MZXQH v Minister for Immigration
[2008] FMCA 872
•16 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXQH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 872 |
| MIGRATION – Application to adjourn pending VCAT investigations of possible fraud by applicants’ representatives – non-attendance by applicants’ at Federal Magistrate Court hearing because of alleged fraud – re-hearing granted in any event – no purpose in granting adjournment. |
| M60 v Minister for Immigration (No.2) [2003] FMCA 429 SZFDE v Minister for Immigration & Citizenship [2006] FCAFC 142 |
| First Applicant: | MZXQH |
| Second Applicant: | MZXQI |
| Third Applicant: | MZXQJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 575 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 16 June 2008 |
| Date of last submission: | 16 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2008 |
REPRESENTATION
| Solicitor for the Applicants: | Mr T. A. Fernandez |
| Solicitors for the Applicants: | T.A. Fernandez Solicitor |
| Solicitor for the Respondents: | Ms P. Mitchell |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Application filed 8 May 2007 be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 575 of 2007
| MZXQH |
First Applicant
| MZXQI |
Second Applicant
| MZXQJ |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
What is formally before the Court today is the notice of motion filed by the Minister on 15 August last year, effectively seeking the summary dismissal of this application.
Today before me, Mr Fernandez, who appears for the Respondents to the Minister’s notice of motion, seeks an adjournment. He has informed me, and I of course accept that there is now a proceeding before the Victorian Civil and Administrative Tribunal (“VCAT”) which in its character involves an investigation of the conduct of a person or persons who have played a maligned part in the Applicants’ circumstances following a referral by the Legal Services Commission.
In 2003, as is apparent from the affidavit material filed on 1 September 2003 by the Applicants, they were represented – that puts it too high. The circumstances are unclear and unsatisfactory, particularly from the Applicants’ point of view. They had some involvement in 2002 and 2003 with a migration agent and a person who may or may not have been a solicitor.
The affidavit material filed by the Applicants in September 2003 raises in plain terms negligence by the migration agent and/or the solicitor and would in fact give rise to an assumption that there had been serious misconduct on one or other or both their parts. That is significant because the matter first came before this Court in August 2003.
The Applicants did not appear and their application was dismissed by Federal Magistrate Phipps on 12 August 2003. A prompt application was made for reinstatement his Honour found, at paragraph 6 of his reasons for decision given that day, and I quote:
“I am satisfied that the Applicants have given an explanation for their failure to appear. Their affidavit is not contested and it does appear that they have been misled by the migration agent. They intended to be represented. They had taken steps to be represented and they were not. So I am satisfied that they have given an explanation.”
It is apparent from that extract that possible misconduct by the migration agent was before his Honour and indeed it is apparent from the terms of the Applicants’ August 2003 affidavit. I accept that the word “fraud” does not appear in his Honour’s judgment one would infer that the phrase was not used before his Honour because he would have been likely to have dealt with it.
I now understand that the question of fraud in terms is before the VCAT, and a decision is awaited as to the conduct of those concerned. The difficulty that stands in the way of the Applicants’ application for an adjournment and their case generally is the remainder of Federal Magistrate Phipps’ judgment in September 2003.
On that occasion the Applicants were represented by Mr Gibson of counsel, who is a very experienced practitioner in the migration law field. He argued not only grounds raised by their application but also additional matters which Federal Magistrate Phipps gave him leave to put before the Court. It is plain from paragraphs 7 to 18 of Federal Magistrate Phipps’ decision that argument was fully put by the Applicants as to the sustainability or otherwise of their claim and his Honour – it is quite clear – disagreed.
His Honour dismissed the application on the merits, or more accurately on the lack of merits. An appeal to the Full Federal Court was unsuccessful, and an application for special leave to the High Court was also unsuccessful.
What Mr Fernandez submits today is that if it emerges that the decision in August 2003 was indeed attended by fraud, as the VCAT hearing may establish, then the entirety of the proceeding before Federal Magistrate Phipps is vitiated – to use Mr Fernandez’s phrase – and therefore – as it were – the matter returns for further hearing.
He relies primarily upon the dissenting judgment of French J in SZFDE v Minister for Immigration & Citizenship [2006] FCAFC 142, which was, of course, upheld by the High Court. But if one looks even just at the head note, one notes – at point 15 – his Honour’s observation at paragraph [121] of the full reasons for judgment that:
“It is sufficient to say that a decision made in the purported exercise of statutory powers may be quashed by certiorari, where the decision has been induced or affected by fraud, or by circumstances analogous to fraud.”
At paragraph [122], his Honour went on to say:
“Fraud and analogous circumstances will justify the grant of certiorari if they distort or vitiate the statutory process leading to the impugned decision to such an extent that it can be said that the decision was induced or affected by that fraud or those circumstances.”
I am bound to follow those observations, and do so. While fraud is undoubtedly, as Mr Fernandez submits, a corrosive experience, what his Honour French J was saying, as I understand it, was that fraud will vitiate a decision where it is shown to have operated on that decision.
The difficulty the Applicants face here is that Federal Magistrate Phipps’ decision was not affected by the fraud, assuming there was fraud, which I am prepared to do for these purposes. That fraud meant that the Applicants did not attend the original hearing before this Court. When they did attend, his Honour was quite prepared to and did hear their case, so that the failure to attend the first time was of no moment.
The fraud, to the extent that there was one, had no effect that was material upon the judgment made by Federal Magistrate Phipps. To adjourn this matter off to await the outcome of the VCAT proceeding would mean no more in the ultimate than we would at some future date be back here, faced with the same set of reasons for judgment made by Federal Magistrate Phipps on the materials before him. There is no suggestion that there is anything additional that is material to their original non-attendance that could possibly emerge.
So in the circumstances I propose to dismiss the application and I will so order.
The Applicants are to pay the First Respondent’s costs fixed at $4500.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 16 June 2008
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