Cok17 v Minister for Immigration
[2020] FCCA 983
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COK17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 983 |
| Catchwords: MIGRATION – Visa – protection visa – whether fraudulent conduct of third party stifled operation of natural justice hearing rule – whether constructive failure to exercise jurisdiction – writs issued. |
| Legislation: Migration Act 1958 (Cth), s.281 Evidence Act (1995) (Cth), ss.60, 63 |
| Cases cited: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 |
| Applicant: | COK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 220 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 17 September 2019 |
| Date of Last Submission: | 30 September 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Gray QC & Mr P Dean |
| Solicitors for the Applicant: | Diaspora Legal |
| Counsel for the Respondents: | Mr G Johnson by videolink |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The name of the first respondent is amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
There be an order in the nature of certiorari that the decision of the Administrative Appeals Tribunal dated 17 May 2017 affirming the decision of the delegate of the first respondent made on 30 May 2016 rejecting the applicant’s application for a Protection (Subclass 866) Visa is quashed.
There be an order in the nature of mandamus that the Administrative Appeals Tribunal review according to law the decision of the delegate of the first respondent dated 30 May 2016 rejecting the applicant’s application for a Protection (Subclass 866) Visa.
The first respondent do pay the applicant’s costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 220 of 2017
| COK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter is an application for judicial review in relation to a decision of the Administrative Appeals Tribunal (‘the AAT’) dated 17 May 2017 which confirmed an earlier decision it had made on 2 May 2017 dismissing the applicant’s application for a protection visa. That earlier decision dismissed the applicant’s application because she did not attend for the hearing before the AAT which had been scheduled for her to present evidence and arguments on a merits review of an earlier decision of a delegate of the Minister.
On 17 September 2019, I gave leave to the applicant to proceed on an amended ground. That ground is as follows:
“The applicant was denied natural justice as provided for in the Migration Act 1958 (Cth) such that the jurisdiction of the Tribunal had not been exercised according to the relevant statutory provisions.”
The first respondent was on notice of the applicant’s intention to make such an application and did not oppose the granting of leave to amend. Accordingly, the central issue raised by the applicant is whether the conduct of a purported migration agent, Ms X[1], was fraudulent conduct stifling the operation of the natural justice hearing rule provided for in the Migration Act 1958 (Cth) (‘the Act’) to the extent that the jurisdiction of the Tribunal was not exercised.[2]
[1] I have redacted the name of this person. She was not called to give evidence and whilst she did not co-operate with the enquiries of the applicant’s solicitor, I am conscious that she has not had the right of reply.
[2] Applicant’s Outline of Submissions, [2].
The applicant relied on the material in the Court Book; the Affidavit of Ms Debrah Maria Mercurio dated 29 May 2019; and her own Affidavits of 28 May 2019 and 7 June 2019. In addition, the applicant gave very brief evidence-in-chief and was cross-examined in relation to her affidavits.
Background
The applicant is approximately 33 years of age, a citizen of Malaysia and ethnically Chinese. She has a mother, father, brother and son who continue to reside in Malaysia. She attended school until the age of 12. The applicant arrived in Australia in October 2012 and on 29 January 2013 became an unlawful non-citizen. She made her application for a protection visa on 14 January 2016. The applicant married in 2002 at the age of 16 to a man who is 10 years older than her. She commenced work in 2003 in a manufacturing business. She separated from her husband in October 2012 and arrived in Australia 3 days later. The applicant claimed protection on the basis that she feared for her life if she were to return to Malaysia because of domestic violence she had suffered at the hands of her husband. She claimed that her reports to police were not acted on because domestic violence was a common occurrence in Malaysia and they were not able to assist because they did not have sufficient resources.[3]
[3] Court Book (‘CB’), 39.
A delegate of the Minister refused the application for the protection visa on 30 May 2016.
After the delegate’s refusal, the applicant engaged the services of Ms X and a company called Lucky Star Pty Ltd.
From this point in the narrative, it becomes necessary to refer to the Affidavit and the cross-examination of the applicant.
Affidavit evidence and cross-examination of the applicant
The applicant states that when her application was refused by the delegate, it was suggested to her by friends that she engage the services of an agent that they themselves were using. The person they mentioned was Ms X and it was suggested to the applicant that Ms X would be able to assist her in making an application for review to the AAT. She was told by her friends that Ms X was a lawyer.[4] She says that she corresponded with Ms X by email and post, as well as speaking to her on the telephone. After making contact with Ms X by telephone, she received by email a bundle of materials from Good Fortune Company which provided documents for her to sign including a document which purported to be a ‘Power of Attorney’. That document was in the form of instructions to apply for a protection visa and stated that in the event that at least a bridging visa was not obtained, fees would be refunded.[5] She understood that Ms X’s office was in Sydney. Ms X requested $2,300 and the applicant paid that amount into an account in the name of a company called Lucky Star Pty Ltd.
[4] Exhibit A1, [12].
[5] Exhibit A2, Applicant’s affidavit filed 7/6/2019 [5].
The applicant says that she was informed by Ms X she had made an application to the AAT on her behalf. However, she states that she was never shown a copy[6] of the application that appears in the Court Book. She states that the email address given in the section relating to the applicant is not her address but Ms X’s. Further, the mobile phone number is also Ms X’s number.[7] The applicant says that she was told about the hearing date in the AAT by Ms X in the course of a telephone call. She was informed of this apparently one week prior to the hearing date and that she should attend and answer any questions.[8] The applicant says that she was not told by Ms X that the hearing “was where a decision would be made, or that my attendance was critical”.[9]
[6] CB, 75.
[7] Exhibit A1, [16].
[8] Exhibit A1, [17].
[9] Ibid.
The day before the hearing the applicant says that she called Ms X and told her that she was unwell and would not be able to attend the next day. She claims to have had fever and flu like symptoms. The applicant said that she told Ms X:
“Do I really have to go? Is it important?”
The applicant says Ms X told her it was not necessary that she attend if she was sick and that Ms X would handle the problem. That is the reason that she did not attend.
An important part of the applicant’s case is that she says that Ms X invited her to sign blank documents. With respect to the application in this Court, the applicant says as follows:
“At that time she sent me by post documents to sign. I don't recall exactly which documents. She had previously also sent me blank or incomplete documents to sign but with just a cross for where I should sign. I am looking at the affidavit in these proceedings filed 13 June 2017. I cannot recall whether I ever saw that document before seeing it in the court book. Page I0 of the Court book the document appears to bear my signature, but I do not recall signing it. I was not in Auburn on 2nd May 2017 and I have never met or been in the same room as Ms X. I do not know any XUAN ZUO. I did not lodge the application for judicial review, by fax or otherwise. The fax number on the top of the pages is that of Ms X. The email address [email protected] is not my email address and never has been.”[10]
(Re-produced verbatim)
[10] Exhibit A1, [19].
The applicant accepts that the signature at page 4 of the Application for Judicial Review is her signature and that she also signed the annexure to the application setting out the grounds of application.[11] However, she says with respect to the signature on the application document, that she signed it before any of the writing of the page had been filled in. She said that the other writing on the page is not hers. She notes that she does not require a Mandarin interpreter. Her evidence is that she had not seen the grounds of application annexed to the Initiating Application before she had seen it in the Court Book. As to the grounds to the application pleaded, she agrees she was sick on the relevant day but that she expected Ms X to inform the AAT about that.
[11] CB, 5 & 7.
The applicant deposes that Ms X told her that she would make an application to this Court on her behalf and requested a further $1,700 from her. She does not say when she was told this. She says that she was not provided with a copy of the letter sent by the Tribunal to Ms X notifying them of its decision to dismiss the application for non-appearance or the letter from the Tribunal to her notifying her of the dismissal decision, the information sheet about dismissal decision, or a copy of the decision record in relation to the dismissal decision.[12]
[12] Exhibit A1, [22].
Further, she says that she was never made aware that it was possible for her to reinstate her application to the AAT after the matter was dismissed on 2 May 2017. The notification of dismissal of the Tribunal application for review, dated 2 May 2017, and details of the reinstatement application process appear to have been sent directly to Ms X as was the notice of confirming that decision.[13] The decision affirming the decision to dismiss the application stated as follows:
“STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 May 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 2 May 2017 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
[13] CB, 98-108.
DECISION
5.The Tribunal confirms the decision to dismiss the application.”[14]
[14] CB, 108.
She says that she was not specifically aware that an application had been made to this Court on 13 June 2017, although she knew that Ms X was going to make an application at about that time. She states that at all relevant times she believed Ms X to be a lawyer.
It should be noted at this point that the Initiating Application filed in this Court purports to have been signed on 2 May 2017,[15] whereas the decision which was the subject of the review was not made until 17 May 2017.[16]
[15] CB, 5.
[16] CB, 3.
Annexed to her affidavit are documents that purport to show that Ms X is not a registered migration agent, that she is a JP in New South Wales and that her name does not appear on a register of solicitors in New South Wales. In addition, the applicant annexes a copy of a current and historical company extract from Lucky Star Pty Ltd which indicates that Ms X was both the Director and Secretary of the company. Finally, the applicant’s affidavit annexes a copy of a decision record of the Migration Agent’s Regulatory Authority dated 11 March 2013 with respect to Ms Weiming Quam, the owner of Good Fortune Co.
In evidence-in-chief, the applicant indicated that in 2016 she regarded her English as being “ok”. When she communicated with Ms X, she did so in Mandarin, which was her first language.
In cross-examination, the applicant confirmed that in 2016, when she made her application for a protection visa, she did so by consulting internet resources, that no-one else assisted her in completing that application, and that she had found out about protection visas from one of her friends. She agreed that she had said in her affidavit that one of her friends had told her that Ms X was a lawyer. She said that Ms X suggested to her that she could apply to the Tribunal once her visa application was refused. Ms X asked her for some money and then confirmed that she had made an application to the Tribunal on the applicant’s behalf. She agreed that she wanted Ms X to make the application and that she had been informed that Ms X had done so. The applicant agreed that she had been informed that the AAT had invited her to go to a hearing and that Ms X actually told her to go to the hearing. She agreed when the topic was put to her in a different way that Ms X had not told her at that stage not to go to the Tribunal hearing. Her evidence was that if she had not been sick on the day of the Tribunal hearing, she would have gone to it. She was not certain if she would have gone to the Tribunal if she had not spoken to Ms X. The applicant said that she was not sure what Ms X would do when she told her that she would handle the problem. However, she thought that Ms X was a lawyer and that she would know what to do. The applicant agreed that Ms X did not stop her from attending at the hearing.
The applicant’s evidence was that after the decision had been made by the Tribunal, she spoke with Ms X about what to do next and she signed a series of documents. Her evidence as to how she came to sign those documents was not entirely clear but in general terms it seems she was saying that she had signed where necessary on all of the documents that had been provided to her, but that she had not seen any of the documents that were ultimately filed in this Court in their completed form before signing them. She said that Ms X did not tell her that the AAT had rejected her claim. She was simply told that the next step was to pay money to this Court. She claimed not to have asked Ms X what she was intending to put into the court documents.
The applicant claimed in evidence that Ms X had told her on the telephone that she was a lawyer. When it was put to her that she had not mentioned this in her affidavit, she said that she had been told by her friends that Ms X was a lawyer and that she had later spoken to her on the telephone at which time she confirmed that she was in fact a lawyer. She was not able to provide any explanation as to why she did not include that information in her affidavit.
Affidavit of Debrah Maria Mercurio
With the permission of the applicant, Ms Mercurio, who was assisting the applicant through JusticeNet SA, contacted Ms X on the number that appears on the various documents in the Court Book. Her evidence is that once Ms X was told who it was that Ms Mercurio was enquiring about, she became uncooperative. The person who was apparently Ms X denied that she had ever acted for the applicant and said that both she and ‘Kelly’ were simply friends of the applicant.
Submissions
The applicant submits that the conduct of Ms X in representing herself to the applicant as a migration agent and solicitor, and failing to tell the applicant of the importance of attending the Tribunal hearing of 2 May 2017,[17] was sufficient to properly be regarded as fraudulent conduct of the kind identified in SZFDE v Minister for Immigration and Citizenship.[18] It was submitted that this amounted to clear evidence of fraudulent conduct. The end result was that she was denied procedural fairness and prevented from giving evidence or presenting arguments, including any matters that might not have been raised before the delegate. In the event that her argument as to fraud was accepted, the applicant identified two errors on the part of the delegate, which she contended showed that decision to be unreasonable. This was to demonstrate that it would not be futile to remit the matter for rehearing.
[17] Applicant’s outline of submissions, [44.1]-[44.5].
[18] (2007) 232 CLR 189.
The first respondent submits that the conduct of Ms X has not been established to have involved fraud of any kind, let alone of a kind that gave rise to jurisdictional error on the part of the Tribunal. What cannot be proven, on the first respondent’s submission, is the essential element of dishonesty required for the applicant’s contention to succeed.[19] It was conceded that if there had been fraud of the relevant kind, the jurisdiction of the Tribunal would have been stultified.
[19] Ibid; SZMG v Minister for Immigration & Citizenship [2009] FCAFC 67 [22].
Consideration
I will commence with some findings of fact. I find that the following matters occurred:
a)The applicant prepared and submitted her own visa application.[20]
[20] CB, 11-46.
b)The applicant contacted Ms X at the suggestion of friends after the Delegate refused the application.[21]
[21] Exhibit A1, [12] & [15].
c)Her friends told her that Ms X was a lawyer.
d)Having contacted Ms X, by telephone, the applicant paid an amount of $2,300 to a company called Lucky Star Pty Ltd at the direction of Ms X. Documents as annexed to Exhibit A2 were forwarded to the applicant by email.
e)Ms X told the applicant at the time of their telephone contact that she was a solicitor.[22]
[22] Applicant’s oral evidence.
f)Ms X told the applicant that she had made an application to the AAT on her behalf.
g)The Application was filed by Ms X and Ms X’s mobile phone number and email address were used as contact details for both herself and the applicant.[23]
[23] CB, 75-76.
h)Ms X did not provide a copy of the AAT application to the applicant.[24]
[24] Exhibit A1, [16].
i)Ms X told the applicant about the 2 May 2017 hearing date over the telephone about 1 week before the hearing.[25]
[25] Ibid, [17].
j)The AAT sent both the letters addressed to Ms X and the applicant in acknowledgement of the application to Ms X via her email address.[26]
[26] CB, 77-80.
k)Both the letters to Ms X and the applicant inviting the applicant to attend the hearing were sent to Ms X’s email address.[27]
[27] CB, 89-92.
l)No ‘Response to Hearing invitation – MR Division’ Form was provided by Ms X to the AAT. No written submissions or other materials were submitted to the AAT in advance of the hearing.
m)When Ms X advised the applicant of the 2 May hearing she told her to attend and answer any questions, describing it as a simple hearing.[28] She was not advised that her attendance was critical.
[28] Exhibit A1, [17].
n)On the day before the hearing the applicant rang Ms X and told her that she was sick. She asked Ms X if she really had to attend and whether it was important.[29] Ms X told her that it was not necessary to attend if she was sick and that she would take care of it.
[29] Ibid, [18].
o)Neither the applicant nor Ms X attended before the Tribunal on 2 May and there is no evidence that Ms X made any attempt to contact the AAT to advise that the applicant was sick.
p)Sometime after that phone call, Ms X sent the applicant, via post, some documents to sign. The applicant cannot recall what the documents were. Ms X had previously sent her blank and incomplete documents to sign and she had signed them.
q)The applicant was not advised of the dismissal of her application on 2 May or of the reinstatement procedure. The relevant documents advising of the dismissal and reinstatement procedure were sent to Ms X’s email address. The applicant sent Ms X a further $1,700 at her request.
r)With respect to the documents filed in this Court, the affidavit, in support of the Initiating Application bears the applicant’s signature. It purports to have been signed in Auburn. The applicant has never been to Auburn. The applicant cannot recall having seen the affidavit before.
s)The affidavit purports to have been signed on 2 May 2017, the day of the Tribunal hearing. The applicant did not have personal contact with Ms X on that day. The applicant has never met or had personal contact with Ms X.
t)The applicant signed both the application to this Court,[30] and the annexed page headed ‘Grounds of Application’,[31] but when she signed that page it was blank.
[30] CB, 5.
[31] CB, 7.
u)Enquiries made by the applicant suggest that Ms X is not a registered Migration Agent, and is not a solicitor in New South Wales (‘NSW’) but that a person with the same name is a Justice of the Peace in NSW.
v)Ms X was at the relevant time a Director of Lucky Star Pty Ltd. Good Fortune Company was a registered business name held by a person named Weiming Qian.
w)On the 16 July 2018, the solicitor for the applicant called Ms X on the mobile number indicated on the documents I have referred to above. Ms X was not forthcoming with information. The conversation in part went as follows:
(The solicitor refers to herself as ‘me’ in the transcript)
“Me:What happened with the hearing at the AAT?
Ms X:I don’t know.
Me:You were acting for [the Applicant] though, weren’t you?
Ms X:No, I was just a friend.
Me:But [the Applicant] paid you, didn’t she?
Ms X:I don’t know.
Me:You don’t know? Did you get any SMS notifications from the AAT?
Ms X:No.
Me:You helped [the Applicant] with her judicial review application. Did you come to Adelaide or did she come to Sydney?
Ms X:I don’t know.
Me:Have you been to Adelaide before?
Ms X:No.
Me:What about Kelly? She was working on the file too, wasn’t she?
Ms X:Yes, but she is also a friend.
Me:I would like to speak to her too. Can you please give me her number?
Ms X:I will get her to call you.
Me:I am just trying to clarify what is going on to see if we can assist with [the Applicant’s] Court case.”
x)The first respondent did not object to the affidavit of the applicant’s solicitor deposing to the conversation with Ms X. In its written submissions the observation was made that the conversation is hearsay. I take the view that the conversation is admissible for non hearsay purposes and by virtue of s 60 of the Evidence Act (1995) (Cth) (‘the Evidence Act’). I am further of the view that the evidence is admissible pursuant to s 63 of the Evidence Act which makes an exception for first hand hearsay in civil proceedings in circumstances where the maker is not available. I am prepared to draw the inference that Ms X has made herself unavailable to the applicant’s solicitor by virtue of: her reticence in providing useful information when Ms Mercurio requested it; her failure to facilitate the call to the person referred to as ‘Kelly’; her failure to contact the applicant’s solicitor to confirm that she had attempted to facilitate that call or otherwise provide Kelly’s phone number when it must have been apparent to her from the nature of the phone call that Ms Mercurio was making enquiries of importance to the applicant.
The inferences drawn from the phone call will be discussed later in these reasons.
It is to be accepted as well established that third party fraud is capable of stifling the operation of the natural justice provisions in Division 4 Part 7 of the Act.[32]
[32] SZFDE.
In SZFDE a rogue, posing as a registered migration agent, acted fraudulently in his dealings with an applicant to the Tribunal, extracted money under false pretences, dissuaded the applicant from attending at the Tribunal hearing by dishonestly asserting that such hearings were a sham and did so in order to prevent the discovery of his offending contrary s 281 of the Act.[33] The High Court in discussing fraud in public law concluded that the Tribunal decision in question must actually be induced or affected by the fraud.[34]
[33] Section 281, restriction on charging fees for immigration assistance.
[34] Ibid.
Whilst the decision of applicant SZFDE not to appear before the Tribunal was consciously made, it was as a result of the fraudulent conduct of a third party, the rogue. It was immaterial that neither the applicant nor the Tribunal was aware of the ulterior fraudulent motives of the rogue. The Court held:
“[31] The importance of the requirement in s 425 that the tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.
[32]An effective subversion of the operation of s 425 also subverts the observance by the tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.”
The Court concluded;
“[51] No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the tribunal.
[52]The consequence is that the decision made by the tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. …”
Subsequent cases have emphasised the need for the fraud to be operative on the Tribunal’s exercise of its jurisdiction. One such case relied on by the first respondent is Minister for Immigrationand Citizenship v SZLIX.[35] The Full Court held:
“… 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. 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…”
Similar observations have been made in other cases.[36]
[35] (2008) 245 ALR 501 [33].
[36] SZIVK v Minister for Immigration and Citizenship [2008] FCA 334; SZMWT v Minister for Immigration and Citizenship (2009) 109 ALD 473.
The first respondent submits that there is insufficient evidence in Ms X’s conduct to warrant a conclusion that she acted fraudulently towards the applicant and that in any event Ms X was not called to corroborate or deny such a serious allegation.
Based on the findings I have made, I am satisfied that Ms X’s conduct towards the applicant was fraudulent. I regard Ms X’s conduct as more than a mere inadvertent or negligent failure to notify the Tribunal of the applicant’s illness, seek an adjournment, or apply to reinstate the proceedings. I am prepared to draw the inference that Ms X did not attend before the Tribunal or contact it on 2 May 2017 because she was dishonestly not acting in the best interests of the applicant and was acting to conceal her own involvement in the matter because she was not a solicitor or registered migration agent. I have reached that conclusion for the reasons set out below.
It can be inferred from the telephone conversation with Ms Mercurio that Ms X was not acting as either a solicitor or migration agent for the applicant. She said as much herself when she claimed to be only helping the applicant as a friend. This was contrary to the representations she made to the applicant. She charged the applicant $2,300 for doing no more that filing the application in the AAT. In doing so, she extracted money from the applicant by false pretences. The pretence was first, that she was a solicitor and secondly, and as a concomitant of the first, that she would act in the applicant’s best interests as her representative. Her conduct in doing so was also contrary to s 281 of the Act. Ms X’s lack of cooperation with Ms Mercurio’s enquiries when viewed in the context of her failure to do anything on 2 May 2017, or by way of applying for reinstatement to “take care of things” on behalf of the applicant. She mislead the applicant because her promise to take care of things must clearly have been intended to convey to the applicant that she would do so in the context of the Tribunal hearing, not that she would ignore the fact of the hearing and proceed straight to judicial review in this Court.
Further, it is clear from the document relied on by the applicant that Ms X had no intention of attending personally before the Tribunal on behalf of the applicant.[37] Had she ever intended to do so, she would have had all the more reason to attend knowing that the applicant could not attend. That the documents provided to the applicant specifically stated in advance that the applicant would not be represented at the Tribunal hearing is itself irregular given the fee charged. When considered with the fact that no supporting documents at all were filed by Ms X on behalf of the applicant once the initial application had been made, the inference that the applicant had been the victim of a scam becomes stronger. Ms X’s failure to even contact the Tribunal on behalf of the applicant of itself supports an inference that she was not intent on acting in the best interests of the applicant. Her evasiveness when speaking to Ms Mercurio supports an inference that she knew very well that she had an irregular financial relationship with the applicant. Her claim to Ms Mercurio that she was only helping the applicant as a friend is inconsistent with the demands for payment from the applicant. I am satisfied that Ms X was either trying to conceal her role from the AAT even though she had placed her contact details on the application and received correspondence from them or that she was intent on using the applicant’s failure to attend as an opportunity to extract further funds from her. The filing fee for migration applications in this Court at the relevant time was $615. Her later subterfuge in filing documents in this Court is consistent with such a motive. The documents were filed in the applicant’s name and made no reference to Ms X except as the justice of the peace witnessing the supporting affidavit. The documents were also false, bearing a date prior to the subject decision and purporting to have been signed in Auburn, a place the applicant has never visited.
[37] Exhibit A1.
I am satisfied that the Tribunal’s Division 4, Part 7 natural justice provisions have been stifled by fraudulent conduct of Ms X towards the applicant, causing the Tribunal to be prevented from discharging its’ statutory function to conduct a review. This is so because it was as a result of the dishonest conduct of Ms X in her purported carriage of the proceeding on behalf of the applicant that no adjournment was sought and no reinstatement application made. I regard this as more than a case of bad advice or negligent handling of the application before the AAT.
Given the matters identified by the applicant as pointing to the unreasonableness of the Delegate’s decision, I am not able to find that to return this matter to the Tribunal for further hearing would be futile. I am satisfied that the applicant has demonstrated jurisdictional error.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 1 May 2020
0
4
3