a third party which has had the effect of subverting the applicant’s opportunity to engage the Tribunal’s processes”. The conduct must be as the High Court described it, “fraud in the necessary sense” (SZFDE at [7]) and requires the Court to make an assessment of, amongst other things, “…what amounts to ‘fraud’ in the particular context” (SZFDE at [29]).
This was plain in the circumstances in SZFDE. In that case a third party knowingly gave advice to the applicants there not to attend a hearing with the Tribunal because he knew that there was a possibility that his “practice” as an unregistered migration agent, and his holding out to be a practising solicitor when he was not, would be revealed (see SZFDE at [42]).
In giving that advice, the third party’s representation to the applicants in that case was that “the Tribunal process was a sham and that participation in it might prejudice… prospects of a successful outcome on the basis of a submission to the Minister” (see SZFDE at [42]).
In the current case, the applicants’ submissions, it must be said in great part, in effect rose no higher than an assertion, and insistence, that Mr Avila’s conduct amounted to fraud. The applicants focussed on the outcome, that is, that they were deprived of an opportunity for review by the Tribunal, without seeking to explain how Mr Avila’s conduct amounted to fraud “in the necessary sense”, and as explained by the relevant authorities. There was nothing from the applicants, in their submissions to the Court, to say why or how Mr Avila’s conduct amounted to fraud (see also [57] below).
The Minister did not challenge the applicants’ evidence before the Court as set out in their affidavits. That evidence must be accepted. I have proceeded on that basis, and on the evidence in the Court Book. On the evidence, the following findings are relevant to understanding how to “categorise” or relevantly describe Mr Avila’s conduct.
There is no evidence that he held himself out to be a registered migration agent or practicing solicitor. The affidavits are silent as to this. They describe Mr Avila as being from “Go Study Australia”.
It is to be remembered that the first applicant made an application for a student visa to study in Australia (CB 1 and CB 6). In this, he stated he had not received any assistance in completing the application form, including from any registered migration agent (items 71 and 72 at CB 15). Accompanying his application were letters of offers of enrolment (CB 19 to CB 30). The form was also silent as to whether the applicants had received assistance from any “education agent” (item 73 at CB 15). The form required any communication from the Minister’s department to be sent to the first applicant and not to any third party (item 76 at CB 15).
Communication with the Minister’s department appeared to come from the applicants themselves and in turn was directed to them (CB 43 to CB 49). The letter of notification of the delegate’s decision was addressed to the first applicant at his residential address which he had provided to the Minister’s department (CB 50 and item 18 at CB 2). Further, it was sent to the email address provided by the first applicant as his own (see item 21 at CB 2 and CB 49). This was a method of communication that the first applicant had “agreed” to in making his application (see item 21 at CB 2).
How and when Mr Avila became involved in the applicants’ education and visa affairs is not explained by the applicants in their evidence before the Court (see further below). Nor is it otherwise satisfactorily explained in the material in the Court Book.
The date of the letter of the notification of the delegate’s decision is 18 December 2012 (CB 50 and CB 56). As set out above, I have proceeded on the basis of accepting the applicants’ evidence that on that same date they received an email from Mr Avila enclosing the “decision refusing [their] application for a student visa” (Mr Bayer’s affidavit at [2] and Ms Boros’ affidavit at [2]). However, how Mr Avila came to receive the decision or why it was sent to him remained unexplained. Indeed on their application to the Tribunal and in a supporting letter from the applicants, there is no mention of Mr Avila. That letter is dated 9 January 2013. This is plainly after their evidence of what occurred on 18 December 2012 and 8 January 2013.
Some, although it must be said, limited, light is shed on these questions by the submissions from the applicants’ representatives before the Tribunal (appointed on or about 11 March 2013, see CB 97 to CB 102).
In these submissions the representative stated that Mr Avila had provided “advice” to the applicants ([1] at CB 97). The letter does not state when, or over what period that advice was given. The words “to date” would suggest that this was over some period of time. What can be said, however, is that there is an absence of any evidence now by the applicants to say that Mr Avila assisted them with the application for the visas. Nor was he appointed formally to represent them in the application to the Tribunal (see CB 66).
What is of relevant note here is that the context, or basis, of the relationship between Mr Avila and the applicants remains unexplained. At best, again with reference to the applicants’ representative’s submissions to the Tribunal (and see below Mr Turner’s affidavit) what can be said is that Mr Avila is an “…Education Agent and is not a Registered Migration Agent…” (emphasis in the original) ([1] at CB 97). In his own letter, Mr Avila described himself as a “Student Counsellor” with “Go Study Australia” (CB 103).
Although Mr Avila’s letter states that his firm “processed the [applicants’] student visa application”, importantly, there is no evidence before the Court to say with any degree of clarity in what capacity Mr Avila sought to assist the applicants, how they viewed the status of that relationship, and whether they paid for his advice. In particular, the advice concerning the lodging of the application for review to the Tribunal.
In all the circumstances, I cannot see that Mr Avila’s advice to the applicants can be said to amount to fraud in the “necessary sense”. It is the case that his advice was not correct in a number of ways as referred to above. Mr Avila admitted this, explicitly in one particular, and implicitly in the other, in his letter provided to the Tribunal on 11 March 2013 (CB 103).
However, far from revealing dishonesty, the terms of that letter, and the circumstances of its presentation to the Tribunal, strongly suggest that Mr Avila openly admitted his “mistake” and he took a step to address it. That is, by providing the letter to the applicants’ representatives so that it could be given to the Tribunal.
On the evidence, and in all the circumstances, it cannot be said that Mr Avila acted dishonestly in the advice he gave the applicants. On the evidence, these circumstances appear to fall squarely within what was said by the High Court in SZFDE at [53] and the Full Federal Court in SZLIX at [33]. That is, the advice, which was incorrect, may have been given as a result of “negligence” or “inadvertence”. It was plainly “bad advice” which was to the detriment of the applicants. However, it was not “fraud”.
Before the Court, the applicants were pressed to explain, beyond assertion, how the conduct was fraudulent. Particularly in light of what was said in SZFDE and SZLIX. The applicants submitted that the circumstances were “right on the borderline” of fraud, but then pressed that the matter addressed below “pushed it over the line”.
The applicants’ argument here was as follows. The applicants referred to s.276 of the Act which deals with “Immigration assistance”. This is defined to include (s.276(1) of the Act):
“(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.”
The applicants submitted that Mr Avila engaged in conduct which could fall within s.276(1)(b) and (c). They described the conduct as being “unlawful” and “illegal” in light of s.276 of the Act, and therefore fraudulent.
What is immediately obvious is that s.276 of the Act, of itself, does not prescribe, or proscribe, conduct that can be said to be illegal or unlawful, or, as the applicants submitted, that Mr Avila’s conduct “offended” that section. Section 276 of the Act is directed, in effect, to describing or defining the notion of “immigration assistance”.
In these circumstances, the applicants’ argument must be understood with broader reference to Pt 3 of the Act in which s.276 appears. In particular, s.280 of the Act, which imposes restrictions on the giving of immigration assistance (s.280 of the Act):
“280 Restrictions on giving of immigration assistance
(1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance.
Penalty: 60 penalty units.
Note: See also paragraph 504(1)(ja) (which deals with the payment of penalties as an alternative to prosecution).
(1A) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) This section does not prohibit a parliamentarian from giving immigration assistance.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(3) This section does not prohibit a lawyer from giving immigration legal assistance.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(4) This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(5) This section does not prevent an individual from giving immigration assistance of a kind covered by subsection 276(2A) if the assistance is not given for a fee or other reward.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(5A) This section does not prevent a close family member of a person from giving immigration assistance to the person.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(5B) This section does not prevent a person nominating a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(5C) This section does not prevent a person sponsoring a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(6) This section does not prohibit an individual from giving immigration assistance in his or her capacity as:
(a) a member of a diplomatic mission; or
(b) a member of a consular post; or
(c) a member of an office of an international organisation.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(7) In this section:
close family member has the meaning given by the regulations.
member of a consular post means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972.
member of a diplomatic mission means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967.
member of an office of an international organisation means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organisations (Privileges and Immunities) Act 1963, is an international organisation within the meaning of that Act.”
The applicants’ position then can be seen as follows. Mr Avila was not a registered migration agent (see the affidavit of Mr Turner and its relevant annexures). In these circumstances he was prevented by operation of s.280(1) of the Act from giving “immigration assistance” (with obvious reference to s.276 of the Act). There was no evidence that he fell within any of the exemptions to this prohibition as set out at s.280(2) to s.280(6) of the Act.
For the sake of completeness, I note that there was no evidence that Mr Avila charged the applicants a fee for the impugned advice. Therefore, before the Court, the applicants were unable to rely on s.281 of the Act (restriction on charging fees for immigration assistance), or s.282 of the Act (restriction on charging fees for immigration representation). Nor is there evidence that Mr Avila made any false representation to the applicants that he was a registered migration agent (s.283 of the Act).
Without necessarily conceding that Mr Avila’s conduct fell within the proscription in s.280(1) of the Act, with reference to s.276(1)(b) and (c) of the Act, the Minister’s position was that even if it were to be accepted that Mr Avila’s conduct breached s.280(1) in the circumstances of this case that does not make that conduct amount to “fraud”.
I agree with the Minister. The fact that Mr Avila may have breached, or even if he did breach, s.280 of the Act should not divert attention from the basis of the applicants’ complaint to the Court and the authority (such as SZFDE and SZLIX) on which they rely. Those authorities clearly provide the direction to this Court as to what may vitiate a Tribunal decision or stultify the processes before the Tribunal.
An important distinction must be noted here. A breach of the prohibition in s.280(1) of the Act applying to those who are not registered migration agents, and do not fall within the exceptions at s.280 of the Act, is one of “strict liability” (s.280(1A) of the Act).
In these circumstances, it may be that the character of Mr Avila’s conduct, as described above, may not assist him in withstanding any proceedings against him taken in enforcement of s.280 of the Act (noting that Mr Avila was not called as a witness in these proceedings).
But, in light of the relevant authorities, it is the actual character of Mr Avila’s impugned conduct in the circumstances which is at the heart of whether it can be found that “fraud” affected the Tribunal’s decision in these proceedings.
As set out above, I agree with the Minister that to establish “fraud”, as must be established here for the applicants to succeed, some level of “dishonesty” or “concealment” must be in evidence as explained in SZFDE and SZLIX. As the Minister also submitted, it does not mean that a breach of s.280 of the Act cannot be a part of the circumstances that may be characterised as revealing fraud. But, in the totality of the circumstances and evidence presented, that “breach” on its own is not sufficient to establish fraud.
The best view of the evidence in the current case is that Mr Avila is not a registered migration agent, or even an “education adviser”. Based on the evidence before the Court, he was a “student counsellor”. He did not hold out or represent himself to be anything but that. Before the Court, the applicants’ submissions described him as an “education agent”. There is no evidence that he was dishonest in his dealings with the applicants or that he sought to conceal the true state of affairs for some advantage to him.
Before the Court, the applicants submitted that Mr Avila did misrepresent himself to the applicants in one respect, in that he held himself out to them as having specialist knowledge of immigration law.
However, their own evidence to the Court is silent on this point. There is nothing there to support this proposition. Nor is there anything in the material in the Court Book to assist the applicants in making good this proposition.
The applicants also sought to rely on Mr Avila’s letter provided to the Tribunal on 11 March 2013 (CB 103). The argument was that because he gave “advice” about the application process for review by the Tribunal he was holding himself out to be knowledgeable, or a “specialist”, in migration procedures.
The difficulty for the applicants in relying on the letter now for this purpose is that in the letter Mr Avila plainly acknowledged his advice, at least in one important particular, was wrong. There is no declaration of special knowledge or expertise. Nor is there anything else in the letter to suggest that he misrepresented himself to the applicants as to his relevant status, or degree, of specialised knowledge of migration procedures.
On the evidence, I accept the Minister’s submissions that Mr Avila did not misrepresent his status or level of expertise. There is no evidence of an intent to deceive such as to support a claim of some level of dishonesty. On the evidence he was a student counsellor, or education advisor who sought to assist with some aspects of the applicants’ education and visa matters. He may have been “out of his depth” when it came to “visa matters”, but the absence of any misrepresentation, dishonesty or apparent gain for him at the applicants’ expense means the impugned conduct does not rise to “fraud” as that is explained by the authorities such as to affect the Tribunal’s decision.
It is necessary to deal with one other matter raised by the applicants. They pleaded in their application to the Court and pressed in submissions that, amongst other things, the Tribunal “applied the wrong test”.
The applicants pointed to the Tribunal’s reasoning, based on earlier authorities of this Court (as set out above), that it was not necessary to consider whether Mr Avila had acted fraudulently. This was because any such conduct, even if made out, was conduct engaged before its exercise of its jurisdiction. It could therefore not affect the exercise of the jurisdiction.
For the reasons set out above and for the purposes of the current matter, the Minister agreed that the Tribunal was wrong in proceeding in this fashion. That is, it is accepted for current purposes that the Tribunal made an error of law in this regard.
However, this does not assist the applicants in the current circumstances. It must be noted, again, that the central issue for the Tribunal, the question posed for it, was whether the applicants had made an application for review of an “MRT reviewable decision”, within the time provided for by the Act (see [19] above).
Here, the applicants did not dispute that as a matter of fact the application had been lodged out of time. In the circumstances presented, that is the answer to the applicants’ argument. Of course, had “fraud” by a third party been made out, the outcome here would have been different. If there was conduct which vitiated or “unravelled” the Tribunal’s process and decision, this would have led to a finding that the application for review to the Tribunal, in those circumstances, was not out of time. However, in the current circumstances, what remains is that as a matter of fact the application was made out of time. That is the conclusion reached by the Tribunal, albeit taking an erroneous avenue in arriving at that conclusion.

Conclusion

The grounds of the application to the Court are not made out. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 4 August 2014