J&C Blinds & Shutters Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 471
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
J&C Blinds & Shutters Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 471
File number(s): BRG 405 of 2022 Judgment of: JUDGE EGAN Date of judgment: 6 June 2023 Catchwords: MIGRATION – where unregistered migration agent failed to allow the applicants to properly appear before the Tribunal for the purpose of their giving evidence and presenting arguments – where actions of unregistered migration agent caused the exhaustive statement of natural justice hearing rule principle to be rendered nugatory - where decision of Tribunal at law was regarded as being no decision at all – application granted – decision of Tribunal quashed Legislation: Migration Act 1958 (Cth) ss. 140GB, 360, 357A, 425, 283. Cases cited: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
Nathanson v Minister for Home Affairs [2022] HCA 26
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64.
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 26 May 2023 Date of hearing: 26 May 2023 Counsel for the Applicant: Mr R Lake Solicitor for the Applicant: Park & Co Lawyers Counsel for the First Respondent: Ms C DeMarco Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
BRG 405 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: J&C BLINDS & SHUTTERS PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
6 June 2023
IT IS ORDERED THAT:
1.The time for the filing of the Originating Application for Review be extended to 26 September 2022.
2.The Originating Application filed on 26 September 2022 be granted
3.The decision of the Administrative Appeals Tribunal made on 22 July 2021 be quashed
4.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
5.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 22 July 2021
6.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review, fixed in the amount of $8,371.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant company sought the Minister’s approval of the applicant’s nomination made under s. 140GB of the Migration Act 1958 (Cth) (the Act) for a sub class 457 visa in respect of a visa applicant named Kim.
A delegate of the Minister refused to grant the nomination application and an accompanying visa application made on behalf of Mr Kim on the basis that the delegate was not satisfied that the nominated occupation was genuine. The applicant and the visa applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decisions of the delegate.
On 18 February 2021, the applicant company and the visa applicant were sent an invitation via email to attend a hearing before the Tribunal on 8 March 2021. That email was sent to the email address of a person who had previously purported to act on behalf of the applicants, such email address being email address A “[redacted]”. On 10 March 2021, a non-appearance decision was made by a Tribunal member by reason of the non-appearance of the applicant and the visa applicant at the joint hearing before the Tribunal on 8 March 2021.
On 20 April 2021, an email was sent from email address B “mailto:[redacted]” to the Tribunal annexing a letter from Mr Kim dated 19 April 2021 and a letter on J & C Blinds letterhead dated 20 April 2021. Each letter advised that neither Mr Kim nor the applicant company had received notice of any hearing scheduled to take place before the Tribunal on 8 March 2021. In the J & C Blinds letter, it was recorded that Mr Chai could be contacted at a nominated mobile number as well as at email address B [redacted] That email was sent by one Mr Lee who had represented himself to the applicants as being a registered migration agent.
After those representations had been made on behalf of the applicant and the visa applicant to the effect that they had not received any notice of the 8 March 2021 hearing date because the email invitation had been sent to an incorrect email address – namely email address A “[redacted]” instead of correct email address C “mailto:[redacted]” - the matter was reopened by the Tribunal and an invitation to attend a joint hearing before the Tribunal on 17 May 2021 was sent to each of the applicant and the visa applicant. The invitation was sent to the correct email address C “[redacted]”. [1]
[1] See email and letter at Court Book (CB) pp. 85 - 89
On 17 May 2021, the applicant’s director Mr Chai and the visa applicant named Kim appeared before the Tribunal carrying bundles of documents in the hope that those documents might be received and considered by the Tribunal. Appreciating that the applicants would need time to develop arguments in respect of such further material, it was fairly indicated by the member that after the Tribunal member had had an opportunity to read such documents, a new hearing date invitation would be sent out. Documents were forwarded to the Tribunal by the applicant’s representative by an email dated 19 May 2021 pursuant to the request of the Tribunal in that regard.[2] It is of note that the documents were sent from the email address which was email address B “[redacted]”.
[2] See email at CB p. 106.
The relevant history given by the applicants as to how correspondence was sent to and from the Tribunal was convoluted and confusing, but relevantly unchallenged. In his affidavit filed on 26 September 2022, at [8] – [45], Mr Chai affirmed as follows:
“[8]On 16 September 2018 J&C Blinds applied to the AA T for review of a decision made by a delegate on 16 August 2018 refusing J&C Blinds' nomination application for Mr Kim.
[9]I am now aware that on 18 February 2021 the AAT invited J&C Blinds to attend a hearing on March 2021. Neither I nor any authorised person from J&C Blinds knew of the hearing nor attended the hearing. As set out in the AAT's reasons dated 22 July 2021 (at [17]), there was an error in the email address that the AA T had used. As a consequence, the AA T reopened the proceedings and issued an invitation to a hearing on 17 May 2021. I was unaware of the correspondence relating to this.
[10]On 17 May 2021 the AAT held a hearing that I attended in person along with Mr Kim. That hearing was adjourned. I describe the circumstances of this hearing below in paragraphs [25] to [31].
[11] On 19 July 2021 the AA T resumed its hearing. I was not aware of this hearing and did not attend. Three days later the AAT made the decision that is the subject of this judicial review application.
ENGAGEMENT OF MIGRATION AGENT
[12] I came to Australia in 2009. I used Hansol Migration (Hansol) for my migration services. I found out about Hansol through my brother John.
[13] My contact at Hansol was Kyung Jun Lee (Mr Lee), also known as Kevin Lee. I met him once personally back in 2011 for my own visa matter. Since then, I have not met him physically as everything was handled electronically.
[14] I am not aware of any individual named Hee Kyoung Kim, or anyone else in the employ of Hansol Migration other than Mr Lee, who would be managing my matter.
[15] Mr Lee also handled my sister's visa and permanent residency, as well as migration matters for my cousin and a friend. To the best of my knowledge those matters were handled successfully. Because I am busy running J&C Blinds and because I believed that Mr Lee was a professional I relied on his advice and complied with his requests and suggestions.
8 MARCH 2021 HEARING
[16] In March 2021 I was aware that Mr Kim was taking time off to attend a hearing for his visa application. I recall being aware afterward that his visa had been refused, but cannot recall the reasons.
[17] At no time did Mr Lee tell me that I, on behalf of J&C Blinds, should attend the 8 March 2021 hearing.
20 APRIL 2021 LETTER
[18] On 20 April 2021 I received an email from Mr Lee that said that the tribunal wanted a company letter forwarded. The email attached a letter and asked me to send it back after signing it. The email said that the company email that was notified to the Department was email address B “[redacted]” (the Gmail address). His email also said that the Gmail address was created for visa purposes; that I must tell the Department that was the company contact details, and that if a different email address were used the truthfulness of the information provided could be questioned. Annexed as SC2 is a copy of the original and a translation of that email.
[19] My brother John uses the email address B “[redacted]”.
[20] I recall that I amended the letterhead on the letter to make it the correct J&C Blinds letterhead. I think I probably read the letter. I signed the letter and sent it to Mr Lee. Annexed as SC3 is a copy of the signed letter.
[21] The phone number 0424 854 847 on the letterhead and in the body of the letter is my personal mobile. The email address D “redacted” (the J&C info email) is a legitimate email for J&C Blinds. I do not have access to that email address, but an employee of J&C Blinds does.
[22] I am now aware that at 12:54 pm on 22 April 2021 an email from sent from the AAT to the J&C info email, as well as to the Gmail address. The email was addressed to me and referred to an authorised recipient named Hee Kyoung Kim. I do not actively monitor the J&C info email; rather the administrative staff at J&C monitor the incoming emails and refer them to me personally when relevant. On 22 April 2021, I believe that there was an error on our end, as I was not notified by the administrative staff who had access to the J&C info email at the time. Annexed as SC4 is a copy of the email.
[23] From materials obtained under an FOI request in May 2022 (the FOI materials), I saw that an email was sent from the Gmail address to the AAT at 1.10 pm on 22 April 2021. Until I saw the FOI materials I was unaware of that email. Annexed as SC5 is a copy of the email.
[24]At 9.48 am on 23 April 2021 an email from sent from the AAT to the J&C info email, as well as to the Gmail address. I believe that the email was forwarded to me by the employee who monitors the J&C info email, but do not have a clear or accurate memory of it. The email said that the matter was finalised and that the AAT would no longer correspond. Annexed as SC6 is a copy of the email.
MAY 2021 HEARING
[25] On 6 May 2021 I received an email from Mr Lee that said the next hearing date was 17 May 2021 at 1.30 pm. The email was sent to my personal email address at J&C Blinds, being email address E “[redacted]”. The email was copied to Mr Kim. The email also said that Mr Lee would contact me next week to practice for the hearing. Annexed as SC7 is a copy of the original and a translation of that email.
[26] Mr Kim and I attended the review hearing at the AAT on 17 May 2021 in person. I expected Mr Lee to be present but he was not.
[27]During the hearing I realised that Mr Lee was not the official representative because the Member asked who our representative was.
[28]Mr Kim had prepared further documents to support the AA T matters, which I had checked. I had asked Mr Kim to provide all supporting materials to Mr Lee to be lodged to the AAT. We attempted to provide those documents to the Member. However, the Member said that it was not compliant with their practice direction...and ordered to lodge them correctly.
MRS Forms
[29] After the hearing was adjourned, someone but I don't recall who, gave me and Mr Kim blank MRS forms to be filled in and submitted.
[30] After the hearing and while driving back to the office we called Mr Lee to confirm how to prepare the Form MRS. Mr Lee told us to each individually sign a blank copy of the Form MRS and provide it to him.
[31] When we returned to the office, Mr Kim and I each signed the forms. To the best of my understanding Mr Kim then scanned the forms and sent them by email to Mr Lee.
[32]I first saw the FOI materials in late May 2022 at Park & Co Lawyers' office. In the FOI materials was a completed MRS form for J&C Blinds. Annexed as SC8 is a copy of the completed form.
[33] I confirm that the signature on the second page of the completed form in the box marked '(Applicant)' is my signature made on 17 May 2021.
[34] The signature in the box marked '(Representative/authorised recipient)' looks like my signature but I did not ever sign in that box. I also did not write in the date box to the right of the signature box.
[35] I have seen an MRS form in the name of Eui Sik Kim that purports to bear my signature as '(Representative/authorised recipient)'. I did not ever sign that form or write a date on that form. Annexed as SC9 is a copy of that form.
19 JULY 2021 HEARING
[36] The AAT reasons show that on 25 June 2021 it sent an invitation to J&C Blinds and Mr Kim to attend a joint hearing on 19 July 2021. The email attaching the invitation was sent only to the Gmail address. I only became aware of the email after an FOI application in May 2022. Annexed as SC10 is a copy of the email and invitation letter.
[37] I was not aware before 19 July 2021 that there was a hearing on that day, and only became aware when the material from the FOI application was produced in May 2022.
[38] I did not attend the 19 July 2021 AAT hearing.
16 AUGUST 2021 HEARING
[39] On 16 August 2021 Mr Kim and I were at the J&C Blinds office when he received a call from the AAT. Because I was present, Mr Kim switched to speaker phone. I do not remember the conversation in full.
[40] I recall that I told the AA T member that I was not the authorised representative or recipient as they had understood, but that I was the director of J&C Blinds, Mr Kim's proposed nominator. The Member told us that it had already affirmed the Department's refusal of J&C Blinds' nomination application. I told the Member that I had no idea as to this scheduled hearing, nor did I have any knowledge regarding the AAT's affirmation of the Department's refusal of J&C Blinds' nomination application.
[41] Immediately after the hearing on 16 August 2021, I was with Mr Kim when he called Mr Lee. Mr Lee said to us words to the effect that there must have been a mistake on the part of the AAT, that he could fix it, and that we should simply wait for further contact from the AAT.
POST 16 AUGUST 2021 HEARING
[42] After the August 2021 hearing I was aware that Mr Kim was contacting Mr Lee regularly. When I would ask Mr Kim what was happening, he would tell me that Mr Lee was awaiting a reply From the AAT. We were informed that because of COVID-19, our matters were delayed.
[43] Because J&C Blinds gets very busy towards the end of the year I paid less attention at the end of 2021.
[44] Sometime in early 2022 Mr Kim told me that he had heard that Mr Lee had had his licence cancelled.
[45] Mr Kim and I went to see Park & Co Lawyers some time in April 2022.”
In his affidavit filed on 1 October 2022, at [4] – [38], Mr Kim affirmed as follows:
“Engagement of migration agent
[4] I first arrived in Australia with a visitor visa on 8 April 2015. Within a couple of months of arriving in Australia, I was able to find a sponsor in J&C Blinds, who hired me to work here in Australia.
[5] I continued to use Hansol for my migration matters. I did so because of my experience with them, and also the experience of other Korean people who told me that Hansol had been successful in getting their visas and permanent residency. Mr Chai, the Managing Director of J&C Blinds, also told me that he was able to obtain his permanent residency through Mr Lee.
[6] My first 457 visa with J&C Blinds as sponsor was in 2015 but it was only for 1 ½ years. I had to reapply and made that application on 13 April 2017. My employer, J&C Blinds, also applied for a nomination approval for my visa application.
[7] Mr Lee of Hansol continued to act for me in my visa application. When I and my wife had to travel to Korea on several occasions in 2018 and 2019 Mr Lee organised our visas so that we could return to Australia.
[8] Even though I was in Australia I never met him in person until March 2021. All our contact was by email and telephone.
[9] I recall receiving a letter from the AA T in October 2020 that told me that the registration of my your (sic) nominated representative and authorised recipient Miss Hee Kyoung Kim was suspended on 6 January 2020. I was never aware of a person named Hee Kyoung Kim. When I received the letter, I called Mr Lee. Mr Lee told me that he would take care of it.
[10] Through Mr Lee I was aware that there were problems with my visa application and that an application for review on my behalf had been lodged with the Administrative Appeals Tribunal (AAT).
8 MARCH 2021 HEARING
[11] On 5 March 2021 I received an email from Mr Lee notifying me that there was a hearing and attaching documents for me to familiarise myself with. The email was in Korean. Although the email did not have Mr Lee's name on it, I knew it was from him because that was the email address that he used. Annexed as ESKl (pages 9-10) is the original and a translated copy of that email.
[12] Mr Lee wanted me to go to Hansol's office on 8 March 2021 for the hearing. That was the first time that I met him in person. When I was at Mr Lee's office, I received a phone call from the AAT at about 12.30 pm on my personal mobile phone number.
[13]Mr Lee asked me to put the call on speaker so that he could hear what was happening. He did not speak during the hearing with the AAT, but communicated with me by hand gestures.
[14] I did not question why he did not speak to the AAT. I assumed that was how AAT hearings worked.
[15] I recall the member said that the hearing was a joint hearing with the employer's nomination application and that since my employer did not appear, the nomination application would be dismissed.
[16]After the hearing ended, I asked Mr Lee what had happened. He told me that there was a procedural error. Mr Lee promised me that he would fix the problem.
17 MAY 2021 HEARING
[17] On 6 May 2021 at 5.39 pm I received an email from Mr Lee telling me that there was an AAT hearing on 17 May 2021 at 1.30 pm. The email referred to documents that I should have, and that he would contact me in the next week to practise for the hearing. Annexed as ESK.2 (pages 12-15) is the original and a translated copy of that email.
[18]Because the 6 May email had at the bottom the 5 March email, in my mind this hearing was the hearing that should have happened in March and was happening now because Mr Lee had fixed the procedural en-or.
[19] There were three occasions before 17 May 2021 when Mr Chai and I had a phone call with Mr Lee where we practised what to do at the hearing. Mr Lee played the role of the AAT Member in the calls.
[20] Before the hearing I called Mr Lee and asked if he was coming to the hearing. He told me that he couldn't come. I thought that meant that he had other commitments. I also thought it might mean that he was not allowed to be there, because that is how the 8 March 2021 hearing had been.
[21] Mr Chai and I attended the 17 May 2021 hearing in person. The Member appeared confused as to who my representative in my visa application review was. The Member also would not accept the documents that we had brought with us in hard copy.
[22]The Member adjourned the hearing so that we could complete forms saying who our representative was, and also so that we could upload the documents. We were told to email the forms to the AAT once they were signed.
[23]After the hearing was adjourned, the associate gave us hard copies of the Form MRS.
[24]While Mr Chai and I were driving back to J&C Blinds office we called Mr Lee to ask him what had happened.
[25]Mr Lee told us to each sign a blank copy and then scan and email the forms to him. He said he would handle the matter from there.
[26]When Mr Chai and I got back to J&C Blinds office, we both signed the forms. I then scanned both forms and emailed them to Mr Lee. I asked him to send me a copy of the documents. Annexed as ESK3 (pages 17-22) is a translated copy of that email and the attached forms.
[27]I heard nothing more from Mr Lee, but assumed that, like with the March hearing, he was fixing the problem and that I would hear from him when the next hearing was set.
[28]Following an FOI request in May 2022 was the first time that I saw the completed MRS form in my name that had Mr Chai named as my representative. At no time did I tell Mr Lee or Mr Chai that I wanted Mr Chai to be my representative. Annexed as ESK4 (pages 24-25) is a copy of the completed MRS form
[29]I confirm that the signature in the box marked '(Applicant)' is my signature made on 17 May 2021. When I scanned the form and sent it to Mr Lee there was no signature in the box marked '(Representative/authorised recipient) ', nor was anything written in the date box to the right of the signature box.
16 AUGUST 2021 HEARING
[30]On 16 August 2021, I received a call to my personal mobile phone from the AA T at a time that I do not exactly remember. I was in the J&C Blinds office with Mr Chai. Because Mr Chai was present, I switched to speaker phone to allow him to listen as well. We went into the meeting room after switching to speaker phone.
[31]We both told the AAT that Mr Chai was not the nominated representative or authorised recipient, and that we were not informed of anything and did not receive any invitations from the AAT.
[32]I have read the transcript of the hearing. Where it refers to 'Mr Thi ' I say there was no person called 'Mr Thi ' but that Mr Chai did speak.
[33]I called Mr Lee right after the hearing, although I cannot remember the exact time. Mr Chai was with me when I called him. We talked to Mr Lee on speaker phone. I told Mr Lee what had just happened and I asked him why this had happened. He told that the same procedural error as last time had happened. He told us that he would sort the issue out.
[34]After the August hearing I called Mr Lee about once a fortnight to find out what was happening. Each time he would tell me that he was waiting hear from the AAT to set another date for the hearing.
[35]In about April 2022 on a date I don't recall a friend of mine who also worked for J&C Blinds, and who was also applying for a 457 visa, told me that he had found out that Mr Lee's licence had been cancelled.
[36] As a result, in May 2022, I consulted Park & Co Lawyers to investigate my case.
[37]Park & Co Lawyers made a Freedom of Information (FOI) request on my behalf to obtain all materials relevant to my immigration matter. I first saw and received the FOI materials from Park & Co Lawyers in late May 2022.
[38]This was the first time I became aware that Mr Lee had filed a court application to the Federal Circuit and Family Court of Australia for a judicial review of the AAT's decision. Although I never gave instructions to Mr Lee or any other person to file that application, I expressly ratify the application made on my behalf.”
Hearing before Tribunal listed for 19 July 2021
The documents forwarded to the Tribunal by email on 19 May 2021 were unable to be opened by the Tribunal because they had been sent in a format not recognised by the Tribunal. Accordingly, the Tribunal asked for the documents to be sent as direct attachments in pdf form no later than 26 May 2021. [3] That email was sent to the email address B “mailto:[redacted]” address.
[3] See email at CB p. 111.
On 25 June 2021, another email was sent by the Tribunal to the applicant company via the email address B “[redacted]” noting that no response had been received to the email of 24 May 2021, and further asking for the provision of the documents earlier requested. [4] That email also attached a notice advising that the adjourned hearing of 17 May 2021 was to be resumed at 10am on 19 July 2021. [5]
[4] See email at CB p. 112.
[5] See letter at CB pp. 113 - 114.
On 19 July 2021, there was no appearance before the Tribunal by either applicant. As can be seen from the affidavits of Mr Chai and Mr Kim, each of them asserted that they had been generally deceived by the person named Lee, including by the failure of Lee to advise them as to the 19 July 2021 hearing date. Indeed, the registration as a migration agent of Mr Lee had been cancelled on 2 May 2016, and that of Ms Hee Kyoung Kim had been cancelled on 6 January 2020. The said Kim was never entitled to send or receive email correspondence to or from the Tribunal in respect of either applicant at the email address of email address C “[redacted]”. Likewise, on the uncontested evidence of the applicants, the said Lee was never entitled to send or receive email correspondence to or from the Tribunal in respect of either of the applicants.
The position from the applicants’ perspective was as set out at [4] of the written submissions filed on behalf of the applicant on 6 April 2023 as follows:
“[4]The essence of the complaint is that an unknown person – likely a Kevin Lee whose registration as a migration agent was cancelled – provided falsified documents to the Tribunal and a contact email address that together gave the appearance to the Tribunal that it was communicating with the Applicant when in reality was communicating with Mr Lee (or someone else). The Tribunal was then misled: it held a hearing which the Applicant did not attend, and made a decision based on the non-attendance when the Applicant did not know of the hearing because of the fraud on the tribunal.”
Though at the hearing before the Court much was made of the fact that Mr Chai had been nominated as the “(Representative/authorised recipient)” in the appointment of representative forms sent to the Tribunal from the email address B “[redacted]” on 19 May 2021, and that such appointment was in respect of both the applicant company and Mr Kim, [6] the Court finds that nothing of great import turns upon such nomination of the applicant/Mr Chai as the representative. That was but part of the factual matrix illustrative of deception on the part of Lee. What was of greater significance was that it had been represented to the Tribunal by both Ms Kim and Mr Lee that they were acting in the capacity of a migration agent in circumstances where the provision of immigration assistance by them under s. 276 of the Act was unlawful pursuant to the provisions of s. 283 of the Act. Not only were the false representations by Mr Lee and Ms Kim a fraudulent act vis-à-vis the applicants because of the false representations made to them to the effect that each of Kim and Lee were entitled to act as migration agents on their behalf, the Court finds that such representations constituted a fraud upon the Tribunal in the sense that there had been a subversion of the operation of s. 360 of the Act. That was particularly so given the significance of the procedural fairness principles which had been afforded an exhaustive statement of the natural justice hearing rule as set out in s. 357A of the Act. Sections 357A and 360 of the Act respectively provided as follows:
[6] CB 106 - 110.
“357A Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
…
“360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
In an analogous factual context, and in circumstances where the provisions of s. 360 of the Act were the same as the provisions of s. 425 of the Act at all relevant times, the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ at [30] - [32], [35] - [36], [41] - [45] and at [48] - [55] held as follows:
“[30]Part 7 (ss 410-473) of the Act establishes a detailed regime for the review by the Tribunal of particular visa decisions. (Part 8 (ss 474-486Q) provides for Judicial Review). Division 4 of Pt 7 (ss 422B-429A) lays down the procedure for the conduct of reviews by the Tribunal. This differs significantly from the procedures of inter partes civil litigation. Of these differences, in Minister for Immigration and Multicultural Affairs v Wang Gummow and Hayne JJ remarked:
"In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision - in this case the grant of a protection visa - and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision."
[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 requirement 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.
…
[35]What is the content of the expression "does not appear" in par (b) of s 426A(1)? Certainly it is a jurisdictional fact upon which depends the occasion for the exercise of the decision-making power of the Tribunal given by the balance of the subsection. Further, sub-s 426A(2) enables the Tribunal to respond to cases of force majeure and the like which cause the applicant to fail to appear. In Minister for Immigration and Multicultural Affairs v Bhardwaj by error of the Tribunal it proceeded to determine a review application adversely to the applicant without having regard to a prior written adjournment application; the Tribunal, later being apprised of its error made a second decision (favourable to the applicant). A challenge by the Minister to the competency of the second decision failed in the Federal Court and in this Court.
[36]In argument on the present appeal the Minister accepted that if, before the Tribunal had made its decision, it had appreciated the position of the first appellant and the misconduct of Mr Hussain, but nevertheless had gone ahead, forthwith and without inviting the first appellant to appear before it, this would have "raised a real question" as to the miscarriage of the Tribunal's power under s 426A(1). Upon that view of the due administration of the Act, the legal quality of the Tribunal's decision becomes a question of dates. The principles of finality in litigation and of the great significance attached to the entry of orders made by superior courts of record are well understood. But the first principle does not apply, and the second cannot apply, in administrative decision-making by the delegate of the Minister, or, as here, by the Tribunal which, by s 415, exercises all the powers and discretions of the delegate.
…
[41] In the Full Court French J properly observed:
"The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings."
[42] In his reasons, French J developed the matter as follows:
"The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was 'not accepting any visa applications at all at the moment'. He expressed a false concern that if [the first appellant] and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice [the first appellant's] prospects of a successful outcome on the basis of a submission to the Minister.
…
The decision-making process, that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7, was corrupted. The importance of the appearance before the Tribunal to the outcome of the review was highlighted by the Tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with [the first appellant] because of her non-appearance. On this basis, in my opinion, the decision of the Tribunal was vitiated. It was not a decision made under the Act and therefore not a privative decision protected by s 474."
[43]On the other hand Allsop J, one of the majority, expressed his conclusion for setting aside the relief granted by the Federal Magistrate as follows:
"A conscious choice was made by the [appellants] not to go to the hearing, which was influenced by the fraud of the agent. The complaints of the [appellants] are not about the process, but about their erstwhile agent who acted as he did. I do not consider that either the decision or the statutory process was corrupted by fraud."
[44]Graham J, the other member of the majority, reasoned that the sufficiency of an invitation to attend was to be addressed at the moment when it has been given and that, viewed in that way, any fraudulent advice could not bear upon the question of whether or not an invitation had been duly given. But the relief by way of certiorari and mandamus which had been granted by the Federal Magistrate was directed not to compliance with the letter of s 425 but to the decision made by the Tribunal on its review of the decision of the delegate. Was that decision liable to impeachment by a remedy for fraud practised upon the Tribunal?”
[45]Neither the reasons of the Federal Magistrate nor the dissenting reasons of French J in the Full Court considered in any detail the question of the motives of Mr Hussain in acting as he did with respect to the rejection of the invitation to attend the Tribunal hearing. The inference is well open upon the evidence that Mr Hussain acted as he did for self-protection, lest in the course of a Tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions imposed by Pt 3 Div 2 of the Act, particularly by s 281.
…
[48]As indicated earlier in these reasons, the provisions of Pt 7 obliging the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)) and empowering the Tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B-429A) for the conduct of reviews. By s 422B that Division provided that it is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule.
[49]The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. That this is so is manifest by the reasons given by the Tribunal, which included the statement:
"The [first] applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention."
[50]Reference has been made earlier in these reasons to the submission for the Minister that any fraud perpetrated on the appellants was not a fraud "on" the Tribunal. Further, as noted above, Allsop J characterised the complaints of the appellants as not about the process but about their erstwhile agent and concluded that neither the decision nor the statutory process "was corrupted by fraud." However, as in other areas of legal debate, including questions of federal legislative power under the Constitution itself, to say of a law or state of affairs that it bears one legal character does not necessarily deny it a second legal character which is of decisive significance.
[51]No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.
[52]The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj.
[53]The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
[54]Were the matter litigated in the original jurisdiction of this Court, the consequence would be that mandamus would lie under s 75(v) of the Constitution to compel the Tribunal to redetermine the review application according to law. In support of that remedy under s 75(v), certiorari would lie in respect of the purported decision of the Tribunal. By reason of the terms of the conferral of jurisdiction upon the Federal Magistrates Court it was in a corresponding position.
[55]The order of the Federal Magistrates Court granting orders in the nature of certiorari to quash, and mandamus requiring the Tribunal to redetermine according to law, the review of the decision of the delegate were properly made. That redetermination according to law will include the Tribunal giving the appellants, pursuant to s 425, a fresh invitation to appear before the Tribunal.”
Further, where the Full Court of the Federal Court was dealing with a case involving a person who allegedly falsely held themselves out to be a registered migration agent in Minister for Immigration and Citizenshipv SZLIX [2008] FCAFC 17, at [33] it was held, per Tamberlin, Finn and Dowsett JJ, as follows:
“[33]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].”
Mr Lee received a financial benefit from the applicants in circumstances where he was not so entitled. The Court infers that Mr Lee failed to identify himself as the relevant representative/authorised recipient in the authority forms, and otherwise failed to act as one would expect a diligent migration agent to act, because if identified by the Tribunal in doing so, he would be identified and thereby render himself liable to be convicted under s. 283 of the Act with a possible consequence of his being imprisoned. The relevant deception on the part of Mr Lee was the fundamental reason for the non-appearance by the applicants before the Tribunal. Their evidence to that effect was unchallenged.
The Tribunal innocently proceeded on the basis that despite the Tribunal’s best endeavours to afford procedural fairness to the applicants, the applicants had, without any reason being advanced on their behalf, failed to appear before the Tribunal to give evidence and present arguments. No criticism can be made of the Tribunal for what it did.
Only after an FOI request had been answered and lawyers retained were the applicants in a position to fully appreciate the fraud which had been perpetrated upon them. Such fraud intrinsically had the effect of putting the Tribunal in a position where it was unable to afford procedural fairness to the applicants. In such circumstances, the hearing before the Tribunal miscarried in that the Tribunal could realistically have arrived at a different decision had the applicants appeared before it to give evidence and present arguments. In Nathanson v Minister for Home Affairs [2022] HCA 26 at [30] – [33] it was held per Kiefel CJ, Keane and Gleeson JJ as follows:
“[30]In Hossain v Minister for Immigration and Border Protection, a majority comprising Kiefel CJ, Gageler and Keane JJ enunciated a common law principle of statutory interpretation. That principle is that a statute conferring decision-making authority is "ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance". It is well recognised that, generally speaking, legislation should be construed to discourage unnecessary litigation, to reduce wasting time and cost and to preserve the dignity of the law. And, in particular, in relation to the Act, this Court has declined to attribute to the legislation the impractical intention that an error in process, which cannot have affected the outcome of the process, requires that the process be repeated.
[31]In MZAPC,a majority comprising Kiefel CJ, Gageler, Keane and Gleeson JJ explained the evolution of the contemporary understanding of jurisdictional error that supported that principle of interpretation. Their Honours further explained:
"The principle accommodates determination of the limits of decision-making authority conferred by statute to the reality that '[d]ecision-making is a function of the real world’ by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no 'practical injustice’ will deprive a decision of statutory force."
[32]As explained in MZAPC,the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined. The burden falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
[33]There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.”
The decision of the Tribunal, as in SZFDE, was no decision at all, its jurisdiction having remained constructively unexercised. The fraud of Mr Lee had rendered of no force and effect the natural justice hearing rule provisions under the Act, thereby amounting to a fraud on the Tribunal.
In the light of the Court’s reasons, it is appropriate that time be extended for the filing of the Originating Application for Review.
By reason of the foregoing, the decision of the Tribunal is quashed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 6 June 2023
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