Marku and Secretary, Department of Social Services (Social services second review)
[2019] AATA 20
•14 January 2019
Marku and Secretary, Department of Social Services (Social services second review) [2019] AATA 20 (14 January 2019)
Division:GENERAL DIVISION
File Number(s): 2017/4368 & 2017/4375
Re:Valentin and Liliana Marku
APPLICANTS
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:14 January 2019
Place:Adelaide
The Tribunal declines to decide the issue raised in the preliminary application until the whole of the application for review and such evidence relied on by each of the parties is before the Tribunal.
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Senior Member B J Illingworth
CATCHWORDS
PRACTICE AND PROCEDURE – Jurisdiction – Scope of review – Collateral attack – Whether the Tribunal has the power to impugn the identities of the Applicants – Whether Tribunal bound to accept the Applicants’ identities – Whether decisions obtained by fraud are not decisions made in the true exercise of the power – Whether the issue of identity is dipositive of the proceedings – Whether there is risk of fragmentation – Whether the issue raised should be reserved for the substantive hearing – Tribunal declines to decide the issue raised.
LEGISLATION
Social Security Act 1991
A New Tax System (Family Assistance) Act 1999
Australian Citizenship Act 2007
Migration Act 1958Immigration Act 1971 (UK)
CASES
Ousley v The Queen (1997) 192 CLR 69
Director of Housing v Sudi (2011) 33 VR 559
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579
Wright Patton Shakespeare Capital Ltd and Australian Securities and Investments Commission [2007] AATA 2101; (2007) 99 ALD 335
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Farley (Aust) Pty Ltd v JR Alexander & Sons (Queensland) Pty Ltd [1946] HCA 29; (1946) 75 CLR 487
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
Leung & Anor v Minister of Immigration and Multicultural Affairs [1997] FCA 1313; (1997) 79 FCR 400Re Davis and Secretary, Department of Social Security [1992] AATA 111; (1992) 26 ALD 595
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Senior Member B J Illingworth
14 January 2019
INTRODUCTION
Both Applicants had been granted protection visas and subsequently conferral of Australian citizenship.
Thereafter in about 2009, an extradition application was made by the Republic of Albania for the extradition of Valentin Marku (“the first Applicant”) on the basis that he was, in fact, an escapee from an Albanian prison whose true name was Agostin Lleshaj. It was said that he was there serving a sentence of imprisonment for murder, and during a period of civil unrest in 1997, he escaped and found his way to Australia arriving in 1998.
The extradition application was subsequently discontinued. The responsible Minister did not revoke the Applicants’ protection visas, nor their grant of Australian citizenship.
The Secretary, Department of Social Services (“the Respondent”) received information from the Department of Immigration and Citizenship with respect to the identity of the first Applicant. Consequently it was found that both Applicants had made false statements as to their respective identities when applying for social security benefits and had received social security and family assistance payments to which neither was entitled. Each Applicant’s payments were cancelled and a debt was raised against each. The combined total of that debt exceeded $295,000.00. The Authorised Review Officer (“ARO”) affirmed that decision of Centrelink, which was further affirmed on review by the Social Services & Child Support Division (“AAT1”).
It is not necessary to here detail the whole of the material that was before the Respondent and the AAT1. In summary, in affirming the decision under review, the AAT1 said at [48]:
It is far more likely than not that Agostin Lleshaj, who escaped from an Albanian prison in 1994[1][sic], after assuming the name Bujar Husani to enter Australia, assumed the identity of Valentin Marku, Kosovar refugee, and used that identity to obtain a protection Visa, citizenship and Commonwealth welfare payments.
[1] This date was incorrectly referenced by the AAT1. The correct date is 1997: see paragraph 23(ii) below.
The Applicants brought a review application before the Tribunal to set aside the decision of the AAT1, the consequence of which, if upheld, being that the debts of both Applicants would be set aside.
At a directions hearing, counsel for the Applicants, Mr Cox SC, requested that the application be set down for preliminary argument before the Tribunal with respect to a question of jurisdiction. The Respondent was given time to consider the application, and by letter dated 29 August 2018 the Respondent wrote to the Applicants and said:
The Respondent considers that the Tribunal may rule on the question of whether it is bound to accept that the Applicant’s are Australian citizens, for the purpose of the Act, even if it were to assume, without deciding, that the decision to grant the Applicants Australian citizenship were (or may have been) procured by fraud. The answer to that question may be considered and ruled upon as a pure question of law.
However, if the Tribunal were instead to be asked to determine whether it has the power to impugn the identities of the Applicants or refuse to accept their Certificates of Citizenship as proof that they are in fact Australian citizens for the purpose of the Act… the Respondent will oppose the application…
Further the Respondent said that if the latter course was proposed it would risk fragmenting the proceedings.
On the basis that the scope of the preliminary hearing as to jurisdiction was correctly characterised by the Respondent, the Tribunal listed the matter for preliminary argument.
Prior to the hearing, the Applicants filed an “Outline of Argument” and at the hearing presented a document titled “Applicant’s proposed orders”. The proposed orders were as follows:
1. Each of the decisions of:
1.1.the Department of Human Services - Centrelink dated 8 April 2011, 23 June 2016 and 30 June 2016: and
1.2.the Administrative Appeals Tribunal decision dated 21 June 2017;
be set aside.
2. Within 7 days the respondent pay to the applicants all social security payments which have not been paid since the date of the decisions referred to in paragraph 1.
THE APPLICANTS’ ARGUMENT¶
The first and second Applicants were each granted Australian citizenship in 2002 and 2004 respectively, which enabled each to hold themselves out as having their respective identities as conferred by their Australian citizenship.
The conferral of Australian citizenship can be revoked by the responsible Minister pursuant to ss 34 and 34A of the Australian Citizenship Act 2007 (“Citizenship Act”). The protection visas can be cancelled pursuant to ss 109, 116, 501 and 501A of the Migration Act 1958 (“Migration Act”).
No responsible Minister has sought to either cancel the protection visa or revoke the conferral of Australian citizenship of the Applicants, and hence, the conferral of Australian citizenship has never been challenged.
The Applicants argued that the decisions of the Department of Human Services (Centre- link) including the original decision, the review of that decision by the ARO, and subsequent review by the AAT1, were each a collateral attack on the decisions of the responsible Ministers to grant the Applicants protection visas and conferral of Australian citizenship.
The collateral attacks, it was argued, were on the basis that those respective decisions of Centrelink, the ARO and AAT1 were dependent on both Applicants not having the identities claimed in their respective applications for protection visa and conferral of Australian citizenship; and that they were in fact Mr and Mrs Lleshaj. This, it was said, represented inconsistencies between different Ministers and Departments of Government because it was plain that underpinning the grant of protection visa and conferral of Australian citizenship was that each Applicant had satisfied the responsible Minister of their respective identities, namely, they were Valentin Marku and Liliana Marku; the first and second Applicant respectively.
The Respondent, in making the decision, referenced the identities of both Applicants as accepted by each responsible Minister with respect to the protection visa and conferral of Australian citizenship. It was argued that an inquiry by the Respondent into the question of identity was a collateral attack on the decision of each responsible Minister as defined by McHugh J in Ousley v The Queen (1997) 192 CLR 69 at 98 – 99. Further it was argued that the collateral attack will be broadened in the proceedings now before the Tribunal if the application is allowed to proceed. This, it was submitted, would arise from the consideration of the additional expansive documents filed in the Tribunal by the Respondent, which bare on the Applicants’ identities.
The Applicants referred to Director of Housing v Sudi (2011) 33 VR 559 which considered the role of the Victorian Civil and Administrative Tribunal (“VCAT”) in determining disputes as conferred by the Residential Tenancies Act (“the RTA”). There Warren CJ, at [43] in discussing the interaction between the RTA and VCAT, said “in dealing with applications under the RTA, VCAT should treat relevant purported administrative decisions as being valid unless and until set aside by a court of competent jurisdiction”. Hence it was argued that unless the statutory process governing the challenge to the grant of protection visa and conferral of Australian citizenship have each been addressed under the Migration Act and Citizenship Act, the identities of each Applicant remained determined. Any other enquiry into their identities by the Respondent was an impermissible collateral attack on the decision of the relevant Ministers.
The Applicants further referred to Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209. The Federal Court said that it was an error of law for the Tribunal to make findings inconsistent with the findings of fact and conviction made by a criminal court. The Applicants argued the same principle should apply in this matter, namely, the responsible Minister made a positive finding of fact with respect to the Applicants’ identity which was intrinsically linked to the granting of Australian citizenship, and such finding cannot be challenged by the Respondent. Hence the Tribunal should not proceed to hear evidence that challenges the identity of the Applicants. To do so would result in the Tribunal falling into error and proceeding without jurisdiction.
If the Tribunal accepted the Applicant’s argument, this, it was said was determinative of the issue before the Tribunal, and orders in terms of the Applicant’s proposed orders should be made.
THE RESPONDENT’S SUBMISSIONS
The Respondent submitted that the Applicants’ preliminary application, as understood, namely if a person obtained a visa and conferral of Australian citizenship by using a fraudulent identity, which identity is used to claim Social Security payment, the Respondent is not permitted to question that identity, even if the Respondent is aware of the identity being false. This, it was said, is wrong.
Albeit initially the Respondent did not object to the Tribunal determining the issue of the scope of its power to review Respondent’s decision, as a pure question of law, and that the Tribunal may rule on the question of whether it is bound to accept the Applicants are Australian citizens, the Respondent in argument submitted that the Tribunal ought now reserve its ruling on the preliminary application. The Respondent argued that the decision on the preliminary application ought to be left until the Tribunal deals with the application for review as a whole.
The Respondent argued that to proceed to determine the preliminary application would enliven the real risk of fragmenting the proceedings given that either party may, and in all likelihood would, appeal any decision on the preliminary application to the Federal Court. The Respondent raised in argument concerns about the risks identified in WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; and Re Wright Patton Shakespeare Capital Ltd and Australian Securities and Investments Commission [2007] AATA 2101; (2007) 99 ALD 335. The Federal Court has made it clear that it is very reluctant to accept appeals from Tribunal interlocutory decisions that do not finally dispose of the application: see WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245 per French J (as his Honour then was) at [38].
The Respondent submitted that in any event, this preliminary application is not dipositive of the whole of the matter before the Tribunal. It is better to reserve any ruling on the preliminary application until all substantive matters have been dealt with, and all evidence has been received by the Tribunal. Once the Tribunal has dealt with all issues, the final decision of the Tribunal can then be determined on appeal, if required.
In the Respondent’s outline of argument he referenced the factual findings made by the AAT1 as contained within the reasons dated 21 June 2017 at [16]. The following facts were not in dispute, namely:
(i)In 1994, the District Court of Mirdita in the Republic of Albania found one Agostin Lleshaj, of Prosek, Albania, guilty of intentional homicide. Mr Lleshaj was sentenced to life imprisonment, reduced to a sentence of 25 years on appeal;
(ii)During civil unrest in Albania in 1997, Mr Lleshaj escaped from gaol and was not recaptured;
(iii)In 1998, Mr Marku entered Australia using the name Bujar Hasani;
(iv)He later informed the Commonwealth immigration authorities that he was Valentin Marku, and was a refugee from Kosovo. He applied for and was granted a protection visa on that basis;
(v)A protection visa was granted to Mrs Liliana Marku, wife of Valentin Marku, in 2000. Mrs Marku entered the country on that visa;
(vi)In 2002 and 2004 respectively, Mr Valentin Marku and Mrs Liliana Marku became citizens of Australia;
(vii)In 2009, the Republic of Albania requested that “Agostin Lleshaj (Lleshi) aka Valentin Marku” be extradited. The process of extradition commenced. Mr Marku contested the proceedings, maintaining that he was not Agostin Lleshaj; and
(viii)In 2015, the Australian Minister for Justice informed Mr Marku that he would not be extradited.
The Respondent submitted there were four primary issues for determination by the Tribunal namely:
(i)the true identity of the Applicants (“Identity Issue”);
(ii)whether the Applicants were Australian citizens or otherwise Australian residents, for the purposes of ss 7(2)(i) and 593(1)(g)(ii) of the Social Security Act 1991 (“the Act”) as well as ss 3(1) and 21(1)(b)(i) of A New Tax System (Family Assistance) Act 1999 (“Family Assistance Act”), when the payments resulting in the relevant debts were paid (“Residency Issue”);
(iii)whether the Applicants made false or misleading statements, or presented false or misleading documents, in connection with their claims under the Act and Family Assistance Act (“False/Misleading Information Issue”); and
(iv)whether social security benefits were payable to the first Applicant during any period in which he ought to have been in gaol as provided by ss 23(5) and 1158 of the Act (“Gaol Issue”).
The Respondent submitted that the Identity Issue was an antecedent issue to be determined before the balance of the primary issues (ii) to (iv) are addressed. The Respondent submitted that if the Applicants are not Valentin and Liliana Marku, but are in fact Agostin and Liljana Lleshaj, they were not entitled to grants of protection visa and conferral of Australian citizenship in the names of Mr and Mrs Marku. Accordingly it is argued that there was no need to revoke any protection visa or conferral of Australian citizenship because there grants were infected by jurisdictional error, because the decisions were procured by identity fraud.
The Respondent referred to the Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (per Gaudron and Gummow JJ (McHugh J agreeing)) namely:
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.
In considering the question of fraud, the Respondent referenced Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at pages 712 - 713 who said:
No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgement of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.
The Respondent argued that fraud infects all purported legal acts that may follow, and were the Tribunal to act upon an assumption caused by fraud it was prevented from discharging its function on review: see Farley (Aust) Pty Ltd v JR Alexander & Sons (Queensland) Pty Ltd [1946] HCA 29; (1946) 75 CLR 487; and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189.
The Respondent also referred to the statement of Finkelstein J in Leung & Anor v Minister of Immigration and Multicultural Affairs [1997] FCA 1313; (1997) 79 FCR 400 in considering cases in the United Kingdom relating to migration in which it was held that permission to enter and remain in the United Kingdom under the Immigration Act 1971 (UK) obtained by fraud or misrepresentation can be ignored.
Consequently the Respondent argued the grant of protection visa and conferral of Australian citizenship cannot be relied on by the Applicants to prove each were Australian residents for the purpose of s 7(2) of the Act because they were decisions obtained by fraud and are not decisions made in the true exercise of the power conferred by the Citizenship Act. Consequently it is argued that such decisions cannot bind subsequent decisions made by the Respondent in deciding eligibility for social security payments made by the Commonwealth. Hence it is argued that there is no collateral attack but simply the Tribunal should ignore the grant of protection visa and conferral of Australian citizenship.
The Respondent further argued that even if the Tribunal ruled in favour of the Applicants with respect to the question of residency, that was not an end to the matter. The Tribunal was still empowered to determine whether false or misleading information was provided to the Respondent. Providing statements that are false or misleading, or presenting a document that is false or misleading in connection with or in support of a claim for payment under Social Security law, is an offence. Accordingly, if payments were made to both Applicants that they were not entitled to receive, then those payments are debts due to the Commonwealth under s 1223(1) and (1AB) of the Act or s 71 of the Family Assistance Act.
The Respondent argued that pursuant to s 1158 of the Act, no payment of social security benefit can be made in respect of a period in which a person is in gaol. Further s 23(1) of the Act defines the term of social security benefit to include new start allowance. Part 3.1.4.10 of the Guide to Social Security Law (“the Guide”) states that “For the purpose of the [Act], 'gaol' is taken to include gaols in Australia and any other foreign countries and territories.”
The Respondent submitted that a broad approach should be taken to the words “is imprisoned” and that when a person is “on the run” having escaped from prison, such person is not unemployed, and it is not entitled to unemployment benefits. See Re Davis and Secretary, Department of Social Security [1992] AATA 111; (1992) 26 ALD 595 at [30], [38] – [40].
Hence the Respondent argued that in respect of the first Applicant, he owed a debt to the Commonwealth for social security and family assistance payments received during such period when he should have been in custody in Albania. He was not unemployed and therefore not entitled to receive Newstart Allowance payments.
CONCLUSION
The AAT1 affirmed the original decision of the Respondent and consequently it is the original decision that the Tribunal is now required to review; see Re Gee and Director General of Social Services (1981) 3 ALD 132.
It is not in dispute that the Tribunal has jurisdiction to hear a review on whether the original decision was defective, or whether the decision maker was empowered to make the decision that was the subject of the application: see Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 which was affirmed on appeal Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307. This is plain having regard to the proposed orders sought by the Applicant.
The preliminary application goes beyond a mere decision on a question of law as contemplated by the Respondent in their letter dated 29 August 2018, and referred to in paragraph 7 above. As can be seen from the Respondent’s arguments, there are potentially a number of complex questions of law that need to be considered by the Tribunal before coming to a final decision on the applications for review.
Should the Tribunal decide to proceed only with the preliminary application, there is the real risk that the proceedings will become fragmented which is plainly undesirable, and a potentially costly and an inconvenient approach in finalising the applications for review.
DECISION
The Tribunal declines to decide the issue raised in the preliminary application until the whole of the application for review and such evidence relied on by each of the parties is before the Tribunal.
The application for review will be listed for a further directions hearing at a time and date to be set by the Registry.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
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Associate
Dated: 14 January 2019
Date of hearing: 22 October 2018 Counsel for the Applicant: Mr Tom Cox SC with Mr Stephen McDonald Solicitors for the Applicant: Shaw and Henderson Counsel for the Respondent: Ms Sashi Maharaj QC with Mr Andrew Schatz Solicitors for the Respondent: Sparke Helmore
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