Lu v Minister for Immigration and Anor (No.2) - [2010] FMCA 251

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LU v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2010] FMCA 251

MIGRATION – Review of Migration Review Tribunal decision – refusal to revoke cancellation of a student visa – whether the Tribunal decision vitiated by fraud considered – applicant paying a bribe in order to obtain a favourable decision – applicant misled as to the process and the outcome – whether the applicant was deterred from participating in the review process considered – whether the Tribunal was disabled from performing its statutory functions considered.

Evidence Act 2005 (Cth), s.128
Migration Act 1958 (Cth), ss.137J, 359, 359A, 359C, 477

Hasran v Minister for Immigration [2010] FACFC 40
Lu v Minister for Immigration & Anor [2010] FMCA 140
SZFDE v Minister for Immigration (2007) 232 CLR 206
SZLHP v Minister for Immigration [2008] FCAFC 152

Applicant:

PENG LU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3032 of 2009

Judgment of:

Driver FM

Hearing dates:

12-13 April 2010

Delivered at:

Sydney

Delivered on:

19 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Austin Haworth Lexon Legal

Solicitors for the Respondents:

Mr A Markus
Australian Government Solicitor

ORDERS

A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal signed on 11 April 2007 and notified to the applicant’s then migration agent by letter dated 20 April 2007.
A writ of mandamus shall issue requiring the Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3032 of 2009

PENG LU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to revoke the automatic cancellation of a higher education sector visa formerly held by the applicant. The decision was handed down on 20 April 2007. Under transitional provisions relating to the time for filing judicial review applications prescribed by s.477 of the Migration Act 1958 (Cth) (“the Migration Act”), the Tribunal decision is deemed to have been made on 15 March 2009.
The application before the Court was filed on 14 December 2009. It was not filed within the prescribed time limit of 35 days. On 19 March 2010 I granted an extension of time, pursuant to s.477(2) of the Migration Act[1]. In granting an extension of time, I took into account that the applicant (Ms Lu) has raised serious allegations of fraud against the Tribunal which should be tested at a final hearing.
[1] Lu v Minister for Immigration & Anor [2010] FMCA 140
Ms Lu is a citizen of China who arrived in Australia in 2003 as the holder of a student visa. She subsequently held further student visas.
On 25 August 2004, Ms Lu was granted a subclass 573 student visa (Relevant Documents (“RD”) at 10). On 27 March 2006, she was issued with a Notice of Intention to Consider Cancellation of her student visa due to her failure to comply with condition 8202 which attached to her visa. After attending an interview with the Department of Immigration and Citizenship, a delegate of the Minister decided not to cancel her visa (affidavit of Ms Lu affirmed 26 February 2010 and filed the same day, annexures “R” and “S”).
On 4 May 2006, Ms Lu’s then education provider, the Sydney International College of Business Pty Ltd, issued her with a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) certifying that she had not achieved satisfactory course attendance and had breached visa condition 8202(3)(a) of her student visa (RD at 1-2). On 2 June 2006, Ms Lu’s visa was automatically cancelled pursuant to s.137J of the Migration Act.
On 20 October 2006, Ms Lu, through her then migration agent, applied to the Minister’s Department for revocation of the automatic cancellation of her student visa (RD 3-13)[2]. Ms Lu claimed exceptional circumstances because she had suffered a miscarriage and psychological problems. That application was refused by a delegate of the Minister on 17 November 2006 (RD 14-17). On 28 November 2006, an application for review of that decision was lodged by Ms Lu’s migration agent with the Tribunal (RD 18-30).
[2] See also appointment of migration agent Form 956 at RD 5-8
On 12 March 2007, the Tribunal sent to Ms Lu’s migration agent an invitation to comment on information (RD 32-34) to which neither she nor her agent responded. The letter also sought additional information about exceptional circumstances claimed by Ms Lu, pursuant to s.359(2) of the Migration Act. The Tribunal, pursuant to s.359C of the Act, proceeded to decide the review without inviting Ms Lu to a hearing and, on 20 April 2007, affirmed the decision under review (RD 42-47).

The application, evidence and submissions

Ms Lu relies upon an amended application filed in court on 13 April 2010. That application raises two grounds, the first being that the decision of the Tribunal was induced or affected by fraud, said to have been committed by a person named Zhao Hui. The particulars of the ground are:
a) Zhao Hui represented to the applicant that she was an agent for a solicitor who could assist the applicant with her application to the Tribunal.
b) The applicant paid Zhao Hui a total of $93,200.00 for the services of the purported solicitor.
c) Zhao Hui told the applicant that the purported solicitor had advised her not to respond to a Tribunal request for further information as her doing so would be counter productive.
e) Zhao Hui either
i) knew that the above advice was false; or
ii) gave the advice with reckless indifference as to whether it was true.
In the alternative, the amended application asserts that the Tribunal decision was induced or affected by the fraud of a person known as “Anna”. The particulars are:
a) Zhao Hui represented to the applicant that one “Anna” could assist her in obtaining a valid visa.
b) The applicant paid “Anna” through Zhao Hui, a total of $93,200.00 for her services and/or those of a purported solicitor with whom “Anna” had contact.
c) Zhao Hui conveyed to the applicant Anna’s advice not to respond to a Tribunal request for further information as her doing so would be counter productive.
d) “Anna” either
i) knew that the above advice was false; or
ii) gave the advice with reckless indifference as to whether it was true.
I have before me as evidence the book of relevant documents filed on 29 January 2010. In addition, I received the affidavit of Ms Lu made on 26 February 2010. Ms Lu was cross-examined on that affidavit at the time of the extension of time hearing and I treated that evidence as evidence in the final hearing. I also received the affidavit of Gang Liang Li (a NAATI accredited level 3 Chinese translator). Annexed to that affidavit is an electronic disc of sound recordings of conversations between Ms Lu and Ms Zhao.
Ms Zhao was subpoenaed by the Minister to give evidence. She was an unwilling witness and objected to giving evidence. After hearing from her counsel in relation to her objections I issued a certificate in accordance with s.128 of the Evidence Act 2005 (Cth) (“the Evidence Act”) in relation to the oral evidence given by Ms Zhao appearing on the transcript of the hearing conducted on 12 and 13 April 2010.
Ms Lu submits that she paid a great deal of money to Ms Zhao as an intermediary between her and a solicitor known as “Chris” and possibly a person known as “Anna” and Ms Zhao purported to convey advice to Ms Lu with the authority of the solicitor. She asserts that she was induced by what she was told to terminate her instructions to her migration agent and not to respond to the invitation to comment and request for additional information issued to her pursuant to ss.359A and 359(2) of the Migration Act, with the result that she lost the opportunity to provide information in writing to the Tribunal and to attend a hearing before the Tribunal. Ms Lu relies upon the decision of the High Court in SZFDE v Minister for Immigration (2007) 232 CLR 206. Ms Lu submits that the fraud of Ms Zhao or “Anna” disabled the Tribunal from the due discharge of its statutory functions. She submits that it makes no difference that Ms Zhao was not and did not purport to be a migration agent or a lawyer.
Ms Lu distinguishes her case from the Full Federal Court decision in SZLHP v Minister for Immigration [2008] FCAFC 152. Ms Lu submits that she was not a willing participant in the alleged fraud. She paid money to Ms Zhao and placed her trust in her and the solicitor she understood was being engaged on her behalf. She asserts that she was gullible and naïve and vulnerable.
The Minister concedes that a third party’s fraud upon a party to Tribunal proceedings may, if it results in stultifying the operation of the statutory decision making process of the Tribunal, be described as a fraud on the Tribunal with the consequence that the Tribunal’s jurisdiction remains constructive unexercised[3]. The Minister draws attention to the High Court’s close attention to the nature, scope and purpose of the system of review by the Tribunal which the Migration Act establishes and the place in that system of registered migration agents[4] and the circumstances in that case where the migration agent had given advice in a conscious attempt to protect his own position[5].
[3] see SZFDE at [49]-[52]
[4] see SZFDE at [29]
[5] see SZFDE at [45]
The Minister further submits that:
a)there must be a causal connection between the relevant act of fraud and the disabling of the Tribunal’s decision making process;
b)before any act can be characterised as a fraud on the Tribunal it must be able to be characterised as a fraud on the applicant;
c)an applicant needs to show a deliberate attempt for improper motives to deceive him or her into preventing him or her responding to the Tribunal;
d)the principle in SZFDE does not apply in circumstances where an applicant is complicit in the fraud on the Tribunal and where the applicant is not misled as to his or her advisor’s reasons for discouraging participation in the review process[6];
e)an allegation of fraud is a serious matter and the applicant bears the onus of establishing the fraud to a high degree of satisfaction;
f)the Court should not reach the required level of satisfaction based upon Ms Lu’s evidence alone;
g)Ms Lu’s evidence discloses that she was complicit in participating in a scheme to “get around” the Tribunal; and
h)although the evidence of Ms Zhao tends to support the proposition that Ms Lu was defrauded, in terms of payment of money for services apparently not provided, it does not persuasively establish that Ms Lu was induced by that fraud not to participate in the Tribunal process and, in any event, Ms Lu knew or must have suspected that the huge amount of money she was paying was directed towards an irregular process.
[6] see SZLHP at [20], [34]

Consideration

In SZFDE at [49]-[52] the High Court said:
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.
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.
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.
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. (footnotes omitted)
At [29] the Court noted:
Rather, the present appeal should be resolved after close attention to the nature, scope and purpose of the particular system of review by the Tribunal which the Act establishes and the place in that system of registered migration agents. Any application of a principle that "fraud unravels everything", requires consideration first of that which is to be "unravelled", and secondly of what amounts to "fraud" in the particular context. It then is necessary to identify the available curial remedy to effect the "unravelling". To these matters we now turn.
It was noteworthy in that case that Mr Hussain’s practising certificate had been cancelled. It was apparent that Mr Hussain had sought to conceal the fact that he was continuing to act as a migration agent by ensuring that the applicant in that case did not attend a hearing before the Tribunal and give evidence. The High Court said at [32]:
An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act. (footnote omitted)
I do not see in the decision of the High Court any limitation of the principles enunciated to the acts or omissions of persons holding themselves out to be registered migration agents. It is notorious in migration proceedings that applicants are frequently assisted by persons they describe as “friends” who offer assistance of various kinds in making applications for visas and in the review of adverse decisions before a tribunal. Frequently, such persons are paid for those services. Sometimes those services are said to have been provided without charge. In my view, any applicant may hypothetically be defrauded by a person offering such assistance and, if by reason of that fraud, the applicant is prevented, through no fault of their own, from participating in a Tribunal review process which they would otherwise have enjoyed, then the Tribunal’s review process may thereby be disabled and the Tribunal decision invalidated.
The circumstances are different where the applicant himself or herself is complicit in the disabling of the review function: see SZLHP at [20], [34] and [87]-[88].
In the present case, the applicant had appointed a migration agent, Mr John Eyeson-Annan. Mr Eyeson-Annan represented Ms Lu both before the Department and before the Tribunal. In both cases he was appointed in writing in a document signed by the applicant. On 12 March 2007 the Tribunal sent to Mr Eyeson-Annan an invitation to comment on adverse information pursuant to s.359A of the Migration Act. The information concerned the applicant’s poor attendance record at her education institution. The letter also sought additional information about Ms Lu’s claim of exceptional circumstances pursuant to s.359(2). The Tribunal received no response to that invitation and request. The applicant had provided to the Department and to the Tribunal some information concerning her state of health that she submitted should be taken into account in determining whether there were exceptional circumstances beyond her control which may have caused her poor attendance. The invitation to comment and request for additional information provided an opportunity for the applicant to explain those circumstances. Ms Lu has proven to be a very successful student, apart from the period 2004-2006 and she may well have been able to mount a strong case that her attendance record was due to exceptional circumstances beyond her control.
The failure to respond to that invitation and request influenced fundamentally the Tribunal’s decision, not only because the applicant was thereby deprived of a hearing but because of the absence of sufficient information to persuade the Tribunal as to exceptional circumstances. Relevantly, the Tribunal said (RD 46-47):
The Tribunal invited the applicant to comment on her poor attendance regime and to provide any ‘exceptional circumstances beyond the visa holder’s control’ which may have caused her failure of attendance. The applicant chose not to respond to the invitations either personally or through her adviser (T1, f.34).
The Tribunal has examined the applicant’s psychologist’s submission and observes that the psychologist has claimed to have seen the medical evidence of the claimed miscarriage. He comments on [these] issues in his report based on the statements of the applicant to him in his consulting room. However, at no time has the Tribunal or Department been given any medical evidence of the claimed miscarriage. The Tribunal regards this observation as very unsatisfactory as this is an important consideration when examining whether any ‘exceptional circumstances beyond the visa holder’s control’ were responsible for her failure of attendance. Normally policy permits proven serious illness or medical circumstances to be the basis for a finding that ‘exceptional circumstances beyond the visa holder’s control’ have been responsible for the non-compliance and these circumstances are then used as a basis for revoking the cancellation.
However, the Tribunal is not prepared in the instant case to use its discretion to revoke the cancellation as the applicant has made no effort to clarify the medical issues that she appears to claim are responsible for her failure of attendance during the period of her course. She has not made herself available to be questioned about her individual circumstances at a hearing nor responded to the Tribunal’s invitation pursuant to s.359A of the Act. She ha not provided actual evidence of her claimed condition from her doctor for the Tribunal’s edification and pursuant to the s.359(2) invitation. The Tribunal finds this to be very unsatisfactory when such serious claims have been made.
The Tribunal is simply not satisfied that there is adequate evidence present to make a finding of ‘exceptional circumstances beyond the visa holder’s control’ as a basis for the applicant’s non-compliance with the attendance requirement of condition 8202 attached to the Student visa. The Tribunal is not prepared to allow a discretionary revocation of the cancellation on this occasion.

It is unfortunate that the presiding member stated, without any supporting evidence, that Ms Lu “chose” not to respond to the invitation and request issued to Mr Eyeson-Annan. I assume, in that connection, that the Tribunal was unaware of the circumstances of the non response. If the Tribunal had been aware of the circumstances its failure to say anything about them would have been extraordinary. It is also unfortunate that the presiding member stated that Ms Lu had “not made herself available to be questioned about her individual circumstances at a hearing” because the Tribunal was prevented by the Migration Act from offering Ms Lu a hearing in consequence of the non response to the invitation to comment and the request for additional information[7]. Leaving those problems aside, however, as they were not raised in the application before the Court, the Tribunal decision was the inevitable consequence of the failure by Ms Lu to respond to the invitation and request issued to her migration agent.
[7] Hasran v Minister for Immigration [2010] FACFC 40 at [25]-[32]
Ms Lu gave evidence that she was dissatisfied with the assistance provided by Mr Eyeson-Annan and was also concerned at his assessment that she had only a 50/50 prospect of success before the Tribunal. She stated that she was not informed by Mr Eyeson-Annan of the handing down of the Tribunal decision even though he remained her authorised recipient. After she met Ms Zhao in January 2007 and heard from Ms Zhao that she knew a lawyer called “Chris” who had succeeded in helping her get her visa back and who could “get around the MRT” if Ms Lu paid about $24,000, Ms Lu decided to follow that course. I accept her evidence which is both plausible and was in general terms corroborated by Ms Zhao.
It was said to be part of the arrangement between Ms Zhao and Ms Lu that the lawyer “Chris” would take over the conduct of the matter from Mr Eyeson-Annan. Ms Lu gave evidence that in about March 2007 she received a phone call from Mr Eyeson-Annan’s office in which a staff member told Ms Lu of the receipt of the invitation to comment and request for information from the Tribunal and said that there was a very tight deadline for a response. Ms Lu states that she then spoke to Ms Zhao on the telephone and that Ms Zhao said words to the effect:
Do not worry about the deadline. I’m sure Chris can win the case for you. If you lodge the documents it will be more difficult to win the case, so don’t lodge.
Ms Lu states that the next day she went to Mr Eyeson-Annan’s office and withdrew his instructions.
I do not accept Ms Lu’s evidence that she withdrew instructions from Mr Eyeson-Annan. She twice authorised him in writing to represent her but there is no documentary evidence of any withdrawal of instructions. Having engaged him in a formal way, it is implausible that there would be no record of a withdrawal of instructions. In cross‑examination Ms Lu stated that she did not speak to Mr Eyeson-Annan personally, only to his assistant. She was also uncertain about the time of her visit to his office. She admitted in additional cross‑examination that her recollection of her conversation with the assistant was not very clear. Further, on her own evidence, Mr Eyeson-Annan remained as her authorised recipient. That is inconsistent with a withdrawal of instructions. I accept that Ms Lu did attend the office of Mr Eyeson-Annan and I also accept that the consequence of that visit was that Ms Lu did not require Mr Eyeson-Annan to respond to the Tribunal’s letter of invitation and request. That is consistent with the alleged conversation between Ms Lu and Ms Zhao.
There is a dispute of fact whether Ms Zhao told Ms Lu not to respond to the Tribunal’s request. Ms Zhao denies saying the words attributed to her by Ms Lu. Ms Zhao was in China at the time of the alleged conversation and denied having an international roaming facility on her mobile telephone. The alleged conversation was a telephone conversation.
I prefer the evidence of Ms Lu to that of Ms Zhao. First, she was the more impressive witness of the two under cross-examination. Ms Lu gave her evidence calmly and fairly consistently. For the most part it had the ring of truth about it, although she tended to overstate her innocence about the process she entered upon with Ms Zhao. In contrast, Ms Zhao was evasive, implausible, contradictory and at times patently untruthful. Secondly, the mere fact that Ms Zhao was in China at the time Ms Lu recalls the conversation occurred does not mean that the conversation did not happen. Ms Lu was adamant in her evidence under cross-examination that it did happen. Thirdly, Ms Lu provided detailed evidence of conversations with Ms Zhao in 2009 concerning their dealings in relation to Ms Lu’s visa status and the payment of money, the detail of which was denied by Ms Zhao. However, when sound recordings of those conversations were played to Ms Zhao in cross-examination, she was forced to concede the accuracy of Ms Lu’s evidence.
Finally, the process which Ms Zhao recommended to Ms Lu and which Ms Lu accepted was not a normal part of the review process before the Tribunal. Ms Zhao stated that the lawyer “Chris” could, for payment of $24,000, “get around” the Tribunal. Ms Lu was probably gullible but I do not accept that she is as naïve as she claims. In my view, Ms Lu anticipated that instead of participating in the Tribunal review process, she would get what she wanted through payment of a bribe, facilitated by “Chris”. This conclusion is supported by the later dealings between Ms Lu and Ms Zhao which are detailed in Ms Lu’s evidence, which I accept. In particular, I note the following:
a)in addition to the $24,000 paid in cash by Ms Lu to Ms Zhao, Ms Zhao sought and obtained $15,000 from Ms Lu for the purposes of enrolment in a language school at which it was agreed Ms Lu would not have to attend classes;
b)in April or May 2007 Ms Zhao demanded more money from Ms Lu, apparently for payment to “Chris” and Ms Lu withdrew $50,000 from her bank in order to meet those demands;
c)Ms Zhao told Ms Lu that she had got back her student visa as a result of payments she had made and further represented that for $34,000 “Chris” could arrange for Ms Lu to be granted a permanent residence visa within two weeks;
d)Ms Lu paid the money sought by Ms Zhou; and
e)in January 2009 Ms Zhao demanded a further $10,000 for the permanent residence visa application but this was rejected by Ms Lu.
It is implausible that the payment of such large sums was represented as or expected to be payment for legitimate legal services. Ms Lu took a close interest in the services provided to her by Mr Eyeson-Annan and was dissatisfied with them. She had entered into a written fee agreement with him. It is implausible that she would not take a similar interest in legal services provided by “Chris” where a much greater sum was involved. Ms Lu admitted in cross-examination that she did not care how she got her visa back, as long as she got it back. In re‑examination she said that she was told not to ask questions. Ms Zhou said she never counted the money she received and Ms Lu did not ask for a receipt for any of the payments until after she discovered her true visa status. She then sought and obtained from Ms Zhou a receipt for the total amount paid over time ($93,200). Ms Zhou claimed that she only provided this receipt as a “favour” but I do not believe her. I believe that Ms Zhou felt the need to co-operate with Ms Lu after Ms Lu had discovered the truth about her visa status. I accept that $93,200 was paid by Ms Lu to Ms Zhou over a period of about one and a half years.
Ms Zhou claimed in her evidence that she had never met “Chris” and that she dealt exclusively through another intermediary who she only knew as “Anna”. Ms Lu gave evidence that Ms Zhou said that “Anna” was Ms Zhou’s aunt. Ms Zhou said in her evidence that she did not know what “Anna’s” family name was or whether she was a migration agent or a lawyer. Neither was she an acquaintance of Ms Zhou. Ms Zhou nominated “Anna” as the source of the representations she made to Ms Lu. Ms Zhou’s evidence was that she herself was a mere conduit. I reject that evidence. When pressed under cross‑examination Ms Zhou said that “Chris” was Mr Christopher Levingston, a solicitor. Tribunal documents shown to the Court established that Mr Levingston had represented Ms Zhou in relation to her visa proceeding before the Tribunal. It is impossible to believe that Mr Levingston represented her in that proceeding without ever meeting Ms Zhou. However, there is no evidence that Mr Levingston knew anything of the representations made by Ms Zhou to Ms Lu or that he ever received any money paid to Ms Zhou either for the provision of professional services or for any other purpose. I think it more likely that Ms Zhou simply used Mr Levingston’s first name (and the first names of other persons working with him) in order to construct a plausible story which would induce Ms Lu to pay money to her. I find that Ms Zhou concocted the story of dealing with the person known as “Anna” in order to attempt to distance herself from responsibility for the false representations made to Ms Lu. I find that Ms Zhou falsely represented to Ms Lu that “Chris” could “get around” the Tribunal in relation to the revocation of the cancellation of her student visa and that he could quickly obtain a permanent residence visa for her. I accept Ms Lu’s evidence that she saw Ms Zhou pay several of the cash payments into her own bank account. Ms Zhou undertook to produce her banking records but has failed to do so. I find, on the balance of probabilities, that Ms Zhou kept the money paid to her.
Ms Lu is an intelligent person. She is not so naïve that she would pay over $90,000 for legal services of which she saw no evidence from persons who she never met. She thought that she was unlikely to get what she wanted (first, the revocation of the cancellation of her student visa and later a permanent residence visa) through the normal process. She believed that the wheels of public administration in this country could be greased by the payment of money. There is no evidence before me that she was correct in that belief. She was defrauded because the money she paid was not applied to the purpose for which it was paid.
The question then is, was the fraud on Ms Lu also a fraud on the Tribunal? I accept that the Tribunal process was disabled. Ms Lu failed to respond to the Tribunal’s invitation to comment and request for information because she was induced by the representation by Ms Zhou not to participate further in the Tribunal’s process but to pay money for an irregular process. There is a causal connection between the fraud (the false representation by Ms Zhou inducing the payment of money) and the disabling of the Tribunal’s decision making process. I have no doubt that the actions of Ms Zhou constituted a fraud on Ms Lu. Ms Zhou’s representation was deliberate and improper because it was false and intended to deceive Ms Lu into paying very large sums of money. Ms Zhou had an interest in preventing Ms Lu from participating further in the Tribunal’s process because, once Ms Lu knew the outcome of her review application, she would have been unlikely to trust Ms Zhou further. The longer Ms Lu could be kept in ignorance of the real situation, the more money could be extracted from her.
In one sense Ms Lu was complicit in the disabling of the Tribunal process because she chose to participate instead in what she must have known would have been an irregular process (if it was a real process). It was her choice not to respond to the invitation to comment and request for information. However, in another sense, which I find more relevant, Ms Lu was not complicit. She did not know that the alternative irregular process was a fabrication. She did not know that she was paying money for nothing. She was not complicit in the fraud on herself. Her decision not to respond to the Tribunal was induced by that fraud.
The facts in this case are different from those in SZLHP where the applicant was clearly and substantially a party in a scheme to mislead and deceive the Tribunal. It is an unfortunate fact that in some countries bribery is an accepted means of obtaining a quick and favourable decision. That is not the case in this country but applicants who are new to this country cannot reasonably be expected to fully appreciate the difference in circumstances between their country of origin and Australia. A gullible applicant, such as Ms Lu, may be deceived into believing that a favourable or quick outcome may be obtained or assisted through the payment of a bribe. That is what happened here. An applicant may be induced through such a deception not to participate in the Tribunal’s review process and that process may thereby be disabled. I find that in the present circumstances, the Tribunal was disabled from the due discharge of its imperative statutory functions in respect of the conduct of the review in circumstances where Ms Lu was not relevantly complicit. A consequence is that the decision of the Tribunal in this case is a legal nullity.
This is not an appropriate case to withhold relief from Ms Lu in the exercise of discretion. Although Ms Lu’s academic performance and attendance were unsatisfactory in 2004-2006, she was able to persuade a delegate of exceptional circumstances the first time she was notified of a breach of her visa conditions and she may have been able to persuade the Tribunal if she had responded to its invitations. She has now successfully completed a masters degree at Central Queensland University. She was duped into paying money for a visa process which was a sham and the Tribunal’s review process was thereby disabled. Ms Lu should now be given the benefit of the review opportunity she was induced to give up by reason of the fraud against her.
Therefore, Ms Lu should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
In conclusion, I note that Ms Lu has commenced proceedings against Ms Zhou in the District Court of NSW (matter 1278 of 2010). The District Court has sought access to this Court’s file for the purposes of those proceedings. That access should be granted, subject of course to the certificate I granted pursuant to s.128 of the Evidence Act. This judgment is given in relation to the administrative law issue arising in these proceedings and is not intended to pre-empt the civil law proceedings in the District Court.
I will hear the parties as to costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 May 2010