BLH15 v Minister for Immigration - [2016] FCCA 1198

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLH15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1198

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – alleged fraud by the applicant’s authorised recipient – where the recipient informed the Tribunal that the applicant would attend the Tribunal hearing – where the recipient failed to inform the applicant of the hearing details – where the applicant a victim of family violence – capacity of the applicant to participate in the Tribunal hearing considered.

Legislation:

Migration Act 1958 (Cth), ss.425, 426A, s.422B, 414, 420, 424

Evidence Act 1995 (Cth), s.140

Briginshaw v Briginshaw (1938) 60 CLR 336
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v Lu (2010) 189 FCR 525
Minister for Immigration v SCAR (2003) 128 FCR 553
Minister for Immigration v Singh (2014) 231 FCR 437
Minister for Immigration v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17
Minister for Immigration v SZNCR [2011] FCA 369
Minister for Immigration v SZNVW (2010) 183 FCR 575
Qantas Airways Ltd v Gama (2008) 167 FCR 537
SZFDE v Minister for Immigration (2007) 232 CLR 189
SZFNX v Minister for Immigration [2007] FCA 1980
SZHVM v Minister for Immigration [2008] FCA 600
SZLHP v Minister for Immigration (2008) 172 FCR 170
SZLLY v Minister for Immigration (2009) 107 ALD 352
SZMSF v Minister for Immigration [2010] FCA 585
SZMWT v Minister for Immigration [2009] FCA 559
SZQBN v Minister for Immigration (2014) 226 FCR 68
SZRJS v Minister for Immigration [2013] FCA 682
SZSJA v Minister for Immigration [2013] FCAFC 158; (2013) 308 ALR 266
SZSXT v Minister for Immigration (2014) 222 FCR 73

Applicant:

BLH15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2012 of 2015

Judgment of:

Judge Driver

Hearing dates:

18, 19 May 2016

Delivered at:

Sydney

Delivered on:

1 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr Mostafa

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari shall issue, removing the record of the former Refugee Review Tribunal decision made on 12 June 2015 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine the review application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2012 of 2015

BLH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 12 June 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant arrived in Australia from Tonga on a tourist visa on 25 April 2013. In her application for the protection visa, she claimed to fear harm at the hands of her ex-husband and claimed that the police in Tonga would not protect her from her ex-husband's abuse and stalking if she were to return to Tonga[1].
[1] See Court Book (CB 8-10; CB 54-55)
The Minister’s delegate accepted the applicant’s claim that she had experienced family violence during her marriage which ended in 2009, and which was finalised by way of divorce in 2011, and also for some time after the marriage in 2011[2]. However, the delegate found, on the basis of being told that her ex-husband had only gone to the applicant’s parents’ house one year after she departed Tonga and asked about her whereabouts, that if he was intent on harming her he would have more closely observed her movements and known that she had departed the country[3]. The delegate also raised with the applicant[4] the issue of her delay in lodging the protection visa application. Her visitor visa had expired on 25 July 2013 and she did not apply for her protection visa until 28 January 2014, and the delegate found that the delay indicated that she did not fear persecution or significant harm in Tonga[5].
[2] CB 62
[3] CB 62
[4] CB 55
[5] CB 62
The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugee Convention reason, and also found that her fear of persecution was not well founded[6]. Nor was the delegate satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Tonga, there was a real risk that she would be subject to significant harm[7].
[6] CB 63
[7] see s.36(2)(aa) of the Migration Act 1958 (Migration Act)
The applicant sought review by the Tribunal on 31 July 2014[8]. The Tribunal affirmed the decision when the applicant did not attend a hearing set down on 12 June 2015, for which a hearing invitation under s.425 of the Migration Act 1958 (Cth) (Migration Act), had been sent to her via her authorised recipient (Ms Daphne Leveni)[9].
[8] CB 66-71
[9] see CB 75-77
The applicant did not respond to the hearing invitation as a result of which the Tribunal contacted Ms Leveni on 10 June 2015[10] to ascertain whether the applicant intended to do so. The Tribunal was advised by Ms Leveni that the applicant was intending to come. When the applicant did not appear at the hearing, the Tribunal made its decision affirming the decision of the delegate.
[10] see CB 84 [17]

The present proceedings

These proceedings began with a show cause application filed on 17 July 2015. The applicant now relies upon a further amended application filed on 22 February 2016 which raises the following grounds:
The grounds of the application are as follows:
1. The Tribunal’s jurisdiction remains constructively unexercised as a result of fraud on the Tribunal.
Particulars
a. Ms Daphne Leveni (Ms Leveni), who was not a migration agent, acted for the applicant in her visa application and application to the Tribunal.
b. Ms Leveni sought and received payment for acting for the applicant.
c. Ms Leveni was the applicant’s authorised recipient in the applicant’s dealings with the Tribunal.
d. Ms Leveni knew that at no stage did she inform the applicant that the Tribunal hearing was scheduled for 12 June 2015.
e. Ms Leveni had no reason to believe that the applicant was aware that the Tribunal hearing was scheduled for 12 June 2015.
f. On 10 June 2015, a Tribunal staff member contacted Ms Leveni and enquired whether the applicant would attend the hearing. Ms Leveni said that the applicant would attend the hearing, and also undertook to confirm this with the applicant and advise the Tribunal if the applicant did not wish to attend.
g. Ms Leveni’s misled the Tribunal by her statement to the Tribunal that the applicant would attend the hearing because it was made without any basis and it suggested that:
i. Ms Leveni was in contact with the applicant, which she was not; and
ii. the applicant knew of and planned to attend the hearing, which Ms Leveni knew could not be correct.
h. Ms Leveni did not contact the Tribunal after the conversation referred to in particular g above prior to the hearing of the applicant’s application on 12 June 2015.
i. Ms Leveni misled the Tribunal by:
i. undertaking to confirm with the applicant that the applicant would attend the hearing and to advise the Tribunal if the applicant did not wish to attend; and
ii. failing to contact the Tribunal thereafter;
because:
iii. Ms Leveni did not confirm with the applicant that the applicant would attend the hearing; and
iv. the absence of further contact from Ms Leveni suggested to the Tribunal that Ms Leveni had confirmed with the applicant that the applicant would attend the Tribunal hearing.
j. Ms Leveni’s misleading of the Tribunal was done knowingly.
k. Ms Leveni’s misleading of the Tribunal caused, or was a significant factor in, the Tribunal’s Decision to make its decision on review without taking any further action to enable the applicant to appear before the Tribunal.
l. The legislative scheme to afford natural justice to the applicant was thereby stultified, and the Tribunal’s jurisdiction remains constructively unexercised: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [49], [52].
2. The Tribunal failed to comply with s 425 of the Act.
Particulars
a. As at 12 June 2015, due to her mental health at the time, the applicant was not in a fit state to represent herself before the Tribunal.
b. As a result, despite the Tribunal being unaware of this, the invitation that it issued under s 425 of the Act was not a “real and meaningful” invitation: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352.
3. The Tribunal erred in law, or otherwise acted unreasonably, in proceeding upon the basis that the applicant’s authorised recipient was an agent or representative of the applicant or was otherwise authorised to act on her behalf.
Particulars
a. In her application to the Tribunal, the applicant expressly declined to appoint an agent or representative to act on her behalf.
b. The person named as authorised recipient, Daphne Leveni (Ms Leveni), was not the agent or representative of the applicant.
c.Other than by receiving documents as an authorised recipient, Ms Leveni had neither actual nor apparent authority to communicate with the Tribunal on behalf of the applicant.
d. The question whether Ms Leveni was the agent or representative of the applicant or was otherwise authorised to act on her behalf was a question of law.
e. The Tribunal’s Decision proceeded on the basis that Ms Leveni was the agent or representative of the applicant or was otherwise authorised to act on behalf of the applicant (at [17]-[18]).
f. In the alternative to particular d above, if the question of whether Ms Leveni was the agent or representative of the applicant or was otherwise authorised to act on her behalf was a question of fact, then the Tribunal acted unreasonably in proceeding on the basis set out in particular e above.
The third ground was not pressed.
In addition to the court book filed on 26 August 2015 and the supplementary court book filed on 11 May 2016, I have before me as evidence the following material:
a)two affidavits of the applicant made on 28 January 2016 and 12 April 2016 upon which she was cross-examined;
b)an affidavit by the applicant’s current husband made on 4 April 2016 on which he was cross-examined;
c)two affidavits by Ms Jenny Howell made on 29 January 2016 and 6 May 2016 and the documents exhibited to them, upon which she was cross-examined;
d)the affidavit of Daphne Leveni made on 16 February 2016 upon which she was cross-examined;
e)the affidavit of Dr Olav Nielssen made on 15 April 2016 and the documents exhibited to it upon which he was cross-examined.
I also received the following documents tendered as exhibits during the course of the trial:
·A1 – handwritten notes by Ms Howell;
·A2 – text message from applicant to “Holly”, 03.07.2015;
·A3 – letter from Minister’s Department to applicant, 30.01.2014;
·A4 – Health Examinations List;
·A5 – letter from Minister’s Department to applicant, 30.01.2014;
·A6 – Visa Application Summary;
·A7 – Attachment no 3.1;
·A8 – Attachment no 3.2;
·R1 – Progress notes, 12.06.2015 and 15.06.2015.
The applicant and the Minister both prepared several sets of pre-trial submissions and also made oral submissions at the trial.

Consideration

The question in issue

The central question in this case is whether the Tribunal fell into jurisdictional error by proceeding to determine the review by making its decision without taking any further action to enable the applicant to appear before it when she failed to appear for the scheduled hearing. The Tribunal exercised its discretion against the applicant under s.426A of the Migration Act. The applicant raises two arguments in support of the contention that jurisdictional error has been established. The first proposition is that the Tribunal was knowingly and intentionally misled by her authorised recipient (Ms Leveni) as to whether the applicant intended to and would attend the scheduled hearing. The applicant asserts that Ms Leveni failed to inform her of the scheduled hearing but nevertheless told the Tribunal that the applicant would attend (which statement carried with it the obvious implication that the applicant knew of the hearing). The Minister asserts that Ms Leveni did in fact inform the applicant about the hearing and that what Ms Leveni told the Tribunal simply reflected what she had been told by the applicant.
Secondly, the applicant contends that she was, in any event, unfit to attend the scheduled Tribunal hearing. That contention is supported by the evidence of Ms Howell. The Minister contends that the evidence of Ms Howell is unpersuasive and should be given little weight, in the light of the evidence of Dr Nielssen.
It should be emphasised at the outset that in neither respect can it be said that the Tribunal was knowingly at fault. The Tribunal proceeded on the basis that the applicant knew of the scheduled hearing and had advised her authorised recipient that she would attend it. The Tribunal was unaware of any medical issue which may have prevented the applicant from attending.
It should also be emphasised at the outset that the case involves significant (even fundamental) factual disputes between the applicant and the Minister. There are plainly issues of legal principle involved but in large part the case turns on those factual disputes. In that respect, this judicial review was atypical. The trial of the matter was conducted over two full days with very extensive cross-examination of the witnesses. That cross-examination proved to be of significant assistance in resolving the dispute, as will become clear.

Ground 1 – was the Tribunal’s review function disabled by the conduct of Ms Leveni?

The legal principles

The leading case on fraud as a vitiating factor on decisions of the Tribunal is the High Court’s decision in SZFDE v Minister for Immigration[11](SZFDE). In that case, the appellants did not appear before the Tribunal, although they were aware of the invitation issued by the Tribunal under s.425 of the Migration Act. The reason that they did not appear was that they were advised not to go by their representative, who was not a registered migration agent, and who incorrectly said that the Tribunal was “not accepting any visa applications at the moment”[12].
[11] (2007) 232 CLR 189
[12] SZFDE at [39], [42]
The High Court held that the representative’s fraud “had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants”[13]. Further on, the High Court stated that[14]:
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.
[13] at [49]
[14] at [51]
Accordingly, the Tribunal’s jurisdiction remained constructively unexercised[15].
[15] at [52]
The Court stated that the outcome in SZFDE did not mean that relief would be available for all persons who suffered disadvantage before an administrative tribunal by virtue of another person’s conduct. Their Honours accepted that there were sound reasons why a person who was detrimentally affected “by bad or negligent advice or some other mishap” should not be entitled to relief[16].
[16] at [53]
In that sense, it was significant that SZFDE was not a case of mere negligence. The High Court stated that the inference was open that the appellant’s representative had given the incorrect advice because he was motivated by self-preservation[17]. The case involved more than just an innocent mistake.
[17] at [45]
Two other points should be noted from the Court’s judgment in SZFDE. First, the Court observed that a practical aspect of fraud in public law was that often a victim of fraud would[18]:
have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted. Ainsworth v Criminal Justice Commission… is an example of the inadequacy of a conventional remedy such as damages. There they would, even if a cause of action arguably giving rise to them had been available, not only have been probably unquantifiable, but also not a useful remedy.
[18] at [22]
I accept that that point applies equally in the present case.
Secondly, when the Tribunal made its decision, it was unaware of the conduct engaged in by the representative[19]. Nevertheless, the fraud was classified as fraud on the Tribunal[20].
[19] at [37]
[20] at [51]
There are some distinguishing features of SZFDE and the cases which have applied it:
a)in SZFDE, the decision not to attend the hearing “was the result of the fraudulent conduct of a third party, Mr Hussain”[21], based on the evidence accepted by the Court of what he advised the applicants, which was that the “Tribunal was not accepting any visa applications at all at the moment” and that attendance might prejudice their case[22]; and
b)there was a clear inference open to be drawn as to his motives in acting as he did[23], as his practising certificate as a solicitor, and his registration as a migration agent, had both been cancelled[24].
[21] [37]
[22] see [39], [41]
[23] [38], [40]-[41], [45]
[24] see [3]-[4]
In Minister for Immigration v Lu (Lu)[25], I found a Tribunal decision was vitiated by reason of the fraud of a third party to whom the applicant claimed to have paid a large sum of money effectively intended to bribe the Tribunal. As part of the bribery scheme, she had been advised not to respond to the hearing invitation and not to attend the hearing[26], and I held that the Tribunal’s process was thereby disabled[27]. The Full Federal Court allowed an appeal by the Minister, holding that when the Tribunal determined Ms Lu’s case in her absence, it had not been “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review” (referring to SZFDE at [51]) because the process followed by the Tribunal (deciding the case in her absence) was the “natural consequence of her conscious election not to respond to the Tribunal’s invitation”.
[25] (2010) 189 FCR 525
[26] see [16]-[18]
[27] see [18]-[20]
In SZLHP v Minister for Immigration (SZLHP)[28], the Full Federal Court distinguished SZFDE, in a case where the applicant’s case was that his agent had told him to make false claims, and not to appear at the Tribunal hearing as it would be apparent that his claim to be Indonesian was false, given he could not speak the language. The case was distinguished from SZFDE as the applicant had colluded in the conduct of the agent regarding the false claim and it was therefore held that he was complicit in the attempt to deceive the authorities[29].
[28] (2008) 172 FCR 170
[29] per Branson J at [15]-[18]; and see Lindgren J at [34]-[35] and Graham J at [88]
In SZSJA v Minister for Immigration (SZSJA),[30] a third party had completed the response to the Tribunal’s invitation to hearing form and the issue was whether the appellant had impliedly authorised that person to do so, in particular, by forging his signature to give the appearance that the applicant had personally responded. The Full Federal Court held that the primary judge had erred in finding that the agent was impliedly authorised to do so[31]. This distinguished the case from SZLHP as it could not be said that the applicant in SZSJA was complicit in the relevant conduct of the third party. The Court then went on to find that the forging of the signature was central to the Tribunal’s decision to proceed to the hearing in the absence of the applicant as it implied that the applicant was aware of the hearing, knew the date and said he would attend, when that was not in fact the case. Thus the appeal was allowed.
[30] [2013] FCAFC 158
[31] at [49]-[50]

SZSXT v Minister for Immigration (SZSXT)[32] involved a fraud on the Federal Circuit Court rather than on the Tribunal. I had refused an application for an extension of time to seek judicial review of a Tribunal decision, but was found to have been unaware of the relevance of the conduct of a Mr Laba-Sarkis, who was assisting the applicant (and had charged a fee for doing so), to the delay. The Federal Court found that this Court was not advised of the real reasons for the delay because of Mr Laba-Sarkis’ desire to conceal his involvement. This was because that involvement was in breach of the provisions of the Migration Act that proscribe the provision of migration assistance by those who are not registered to provide that advice[33]. The Full Federal Court had evidence before it that Mr Laba-Sarkis was in fact facing criminal charges for breach of those provisions[34], and also had evidence that the applicants had paid him for assistance[35]. The Full Federal Court summarised the principles set out by the High Court in SZFDE at [51]-[52] and noted at [57] that each of the authorities referred to had involved fraud on the Tribunal rather than the Court, but held at [60] that the evidence[36] established fraud on the Court sufficient to disable it from exercising its supervisory jurisdiction.
[32] (2014) 222 FCR 73
[33] see [9]
[34] see [13]
[35] at [27]
[36] which it found met the Briginshaw standard: see [62]
Thus in both cases in which SZFDE was applied to find a fraud respectively on the Tribunal[37] and on this Court,[38] there was evidence, to the requisite Briginshaw standard, of some fraud on both the applicant and the decision maker. In SZSJA, the applicant was not aware that his signature had been forged, and the Tribunal was manifestly misled by that forged signature into considering that the applicant was aware of and planned to attend the hearing. In SZSXT, just as in SZFDE, the third party had reason to conceal the full extent of his involvement as he was providing migration assistance/legal advice that he was proscribed by law from providing.
[37]SZSJA
[38] SZSXT
In submissions in reply, the applicant contests some of those asserted distinguishing features.
First, the critical holding of the Full Federal Court in Lu was that Ms Lu “was a knowing participant in her own dishonest and fraudulent scheme”, which, if carried out, would have involved bribery of a public official[39]. This provided a sound policy reason for refusing Ms Lu’s entitlement to complain that the Tribunal’s decision was vitiated by fraud[40]. It is in that context that the Full Federal Court’s statement that “the process which the tribunal followed was the natural consequence of [Ms Lu’s] conscious election not to respond to the tribunal’s invitation”[41] must be understood.
[39] at [43]
[40] at [43], citing SZFDE at [53]
[41] at [38]
In the present case, there is no evidence of any complicity on the part of the applicant in the conduct of Ms Leveni.
Secondly, as the Minister notes in his submissions, the applicant in SZLHP was complicit in the attempt to deceive the authorities in that case. There is no evidence upon which a similar finding could be made against the present applicant. In the circumstances of the present case, a finding of fraud on the part of Ms Leveni would necessarily have as a corollary that the applicant was not involved in the fraudulent conduct.
Thirdly, SZSJA assists the applicant in the present case. SZSJA demonstrates that fraud on the Tribunal may be made out where the Tribunal is misled into thinking that the applicant is aware of the hearing date in the Tribunal.
In SZSJA, the response to hearing invitation form had been signed, purportedly by the applicant, but the applicant claimed this was done without his authority. The Full Federal Court noted that the purported signature of the appellant “appears to have been significant because the tribunal reading the form as signed could reasonably assume that, because the appellant had apparently signed it, he had knowledge of the hearing date in the tribunal”[42]. In the present case, the Tribunal, knowing of the conversation between a Tribunal staff member and Ms Leveni on 10 June 2015 referred to at [17] of the Tribunal’s decision (Conversation), would reasonably have assumed that the applicant had knowledge of the Tribunal hearing date.
[42] at [53]
Further on, the Full Federal Court said[43]:
if the question is posed “Why did the hearing in the tribunal proceed in the absence of the appellant?” the answer may be because the tribunal had a document in front of it that looked as though it was signed by the appellant in Mandarin, and therefore would convey to the tribunal that the appellant must have known the date and had said that he would be there at the hearing.
[43] at [58]
Later in the same paragraph, the Court said:
Considered specifically by reference to s 426A of the Migration Act, the exercise of the discretion by the tribunal could have been affected by the appearance of the appellant’s signature on the form which clearly implied that the appellant knew the date for the hearing before the tribunal and that the appellant had said he would attend that hearing.
In the present case, these comments from the Full Federal Court are said to assist the applicant’s case regarding the effect of the Conversation[44] on the Tribunal’s exercise of discretion to make its decision on the review without taking any further action to enable the applicant to appear[45]. The answer to the question “why did the hearing proceed in the absence of the applicant?” is likely to be, as events transpired, because the Conversation gave the Tribunal reason to believe that the applicant knew of the Tribunal hearing date.
[44] See [7] and [37] above
[45] see applicant’s submissions of 8 February 2016 at [21]-[24]
The primary judge in SZSJA had not made sufficient findings of fact to enable the Full Federal Court to determine whether there was a sufficient connection between the false signature on the hearing invitation form and the exercise by the Tribunal of its discretion under s.426A[46]. The Full Federal Court provided some general guidance to the Federal Circuit Court on the remitter of the application[47]:
… is it fraud on the appellant for the migration agent to place the appellant’s signature on the form so depriving him of direct information about the tribunal hearing? Did it also mislead the tribunal into believing the appellant agreed to, knew about, and said he would attend his hearing opportunity on the tribunal’s nominated date of 9 November 2012? As we have said, it appears from the tribunal’s reasons at [29] that this was the basis upon which the tribunal proceeded.
Another question is whether the agent should be taken to have been acting in the appellant’s best interests in placing the appellant’s signature on the form without authority? Does this preclude a finding of fraud against the appellant? Does it preclude a finding of fraud against the tribunal?
[46] at [59]
[47] at [61]-[62]
If the factual disputes in the present case are resolved in the applicant’s favour (in particular, if it is found that Ms Leveni had not informed the applicant of the date of the Tribunal hearing prior to the Conversation), then this guidance from the Full Federal Court suggests that the applicant is entitled to relief. The Conversation would have misled the Tribunal as particularised in the applicant’s further amended application, and there probably would not be a basis to infer that Ms Leveni was acting in the applicant’s interests during her phone call with the Tribunal.
Fourthly, SZSXT is neither against nor in favour of the applicant in the present case. The case is merely an example of the application of SZFDE to facts that are somewhat different to the present case.

The standard of proof – Briginshaw

The applicant’s case is based on a claim that the Tribunal decision is vitiated by fraud, specifically, fraud perpetrated by Ms Daphne Leveni. The Minister complains that the applicant submits, notably with no reference to authority[48] that the “allegation of fraud does not cause the applicant to bear a higher burden of proof in this case than is usually applied in civil proceedings”. The applicant acknowledges that s.140(2) of the Evidence Act 1995 (Cth) (Evidence Act) (which reflects the common law principles set out by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362) is “engaged”[49] yet submits (again, with no reference to any authority) that:
the only stage at which the Briginshaw standard falls to be applied is when the Court determines whether, at the time Ms Leveni has the conversation referred to at [17] of the Tribunal’s decision, she had told the applicant of the date of the Tribunal hearing.
[48] Applicant’s submissions in reply at [4]
[49] Applicant’s submissions in reply at [3]
The applicant’s pleaded case is that the Tribunal’s jurisdiction remains “constructively unexercised as a result of fraud on the Tribunal” and is particularised, among other things, by the claim that “Ms Leveni’s misleading of the Tribunal” was a cause of the Tribunal making a decision “without taking any further action to enable the applicant to appear before the Tribunal”. It is also particularised by reference to [49] and [52] of the High Court’s decision in SZFDE.
In SZFDE, it will be recalled that at [41], the Court endorsed the statement of French J (as his Honour then was) in the Full Federal Court that what was required to make out a case of fraud was proof of “what was said that was fraudulent, how it was fraudulent, and how it was acted upon”.
That the Briginshaw standard applies to the matters that must be proved to make out a case of fraud has generally been accepted. So for example, in Minister for Immigration v SZLIX,[50] the Full Federal Court, dismissing a claim that the conduct of the agent in that case constituted “fraud on the Tribunal”, said in a frequently cited passage[51]:
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 enure 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.(emphasis added)
[50] (2008) 245 ALR 501; [2008] FCAFC 17
[51] at [33]
Thus, on the basis of this authority, the applicant is required to prove, on the Briginshaw standard, that:
a)Ms Leveni did not notify the applicant of the hearing; and
b)that failure to notify was a “fraudulent omission vis-à-vis the visa applicant”[52] (emphasis added).
[52] SZLIX at [33]
It would also follow that before fraud within the meaning of SZFDE could be established, as stated in the Minister’s primary submissions, the applicant needs to prove, to the requisite standard, that when informing the Tribunal that she understood that the applicant intended to attend the hearing, Ms Leveni fraudulently misled the Tribunal. There is no question but that that would require proof on the Briginshaw standard.
In the Minister’s submission, a contest between the applicant’s uncorroborated evidence, and Ms Leveni’s evidence to the contrary about what was communicated, cannot, without more, be resolved in favour of the applicant where to find for her would require the Court to make a positive finding not only that Ms Leveni is lying about having informed the applicant of the hearing, but that she made the statement she did to the Tribunal with the intention of misleading the Tribunal.
In SZFDE, the High Court also expressly approved another part of French J’s reasons in the Full Federal Court. After finding that fraud had been established to the requisite standard in the case before it, the Court noted[53]:
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.
[53] at [53]
That statement has also been frequently cited, including by Middleton J in SZHVM v Minister for Immigration.[54] In that case, his Honour stated[55]:
SZFDE does not stand for the proposition that a failure by an applicant to attend the Tribunal hearing due to the fault or conduct of a 3^rd party bears the result that the Tribunal decision to proceed under s 426A of the Act is always vitiated by error.
[54] [2008] FCA 600 at [50]
[55] at [47]
It was also referred to by Besanko J in SZFNX v Minister for Immigration[56] where his Honour continued, after quoting [53] of SZFDE:
Whilst it might be possible to construe the above passage as limited to bad or negligent advice provided to an applicant who actually appears before the Tribunal, I think there is sufficient indication in the decision of the Full Court of this Court in SZFDE that an applicant’s failure to appear before the Tribunal by reason of the bad or negligent advice of his or her agent, as distinct from fraudulent advice or conduct, is not without more sufficient to constitute jurisdictional error: French J at 391-392 [101]-[103]; Allsop J at 401-402 [138]-[139].
[56] [2007] FCA 1980 at [33]
The applicant[57] distinguishes each of the Full Federal Court authorities relied on by the Minister in his primary submissions on one or another factual basis. Each case must of course be decided by reference to its own facts and circumstances. But the principles that apply are not in doubt.
[57] In submissions in reply at [11]-[22]
As Jagot J stated in SZMWT v Minister for Immigration [2009] FCA 559[58]:
[58] at [20]
The parties referred to the same decisions as identifying the relevant principles.
(1)An agent’s fraudulent dealings may have the effect of stultifying “the operation of the critically important natural justice provisions made by Div 4 of Pt 7” of the Migration Act 1958 (Cth). In that event, the “state of affairs merits the description of the practice of fraud ‘on’ the Tribunal” (SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [51]).
(2)Nevertheless, “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” (SZFDE at [53]).
(3)“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, …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” (Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 at [33]).
(4)An agent who places his or her own interests above that of the client is not necessarily engaged in a fraud, even if the conduct in question breaches the requirements of the Migration Act and Migration Regulations 1994 (Cth); what is required is “‘fraudulent’ conduct vis-à-vis the appellant” having the effect of disabling or stultifying the processes of the Tribunal (SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211; [2008] FCA 600 at [48]).
…
In the Minister’s submission, the applicant’s case cannot succeed. Even if (which the Minister does not concede), Ms Leveni did not act in the applicant’s best interests, or even if (which is also not conceded, and which the applicant would be required to establish on the Briginshaw standard), she breached the Migration Act by receiving payment for assisting the applicant although not a registered migration agent, that would not establish the requisite fraud on the Tribunal. What would be required is some evidence of some active conduct aimed at deliberately misleading the Tribunal or otherwise acting in such a way as to mean that the Tribunal’s jurisdiction remained constructively unexercised.
The Minister submits that Ms Leveni’s communication to the Tribunal (which was in response to being telephoned by the Tribunal as the applicant’s authorised recipient in circumstances where the applicant had not provided any contact information) to the effect that the applicant was planning to attend the hearing, is not capable on the evidence before this Court, of reaching that threshold.
The applicant joins issue to some degree in relation to s.140 of the Evidence Act and the Briginshaw principle.
The applicant concedes that Ground 1 involves an allegation of fraud on the part of the applicant’s authorised recipient (Ms Leveni), and to that extent, s.140(2) of the Evidence Act is engaged.
Subsection 140(1) provides that the Court must find the applicant’s case to have been proved “if it is satisfied that the case has been proved on the balance of probabilities”. The applicant contends that allegation of fraud does not cause the applicant to bear a higher burden of proof in this case than is usually applied in civil proceedings.
In my opinion the dispute on this point is more apparent than real. Subsection 140(2) permits the Court to take into account matters such as the gravity of the allegation of fraud when determining whether the Court is satisfied that the applicant has discharged the burden in s.140(1). Subsection 140(2) reflects the common law (as established in Briginshaw[59].
[59] Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [110], [127]-[131]
Two points should be noted in respect of s.140(2) and the Briginshaw test in the present case.
First, it does not follow that, because Ground 1 involves an allegation of fraud, every factual finding that the Court is required to make on Ground 1 calls for the application of the Briginshaw standard. In the present case, the stage at which the Briginshaw standard falls to be applied is when the Court determines whether, at the time Ms Leveni has the Conversation referred to at [17] of the Tribunal’s decision, she had told the applicant of the date of the Tribunal hearing.

Ms Leveni claims that she had told the applicant. The applicant denies this to be so. If that factual dispute is resolved in the applicant’s favour, then the Court must consider whether a finding of fraud will follow.
Secondly, this is not a case in which the applicant is relying upon “inexact proofs, indefinite testimony or indirect inferences”[60]. The applicant has adduced direct evidence that she was not told of the Tribunal hearing date by Ms Leveni. This does not mean that Briginshaw has no application. However, in a case like the present, Briginshaw does not require the applicant to do more than comfortably satisfy the Court of her version of events. If the Court prefers the applicant’s version of events over Ms Leveni’s to the degree of satisfaction required, then the Court should hold that Ms Leveni had not told the applicant of the Tribunal hearing date by 10 June 2015.
[60] cf Briginshaw at 362

Resolving the factual dispute

The applicant’s husband gave evidence of the payment of significant amounts of money to Ms Leveni for the purposes of her assistance in the applicant’s case before the Tribunal. He deposed as to the circumstances of those payments.[61] He was unshaken in his evidence under cross-examination.[62] Although he is the applicant’s husband and, in ordinary circumstances, might be thought to be willing to give evidence supportive of his spouse, the applicant’s evidence is that her husband was abusive and that family violence forced her to flee the family home and seek refuge elsewhere in the period leading up to the Tribunal hearing.[63] Although I do not know the current nature of the relationship between the applicant and her husband, I accept that their relationship has been a difficult one and that the applicant remains afraid of her husband. In my opinion, this reduces significantly the force of any proposition that the applicant’s husband would want to lie on her behalf. I also note that the applicant’s husband is a nephew of Ms Leveni. I give his evidence significant weight.
[61] Affidavit of the applicant’s husband at [7] –[11]
[62] Transcript at 5-8
[63] Applicant’s affidavit of 28 January 2016 at [88] – [115]
The applicant’s evidence corroborated that of her husband on the question of payments, although her evidence was less definitive and she did not have the same direct knowledge in most respects.[64] A paralegal with the applicant’s solicitors gave oral evidence that she had not shown the applicant her husband’s affidavit or the annexures to it. I found the applicant to be a persuasive witness under cross-examination although she appeared to become tired as cross-examination wore on and had difficulty remembering things. She conceded that she was aware that Ms Leveni wished to speak to her about her Tribunal hearing because she received a text message from Ms Leveni’s sister to that effect. She denied, however, that Ms Leveni ever spoke to her prior to the Tribunal hearing about the time and place of the hearing. She denied any knowledge of the contents of the hearing invitation sent to Ms Leveni as her authorised recipient. She maintains that she only found out about the hearing when Ms Leveni spoke to her after the Tribunal decision to tell her the outcome of the review.[65]
[64] See the applicant’s affidavit of 12 April 2016
[65] Applicant’s affidavit of 12 April 2016 at [3] – [5] and Transcript at 63 – 67
Ms Leveni was an unimpressive witness. She was hyper-vigilant, at times bordering on evasiveness and would not concede anything that might suggest any fault on her part. She expressly denied asking for or receiving any payment for her assistance (from the applicant or anyone else she has assisted over the years) except for the reimbursement of a small out-of-pocket expense for the Tribunal’s filing fee.[66]
[66] Transcript 131 - 133
Importantly, in my opinion, Ms Leveni was untruthful in her evidence about her Conversation with the Tribunal recounted at [17] of the Tribunal’s decision record where the Tribunal stated[67]:
At my request, on 10 June 2015 a Tribunal staff member rang the applicant’s “authorised recipient”, to establish whether the applicant intended to attend the hearing. Although the authorised recipient said that the applicant would attend, she also undertook to confirm this with the applicant and to advise the Tribunal if the applicant did not wish to attend. Nothing further has been heard from the applicant or the authorised recipient.
[67] CB 84
Under cross-examination, Ms Leveni expressly and repeatedly denied that in that Conversation she gave any undertaking to confirm the applicant’s attendance.[68] She repeatedly stressed that no such confirmation was called for because it was clear that the applicant would attend. I prefer the Tribunal’s record of that Conversation and I find that Ms Leveni’s evidence in this regard was false.
[68] Transcript 127
Further, Ms Leveni’s evidence as to when her alleged conversation with the applicant about the hearing date occurred was variable. In her statement provided to the Minister’s solicitors prior to preparing her affidavit[69] Ms Leveni stated that the conversation occurred two weeks before the Tribunal hearing. At [39] of her affidavit, Ms Leveni stated that the Conversation with the Tribunal took place “a couple of days” after her alleged conversation with the applicant in which Ms Leveni allegedly told her about the Tribunal hearing. The Tribunal’s decision record records that the Conversation with Ms Leveni took place two days before the scheduled hearing (which became the date of the decision). In response to a question from me, Ms Leveni ultimately accepted that her alleged conversation with the applicant would on that basis have been four days before the scheduled hearing.[70] Nevertheless, Ms Leveni’s evidence was that there was enough time for the applicant to prepare for the hearing.
[69] Annexure DL1 to her affidavit at page 42 of the supplementary court book
[70] Transcript 134-135
In her affidavit, Ms Leveni goes to great lengths to attempt to demonstrate her good character and her community works.[71] I have no reason to doubt her evidence about her community engagement but in relation to the particular factual issues in dispute between the parties, I am comfortably satisfied that Ms Leveni was paid by the applicant’s husband for her assistance in relation to the review before the Tribunal and that she did not inform the applicant of the time and place of the Tribunal hearing in advance of that hearing. In my opinion, nothing necessarily flows from the finding that Ms Leveni was paid for her services, apart from the general impact on Ms Leveni’s credibility. While s.281 of the Migration Act prohibits a person who is unqualified from charging for migration services, there is nothing to prevent a person from charging for other assistance such as translation, clerical services and other incidental matters undertaken by an authorised recipient. While it appears to me highly likely that Ms Leveni did more in relation to the review than might ordinarily be expected of an authorised recipient, that may have been because of the familial relationship between her and the applicant and her husband rather than because of any general practice on Ms Leveni’s part. What is important, for present purposes, is that Ms Leveni was untruthful in denying that she was paid.
[71] Affidavit of Daphne Leveni at [7] –[12]
It follows from my findings on the evidence that Ms Leveni was not truthful when she told the Tribunal that the applicant would attend the Tribunal hearing. Ms Leveni was not in a position to know one way or the other because she had not been able to speak to the applicant. The Tribunal was misled because it proceeded upon the false assumption that the applicant knew of the hearing and proposed to attend it.
It remains to determine whether the circumstances are sufficient to support a conclusion that the Tribunal review function was disabled by Ms Leveni’s conduct.
The evidence establishes to my comfortable satisfaction that the Tribunal was actively misled by Ms Leveni as to the applicant’s intentions. Ms Leveni falsely represented to the Tribunal that the applicant knew of the hearing invitation details and planned to attend the scheduled hearing. Ms Leveni further represented to the Tribunal that she would confirm this with the applicant and would let the Tribunal know if the situation changed.
The reality, which I accept from the evidence of the applicant, was that Ms Leveni was unable to contact the applicant because she had fled the family home due to fear of her husband and was living in a refuge. The applicant was not taking calls on her phone from Ms Leveni. It was only when, after the Tribunal decision, Ms Leveni pretended to be someone else (by using the phone of her sister who was a friend of the applicant) that she was able to speak to the applicant.[72]
[72] Affidavit of Daphne Leveni at [42] and Transcript at 128
It is possible that if Ms Leveni had told the Tribunal the truth (that she had been unable to contact the applicant) the Tribunal might still have proceeded to make its decision when the applicant failed to appear at the hearing. However, if Ms Leveni had told the Tribunal why she had been unable to contact the applicant, the Tribunal would have been informed of circumstances material to the exercise of its discretion under s.426A of the Migration Act.
The Tribunal was deprived of that opportunity because of the untruthfulness and lack of candour on the part of Ms Leveni. I reject any notion that Ms Leveni was seeking to protect the applicant’s interests by telling the Tribunal that the applicant would attend the hearing. Her Conversation with the Tribunal was only two days before the scheduled hearing and, given her inability to contact the applicant to that point, it was unlikely that she would be successful in the remaining two days. Even if she had been successful, the applicant would have had insufficient time to prepare for the hearing. Ms Leveni’s assertion that the applicant had enough time to prepare for the hearing is baseless.[73]
[73] Transcript at 135
I am satisfied that the circumstances constituted a fraud both on the Tribunal and the applicant. The Tribunal was deliberately misinformed both of the applicant’s knowledge of the scheduled hearing and her preparedness to attend it. The Tribunal was deliberately deprived of information about the applicant’s circumstances known to Ms Leveni which materially bore upon the Tribunal’s exercise of discretion under s.426A. Likewise, the applicant was deprived of the opportunity either to attend the hearing or to seek an alternative hearing date.
I find that Ground 1 has been established.

Ground 2 – was the applicant unfit to attend the scheduled Tribunal hearing?

The legal principles

Minister for Immigration v SCAR

The leading authority in relation to Ground 2 is Minister for Immigration v SCAR[74] (SCAR).
[74] (2003) 128 FCR 553
In that case, SCAR’s father had passed away four days before the Tribunal hearing[75]. He was so affected by receiving this news that he required medical treatment[76]. A psychologist regarded him as being “in no condition to handle” his interview with the Tribunal[77].
[75] at [12]
[76] at [12]
[77] at [12]
In this Court, the primary judge held that that the applicant “was not in a fit state to represent himself when the Tribunal considered his application”[78]. Though the applicant had attended the Tribunal hearing, the Tribunal was unaware of the emotional crisis from which he was suffering[79].
[78] at [16]
[79] at [15]
In these circumstances, a Full Court of the Federal Court posed the question as[80]:
whether the tribunal made a jurisdictional error in proceeding (albeit innocently) in circumstances where the respondent “was not in a fit state to represent himself when the tribunal considered his application”.
[80] at [22]
Having reviewed the relevant authorities, their Honours stated that[81]:
s 425 of the Act imposes an objective requirement on the tribunal. The statutory obligation upon the tribunal to provide a “real and meaningful” invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation.
[81] at [37]
The Court noted that obligations imposed by s.425 of the Migration Act had been held to have been breached in cases “where the fact or event resulting in unfairness was not realised by the tribunal”[82].
[82] at [37]
The Court concluded[83]:
Given the findings of fact made by the primary judge that the respondent was not in a fit state to represent himself before the tribunal it is clear that the invitation he received under s 425 of the Act was not a meaningful one. Through no fault of the tribunal it was not aware of this. Even so, the tribunal did not comply with s 425 of the Act. It did not extend a meaningful invitation to the respondent. The respondent did not receive the fair hearing required by the Act. Consequently the tribunal made a “jurisdictional error”.
[83] at [41]

SZLLY v Minister for Immigration

SCAR remains good law. One example of its application is SZLLY v Minister for Immigration[84] (SZLLY). In that case, a husband and wife applied for a protection visa. The Tribunal invited them to a hearing to be held in Sydney on 21 August 2007[85].
[84] (2009) 107 ALD 352
[85] at [6]
The applicants lived in Griffith, almost 600 km from Sydney[86]. On 20 August 2007, the husband sent the Tribunal a fax stating that he was “keenly willing” to appear, but that he was in financial hardship and as such was unable to travel to Sydney and that he had heard that it was possible to obtain a hearing in Griffith[87].
[86] at [6]
[87] at [6]
The hearing did not go forward on 21 August 2007. On 22 August 2007, an officer of the Tribunal sent the husband a letter stating that the Tribunal did not accept that “the cost of travelling from Griffith to Sydney for a hearing is a valid reason for re-scheduling your hearing and organising a video hearing”[88]. Nevertheless, because the husband had indicated that he wished to attend a hearing, the Tribunal scheduled a new hearing for noon on 30 August 2007 in Sydney[89].
[88] at [7]
[89] at [7]-[8]
At 12:15 pm on 30 August 2007, the husband again sent a fax to the Tribunal, again outlining his inability to attend for financial reasons[90]. The Tribunal decided to make its decision on the review in a manner unfavourable to the applicants without taking further action to enable the applicants to appear before it[91].
[90] at [8]-[9]
[91] at [11], [13]
At [19], Perram J said that SCAR established three pertinent propositions:
First, the invitation contemplated by s 425 must not be a hollow shell or an empty gesture: at [33]. Second, another way of putting the first requirement may be to say that the tribunal must provide a “real and meaningful” invitation: at [37]. Third, what is real and meaningful is to be objectively determined and the obligation exists whether or not the tribunal is aware of the circumstances which would defeat that obligation: at [37]. In SCAR, an invitation was held not to comply with s 425 because, unbeknownst to the tribunal, the applicant was not in a fit mental state at the time that the hearing took place.
His Honour noted that there had been some debate regarding the correctness of SCAR, but that the decision was binding[92]. His Honour accepted that[93]:
as at 20 August 2007 the appellant was financially unable to attend the hearing with the consequence that there was no real invitation given as required by s 425(1).
[92] at [20]-[21]
[93] at [27]
There has been doubt expressed by the Federal Court about the correctness of the reasoning of the Full Federal Court in SCAR[94]. As Perram J explained in SZLLY, that debate may have been rendered otiose by the introduction into the Migration Act of s.422B(3), which postdates the decision in SCAR[95]. The Full Federal Court in Minister for Immigration v SZNVW[96] (SZNVW) did not consider it necessary to decide whether to overrule SCAR since the decision in that case was considered to be distinguishable[97].
[94] see discussion by Keane CJ (as his Honour then was) in SZNVW at [31]-[32] referring to the observations of Graham J in SZFDE to the effect that the decision in SCAR was “plainly wrong”: SZFDE at [212] ff and see also SZMSF v Minister for Immigration [2010] FCA 585 at [13]-[16], referring to SZLLY (which is relied on by the applicant) at [19]-[21]
[95] see SZLLY at [22]-[24]
[96] (2010) 183 FCR 575
[97] see SZNVW at [31]-[32]
Irrespective, taken at its highest for the proposition that s.425 imposes an “objective requirement on the Tribunal … to provide a “real and meaningful” invitation … whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation”[98], and that the decision remains good law, it has never been applied to a situation where an applicant has not attended a hearing and no contact of any kind has taken place between an applicant and the Tribunal as to the circumstances.
[98] SCAR at [37]
In SZLLY, relied on by the applicant, there was considerable correspondence between the Tribunal and the applicant about the applicant’s ability (which was said to be limited for financial reasons) to attend a hearing of the Tribunal in Sydney when he lived in Griffith. His Honour accepted that as at the date of the hearing, the “appellant was financially unable to attend the hearing with the consequence that there was no real invitation given as required by s.425(1)”[99]. His Honour went on to observe that the Tribunal did not ask the applicant for any material “to make good his claimed inability to attend. It simply issued the pronouncement that his proffered reason was not a valid one … [and thus he] was not given an opportunity to make good his claim that he could not attend”. Thus the decision in SZLLY does not rely on any particular proposition about the fitness of the applicant, but is more concerned with the reasonableness of a decision made about a hearing (and invitation to attend it), in a manner somewhat analogous to the decision concerning the reasonableness of the response to the adjournment application in Minister for Immigration v Li[100] (Li) and see also Minister for Immigration v Singh[101] (Singh). As his Honour put it[102]:
[t]he reasonableness of the invitation objectively determined includes a consideration of any reasonable requests by the tribunal for a good reason to justify an adjournment and the response received from the applicant.
[99] SZLLY at [27]
[100] (2013) 249 CLR 332
[101] (2014) 231 FCR 437
[102] at [30]
There are a number of decisions raising issues about a person’s fitness to attend a hearing in which resort has been made to the Full Federal Court’s decision in SCAR.

SZNVW

The decision of the Full Federal Court in SZNVW was referred to above. In that case, this Court had set aside a Tribunal decision on the basis of evidence that was put before the Court about the applicant’s “emotional and mental state” that was not before the Tribunal. The applicant had attended the hearing and had raised his “alleged psychological impairment” with the Tribunal[103]. This Court had decided that the “Tribunal was deprived of the opportunity to assess the evidence given by” him and thus he was “denied a ‘real and meaningful’ opportunity to participate in the hearing”[104]. The Full Federal Court[105] unanimously allowed the appeal. Notably, Keane CJ pointed out that the primary judge “made no finding, and indeed on the evidence, could have made no finding, that the respondent’s psychological condition deprived him [of] the opportunity to give such evidence in support of his application as he thought appropriate”[106]. His Honour distinguished the case from SCAR on the ground that the Tribunal in SCAR was unaware of the facts establishing that the applicant there did not have a full and fair opportunity to present his case[107]. After reviewing s.425, and ss.414, 420, 422B and 424 of the Migration Act, his Honour stated[108]:
None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light.
[103] [9]
[104] at [4]
[105] Keane CJ, as his Honour then was; Emmett and Perram JJ
[106] [15]
[107] at [18]
[108] at [22]

Keane CJ concluded that the Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence at [36] and allowed the Minister’s appeal (and see also Emmett J at [48]-[50] and Perram J at [74], where his Honour reiterated that SCAR was distinguishable because the primary judge did not find that the respondent was not fit to represent himself, as was found in SCAR. Perram J noted that the question was not whether the applicant had been treated fairly but whether the process contemplated by s.425 had been “subverted” and held it had not[109].
[109] at [83]
In SZMSF v Minister for Immigration[110] (SZMSF), the Federal Court affirmed a decision of this Court which had dismissed an application for judicial review in which the appellant claimed that he had been denied an opportunity to present his case before the Tribunal by reason of his psychiatric and mental condition and also by reason of the medication he was taking[111]. Flick J noted that a psychiatrist gave evidence on behalf of the appellant, and in response, the Minister called a consultant forensic psychiatrist[112]. After noting the controversy about the correctness of SCAR, his Honour pointed out[113] that the onus remains upon a claimant to establish that he is unfit to participate in the hearing following the giving of the “invitation” guaranteed by s.425. His Honour dismissed the appeal. In the course of his reasons, his Honour stated[114]:
Whatever may be the extent to which SCAR is authority for any proposition extending beyond the “invitation” to which s 425 refers being a “meaningful” invitation, and extending also to the nature of any hearing before the Tribunal, s 425 does not require a Tribunal to press a claimant to call evidence as to whatever “psychological problems” he may seek to rely upon: SZNVW ([referring to Keane CJ’s judgment at [20]].
[110] [2010] FCA 585
[111] [4]
[112] at [4]
[113] at [17]
[114] at [20]
SZRJS v Minister for Immigration[115] (SZRJS), while not involving the mental state of the applicant, concerned a claim that the appellant had been deprived of a real and meaningful hearing by virtue of having a Muslim interpreter, when he had asked for a Christian interpreter[116]. Farrell J stated that it was common ground that to comply with s.425 the invitation to attend an oral hearing must be “real and meaningful”, whether or not the Tribunal is aware of circumstances that would defeat that obligation[117]. However, her Honour noted that to succeed on the basis of SCAR, the “applicant must be unable, not simply unfit, to give evidence, present arguments and answer questions in the course of the hearing before the Tribunal’s function will be stultified”[118]. The claim on this ground failed in SZRJS[119].
[115] [2013] FCA 682
[116] at [9]
[117] SZRJS at [16], referring to SCAR at [33] and [37]
[118] at [24] (emphasis added), referring to SZNVW at [22] per Keane CJ and [49] per Emmett J) (and see also Minister for Immigration v SZNCR [2011] FCA 369, where a similar observation was made by Tracey J at [30], when allowing an appeal by the Minister
[119] see [39]
Finally, in SZQBN v Minister for Immigration[120], Flick J, after reviewing a number of previous authorities, referred to the medical evidence before the Court (which included a letter from a psychologist, as well as a psychological assessment report from another psychologist)[121]. His Honour dismissed the appeal and stated at [48]:
On the facts of the present case, however, there is no foundation for any conclusion that the mental state of the appellant was such that he could not meaningfully participate in the Tribunal hearing. The highest the evidence rose in support of such a conclusion was the report of Dr de Teliga that the appellant was “often not capable of making rational decisions regarding his own situation”. The report of Dr Jacmon concluded that the appellant’s condition could be “diagnosed as mixed anxiety depressive disorder”.
[120] (2014) 226 FCR 68
[121] see [41]
The case does, however, contain some useful guidance that tends to support the applicant’s view that an applicant need not be strictly “unable” to appear in order to obtain relief on a SCAR ground. At [46], Flick J said:
An assessment as to whether a particular claimant has the mental capacity to meaningfully participate in a tribunal hearing is necessarily an assessment which must be made by reference to the facts and circumstances of each individual case. In Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [40] Tracey J concluded that the “evidence does not establish that the visa applicant’s condition was sufficiently serious to meet the standard required by SZNVW”. In the course of reaching that conclusion, his Honour had previously observed (at [30]):
[30] The argument focussed on what an applicant must prove in order successfully to establish a contravention of s 425 of the Act. Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.
The reference to “entirely unfit” is, presumably, a reference back to the language of the federal magistrate’s reason for decision in SZNVW v Minister for Immigration and Citizenship [2009] FMCA 1299 at [64]. Considerable reservation is expressed, however, as to whether it is necessary for a claimant to establish that he is “unfit (in the sense of being unable) to give evidence, present arguments and answers questions”. His Honour’s observations, it is respectfully considered, are not to be taken as setting forth the only circumstances in which the opportunity guaranteed by s 425 may be denied. A claimant falling short of being “unable” to give evidence and present argument may, in an appropriate case, nevertheless also be denied a meaningful opportunity to be heard. (emphasis added)
At [47], his Honour held that “an opportunity to be heard is no opportunity at all if a person is unable to meaningfully participate, be that inability due to mental capacity or other reason” (emphasis added).
It is therefore apparent that there is no authority in support of the proposition that a s.425 hearing invitation is rendered meaningless in circumstances where the applicant does not attend the hearing and does not communicate in any way with the Tribunal, for example, to seek an adjournment or to discuss any medical condition that she considers might stand in the way of her giving effective evidence. The only case raising the issue of SCAR and s.425 where the applicant did not attend and the decision was set aside is SZLLY. However, as is apparent, the applicant there sought to have the Tribunal take account of his financial difficulty, which was the subject of uncontradicted evidence[122], which he claimed prevented him from travelling from Griffith to Sydney for the hearing and had asked for a video link hearing so he could participate from Griffith.[123] That case is distinguishable from the present one.
[122] see [27]
[123] see [11]
Even if it be the case that a Tribunal decision can be vitiated in circumstances where the applicant has neither attended a hearing nor communicated with the Tribunal as to an inability to attend and participate meaningfully, there would need to be persuasive evidence of the incapacity of the applicant at the time of the hearing before the Court. Farrell J noted in SZRJS that to succeed on the basis of SCAR, the “applicant must be unable, not simply unfit, to give evidence, present arguments and answer questions in the course of the hearing before the Tribunal’s function will be stultified”[124] (referring to SZNVW at [22] per Keane CJ). Thus this Court needs to have persuasive evidence of the applicant’s inability to participate in a hearing on 12 June 2015 on which it could make findings about her medical condition at the relevant time.
[124] at [24]

Resolution

The applicant’s claim is that the Tribunal failed to comply with s.425 of the Migration Act and the particulars are that “due to her mental health at the time, the applicant was not in a fit state to represent herself before the Tribunal”. On this basis, it is said that the Tribunal’s invitation to the applicant under s.425 of the Migration Act was not a “real and meaningful invitation”.
Thus, according to the applicant, although the Tribunal was not aware of her mental state at the time she failed to attend for her hearing, through no fault of the Tribunal, its decision is “nevertheless infirm”[125].
[125] applicant’s submissions at [4]
This is said to follow from an application of the decision of the Full Federal Court in SCAR and the decision of Perram J in SZLLY to the facts of this case.
The applicant’s submissions set out some of the factual matters referred to in the applicant’s affidavit relating to her history of experiencing family violence and the applicant contends that these matters “have impacted the applicant’s mental condition and state of mind”[126]. To that end, the applicant relies on a report by Ms Howell who met with the applicant on one occasion in December 2015, and opines on the applicant’s mental state in June 2015.
[126] applicant’s submissions at 46
The applicant contends[127] that it does not matter that the Tribunal was unaware of her mental state at the time of the hearing, nor that she did not appear at the Tribunal. Nor, apparently, is the undisputed fact that she made no attempt to contact the Tribunal either to reschedule the hearing or to make representations as to her (lack of) capacity to participate in the hearing relevant to this claim. Rather, the mere fact that an applicant is “not in a fit state to represent herself before the Tribunal, regardless of whether she attends” is said to vitiate the hearing invitation issued under s.425, thereby apparently rendering the invitation meaningless and the Tribunal’s decision a nullity.
[127] applicant’s submissions at [50]-[51]
The Minister submits that this ground must also fail, as there is no authority for the proposition that a failure on the part of an applicant to attend a hearing or contact the Tribunal by any means at all can give rise to jurisdictional error on the part of the Tribunal when it goes on to make its decision in her absence, by reference to s.426A. Even if, contrary to the Minister’s primary submission on this ground, such a proposition could in an appropriate case be sustained, the evidence before this Court is said to be not capable of supporting any definitive finding about the applicant’s mental state at the time of the Tribunal hearing such that this Court could find that the invitation was in fact meaningless and the decision void (cf the Full Federal Court in SZNVW at [15]).
Ms Howell ventures the opinion that the applicant would have been unfit to attend the scheduled hearing because of a depressive illness. Dr Nielssen gave evidence that Ms Howell was not qualified to make a diagnosis and, in any event, was not, in the circumstances, in a position to make one. Further, Dr Nielssen gave evidence that the existence of a clinically significant depression does not typically prevent a person from recalling facts and events.
My own observation of the applicant in the witness box was that she was an effective witness although she appeared to become mentally tired during the course of cross-examination and lost her power of recall. Based upon her performance in court before me, I could not conclude that she was unfit to attend and give evidence. There is no contemporary medical evidence of the applicant’s condition at the time of the Tribunal hearing. The assessment of Ms Howell, while of some assistance, can be given limited weight because her observations were made significantly later. Further, although Ms Howell’s observations and conclusions were based upon her interview with the applicant, at that time, she was able to provide a fulsome history. I therefore give the opinion of Ms Howell limited weight.
I conclude that the evidence as to the applicant’s mental state at the time of the Tribunal hearing is not sufficiently conclusive to establish this ground. The applicant’s general circumstances, while unfortunate, were unknown to the tribunal, so it could not consider them.
I nevertheless accept from the applicant’s evidence that at the time of the Tribunal hearing, she had left the family home in circumstances of family violence and was living in very difficult circumstances in a refuge. Her emotional state must not have been good and evidence obtained by counsel for the Minister in cross-examination of her establishes that her energies were significantly directed to obtaining some means of support and the provision of food.
Further, in my opinion, the second ground, while not established, supports the first ground. At the time of the Tribunal hearing, the applicant was distressed and in distressing circumstances. Had the Tribunal known of those circumstances, that knowledge would have borne significantly on the Tribunal’s exercise of discretion under s.426A. The applicant was deprived of the opportunity to explain those circumstances to the Tribunal because of the conduct of Ms Leveni. The Tribunal was deprived of the opportunity to consider those circumstances because of that same conduct. Accordingly, while the second ground is not established, it supports my finding on the first ground that the Tribunal’s review function, and in particular, the exercise of its discretion under s.426A, was disabled by the conduct of Ms Leveni.

Conclusion

The applicant has established that the decision of the Tribunal was vitiated by jurisdictional error. She should receive the relief she seeks in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 1 August 2016

AMENDMENTS:

Three references to “representative” in the catchwords has been changed to “recipient”.