SZFDE & Ors v MIMA

[2007] HCATrans 97

[2007] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S366 of 2006

B e t w e e n -

SZFDE

First Applicant

SZFDF

Second Applicant

SZFDG

Third Applicant

SZFDH

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 MARCH 2007, AT 12.16 PM

Copyright in the High Court of Australia

__________________

MR G.C. LINDSAY, SC:   May it please the Court, I appear with MR L. KARP for the applicants.   (instructed by Legal Aid Commission of NSW)

MR G.T. JOHNSON:   May it please your Honours, I appear for the respondent Minister.  (instructed by DLA Phillips Fox Lawyers)

GLEESON CJ:   Yes, Mr Lindsay.

MR LINDSAY:   Three key features, in our submission, demonstrate the nature of the questions that arise for consideration in these proceedings.

CALLINAN J:   Do I understand the facts correctly, Mr Lindsay, and I do not think there is any contest about them, is there, that your client is being assisted by a migration adviser and the migration adviser said do not come to the hearing because you will inevitably contradict yourself and your client accepted that advice and did not come and would have said things that may have assisted your client’s claim if your client had come?  Is that in a nutshell what happened?

MR LINDSAY:   Not quite, your Honour.

CALLINAN J:   Just tell me then.

MR LINDSAY:   The basic point of departure I would make with your Honour’s summary ‑ ‑ ‑

CALLINAN J:   I am not asserting it, Mr Lindsay.  I am trying to find out whether I have got it correct, that is all.

MR LINDSAY:   No, no.  The third party concerned who, in a sense, acted as a migration adviser was a solicitor who had his practising certificate cancelled but did not disclose that fact and held himself out as a solicitor.

CALLINAN J:   The facts are worse than I stated them to be so far as your client’s position was concerned.

MR LINDSAY:   That is right.  He had been a registered migration agent but that registration had been cancelled and he did not disclose that.

CALLINAN J:   If the migration officer or the migration adviser, former solicitor, had turned up he – is was a he was it not – probably would not have been allowed to continue anyway if anybody had discovered that he had been struck off, as it were.

MR LINDSAY:   I am not sure that I can put that that high.

CALLINAN J:   It is obviously a possibility, is it not?

MR LINDSAY:   Yes.  The Tribunal was aware that his registration had been cancelled.

CALLINAN J:   On those facts, what is your proposition?  That your client really was denied a hearing through no fault of his, albeit perhaps no fault of the respondent, but nonetheless, there was no proper hearing or determination by the Tribunal?

MR LINDSAY:   Essentially that is it and the form of consent that was signed by the first applicant, we submit, was procured by fraud and, therefore, was not a consent within the meaning of section 425(2).

GLEESON CJ:   I am assuming there is evidence of this, or there are inferences available.  What was the motivation for the fraudulent conduct?

MR LINDSAY:   The receipt of money.  About $11,000 was paid to the fraudulent person by way of professional fees, about $1,500 in the first place.

GLEESON CJ:   Why was he better off as a result of your client not attending the hearing?

CALLINAN J:   He might have been found out, might he not?  He would have had to refund the money.  He might have been found out that he was behaving improperly.

MR LINDSAY:   An inference to be drawn, we would submit, apart from that, was that by inducing the applicants not to attend the Tribunal hearing he might have lived in hope that they were quietly refused their application and deported and he would have got away with the moneys that had been paid to him by way of fees and loan, which loan he was evidently not anxious to repay, so that there was something in it for him, to put it crudely, by allowing all this procedure pretty well to be swept under the carpet.

GLEESON CJ:   This was the basis of Justice French’s dissent in the Full Court.  What was the answer that the majority gave to that?

MR LINDSAY:   The majority silently passed over the effect of the fraud on the consent and, to that extent, disregarded it and said that it was sufficient to give the Tribunal jurisdiction simply for the Tribunal to have posted out a formal invitation that in form complied with section 425 and to have received a form of consent document.

CALLINAN J:   A little like those cases of result procured by fraud in a way, is it not, where you start a fresh action to have the first judgment set aside.  Was I right in putting to you that there seems to be no dispute between you and the respondent as to the facts?  There is no contradiction of them anyway?

MR LINDSAY:   No, there is no contradiction.  Our assessment of the situation is that there is no dispute about the facts, though there is a dispute about the legal consequences that flow from the facts.  In my friend’s written submissions there was a suggestion that there was no finding of fraud in the Full Court, but we take issue with that.  Not only did Justice French, we say, make explicit findings that my client’s consent had been procured by fraud, but Justice Allsop, we say, had made the same findings and Justice Graham, though he was critical of the process, did not make any contrary finding.  What he ultimately found was that any fraud was irrelevant on his Honour’s construction of the legislation.  So that we say that the consistent findings at both levels of the proceedings are that the consent was procured by fraud.

Now, the proceedings, in our submission, because of the factual matrix, stand at the intersection of three areas of law.  One is the proper construction of various provisions of the Migration Act including section 425 and section 426A and also section 422B.  The other two areas of law that are involved, in our submission, have general significance in administrative law generally and those two areas are, first, the question whether, as recognised by the House of Lords in Al-Mehdawi, that fraud or conduct analogous to fraud towards a party in an administrative process without fault on the part of a decision‑maker or any party to the decision can vitiate an administrative decision otherwise validly made within the exercise of statutory power.  That is what we have described in our submissions as the fraud principle.

The second question is whether the fraud principle is a subset or foundation or assumption of or completely separate from the principles of procedural fairness.  Those two questions come up, in our submission, in the context of the statutory regime that is the Migration Act.

CALLINAN J:   We had one case, I just cannot quite remember the name of it, sometimes they are just initials so it is hard to remember, but I think we held that there had not been a real hearing.  I think that related to the failure to take account of some documents that were on the Tribunal’s file or the Tribunal had not received those documents.  I have just forgotten the name of it now, but this case sounds as though it could be in that sort of territory, Mr Lindsay.

MR LINDSAY:   It certainly is in that sort of territory.  My junior suggests to me that it may be Aala as a decision, but it certainly has that flavour because the evidence was that the first applicant wanted to attend a hearing and tell her story.  The Tribunal itself said that it had some questions that it wished to put to the applicants.

So the submission that we would make is that the key features of the case in terms of the facts are, first of all, the decision of the Tribunal was predicated upon an assumption that the applicants had consented to an ex parte hearing; secondly, the Tribunal itself recorded that its decision‑making processes had been adversely affected by an absence of evidence from the applicants and, thirdly, the findings of fact that the applicant’s apparent consent to an ex parte hearing had been procured by fraud.

The judgment of Justice Allsop, in particular, concedes that there was fraud, that the form of consent was procured by fraud, but then his Honour says he does not see how that affected the process.

GLEESON CJ:   He says the decision was not procured by fraud.

MR LINDSAY:   That is what he said and that raises the question of what the legal effect of the fraud would be, but we would submit that it is quite apparent that the decision was materially affected by the fraud because the decision of the Tribunal was predicated on a particular basis which was incorrect and that the Tribunal itself had said that it wished to have evidence which was not available to it.

GLEESON CJ:   If your proposition is right, it would apply in any ordinary litigation in which a particular ultimately disadvantageous course was taken by a litigant where the litigant had been fraudulently persuaded by the litigant’s solicitor or legal representative to take that course.  In other words, if a solicitor, for example, or a barrister for that matter, for a corrupt personal reason advised a client to take a particular course and that operated ultimately to the client’s disadvantage, without the other side knowing about it or being in any way party to what went on, the other side would bear the consequences of that.

MR LINDSAY:   One needs to be careful about the statutory regime in each case, but certainly in a situation where the integrity of the process is found as a fact of being affected by fraud in those circumstances, the fraud principle as recognised by the House of Lords would embrace that possibility.

GLEESON CJ:   What is just giving me a little pause at the moment, you may be right ultimately, but one of the principles at least for which you are contending seems to go beyond the present context and one of its implications in ordinary civil litigation, for example, might be, as I put to you – I mean, we are not necessarily sitting here wringing our hands in sympathy for the Minister, but if this were an ordinary civil action, there would be a party on the other side who would be wearing the consequences of this.

MR LINDSAY:   There certainly are questions that arise as to the limits of the principle and that was recognised by Justice French.

CALLINAN J:   I suppose the theory would be, and it might not avail you very much, but the innocent party would probably have remedies of some kind against the defrauding person who has been guilty of the fraud.  It may not be very valuable in the end, but that would be the theory, both the defrauded party and the innocent other party would have remedies.

MR LINDSAY:   Yes, and in the context of a court and the particular facts here the non‑appearance of a party before a court could be dealt with in the context of Taylor v Taylor anyway.

GLEESON CJ:   Let me take an example that, of course, is unimaginable in practice, but suppose a client was advised not to go in the witness box because the person giving the advice was jammed in a different court and wanted to get the case over quickly and that was ultimately found out. 

Would the party on the other side of that litigation, who in my assumption was successful in it, have to bear the consequences of that?

MR LINDSAY:   I do not pretend to have a ready answer to that possibility, but the difference between the facts that your Honour has put to me as an assumption and here is that there was no appearance whatsoever before the ‑ ‑ ‑

GLEESON CJ:   Yes, and I am just trying to understand the limits of this principle and how it relates to the principle fundamental to adversarial litigation that people are bound by the conduct of their lawyers.

MR LINDSAY:   The cases seem to acknowledge, and the House of Lords seem to acknowledge, that there was a difference between advice which was negligent on the one hand and fraudulent conduct.  So that may be one of the practical matters.

GLEESON CJ:   The principle that litigants are bound by the conduct of their lawyers exists, amongst other things, for the protection of the people on the other side. 

MR LINDSAY:   I accept that.

CALLINAN J:   You say you do not have to go as widely as that anyway because you have the special statutory context which itself is a matter of general importance.

MR LINDSAY:   Yes, I do.  Another aspect of the area that seems to appear a little bit uncertain is what the relationship is between the fraud principle, on the one hand, and the rules of natural justice on the other.  They appear to dovetail to some extent.  There has been more debate about that apparently in England than here, but one can see the area of that debate even in the cases to which we have referred.

GLEESON CJ:   It seems to me that if we were to grant special leave in this case it could raise some important questions that would affect civil litigation generally.

MR LINDSAY:   I cannot exclude that as a possibility, certainly.

GLEESON CJ:   Yes, all right, thank you, Mr Lindsay.  Yes, Mr Johnson.

MR JOHNSON:   Yes, thank you, your Honour.  Your Honours, could I perhaps start with the question that Justice Callinan put to my friend at the beginning and that was whether, in effect, the applicant chose not to come to the hearing, in effect, preferring her chances under section 417.  I would like to dwell upon that a little bit because there are some features of this case, both that point and also some deficiencies noted by Justice Graham as to the evidence in relation to fraud, which could very much undermine its utility as a vehicle to advance some of the questions that my friend raises. 

Later I would like to talk about some specific aspects of this particular legislation and, in particular, section 426A which seems to have been the primary basis upon which Justice Graham and Justice Allsop decided as they did.  In my submission, section 426A does not require consent per se of the applicant to foregoing a hearing.

If I could come back first to that question of Justice Callinan’s and could I just take your Honours to page 99 of the application book.  The answer to the question ultimately is, yes, in my submission.  At page 99 of the application book in the paragraph numbered 166 Justice Graham sets out the first applicant’s affidavit affirmed on 7 April 2005, or part of it, and the first section of the quote that he sets out is concerned with making out the first applicant’s awareness of the fact that she had been invited to a hearing.

The letter that his Honour is referring to is one of the invitation letters that your Honours will have seen so many times before where the Tribunal says “We cannot decide in your favour on the material available” and then goes on and invites the person to a hearing.  In paragraph 17 of her affidavit she spoke about the evidence of Mr Hussain, that was the authorised recipient, and:

Mr Hussain said, “It is best that you do not go to the hearing at the Refugee Review Tribunal.”

I said:  “Why, we need to tell my story.  Are you sure it’s best not to go?” or words to that effect.

He said words to the effect:

“It is best not to go.  If you go they will refuse you.  They are not accepting any visa applications at all at the moment.  I am going to take a different approach.  I am going to write a letter to the Minister.  I am worried that if you go to the RRT you will say something in contradiction to what I will write.  Don’t worry.  I’m doing what is best for you.”

Then she goes on in the remainder of what is quoted to say that she took his advice.  She talks about the payment of money and other matters.  Then at page 104 of the application book to 105 in the paragraph numbered 187 there is some cross‑examination of the first applicant which is gone through by his Honour.  I will not read all of that aloud, but I just suggest to your Honours that if your Honours browse through that cross‑examination, which is extracted there at paragraph 187 over to the top of page 105, your Honours will see that the first applicant acknowledges that she understood that the agent was suggesting that she should seek a visa through the Minister instead of pursuing the application to the Tribunal.  It was put:

‘And did you understand therefore that he was advising you to accept that the Tribunal wouldn’t give you a visa and to take a different avenue instead?’

Answer, “Yes.”  So there is a deliberate giving up of the opportunity to go to the Tribunal based upon advice from the migration agent, or the person she says was a migration agent but who, in any event, was an authorised recipient under this legislation, that she would be better off not taking the risk of contradicting herself and letting him make his application under section 417.

Now, it is not in dispute that he was not a solicitor and he was not a migration agent at the time that he was giving this advice and a part of the finding of fraud, to put it broadly, that the federal magistrate made was to do with the fact that he was not what he represented himself to be in terms of qualification.

GLEESON CJ:   Did he give evidence before the federal magistrate?

MR JOHNSON:   No, no, he was put on notice of the proceeding by the magistrate, I think, and he did not participate, but there is no evidence from him.  But if I could perhaps attempt to focus on the direction of your Honour’s question.  There was no evidence that the advice that he gave was dishonest.  Justice Graham makes some findings in relation to this in the paragraphs numbered 187 through to 194.  I have already referred your Honours to 187. 

CALLINAN J:   Would that be an available inference, however, from the fact that he had been struck off and that he had borrowed money and been paid what does appear to be a very large sum of money?

MR JOHNSON:   The distinction I want to draw is between, on the one hand, him representing that he is something that he is not and receiving money.  That is a deceit of kind.  But the other thing, which is really quite different, is whether the advice was fraudulent.

CALLINAN J:   No, I understand that, but is it not an available inference that if he had obtained money from them improperly, an excessive amount of money improperly and in circumstances in which he could not do what he was undertaking to do for the money, that any advice he gave them was coloured by that, which might involve, particularly when the advice was “Don’t go there”, that might have involved some sort of apprehension on his part that he would be discovered, found out, might be disciplined in some way?

MR JOHNSON:   I think there are two answers to that, your Honour.  One is the Tribunal knew that he was there anyway.

CALLINAN J:   Because of the correspondence.

MR JOHNSON:   Yes, yes, and then there was a subsequent letter which referred to him as being her solicitor.  Also, she could go along to the hearing without him going along, so he did not have to participate.  But it is the first answer which I think is the real one.

CALLINAN J:   He had been paid and he would have to explain to her in an adequate explanation as to why he did not go along himself with her having taken, what, $8,000-odd from her.

MR JOHNSON:   Once again, your Honour, the Tribunal had sent a letter saying, in effect, “Look, it comes to our attention this man is no longer a registered agent, do you wish to change?”  The letter was sent to the last address that they had for her.  Justice Graham made the point in paragraph 193 of his judgment at the top of page 106 that:

It is not axiomatic that a person in the position of the first‑named First Respondent would be better off by attending a Tribunal hearing and giving evidence, rather than staying away, avoiding questions that may engender unhelpful answers and relying upon an approach to the  Minister under s 417 of the Act to secure a favourable outcome.  However, it is difficult to accept that advice to stay away could properly be founded upon the proposition that ‘They are not accepting any visa applications at all at the moment’.

With respect to that, there was no evidence that that was dishonest advice.  It might have been wrong advice, but there is no evidence that is dishonest advice by the agent.

CALLINAN J:   Presumably there would be an available inference, would there not?

MR JOHNSON:   It might have been his unfortunate experience.  It is a possible inference, your Honour, but there is a deficiency in that respect.

GLEESON CJ:   Is that a convenient time to adjourn, Mr Johnson?  We will adjourn until 2.00 pm.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

GLEESON CJ:   Yes, Mr Johnson.

MR JOHNSON:   Thank you, your Honours.  Your Honours, Justice Allsop, although not reasoning through step by step to his own particular finding of fraud, was prepared to at least proceed upon the assumption that there had been fraud, or to accept or not cavil with the findings of the magistrate in that respect.  His Honour nonetheless allowed the appeal and it is evident that in his Honour’s mind what had been found to have occurred in relation to the agent or the authorised recipient, to use the more neutral language, did not matter, did not determine the result.

The basis upon which his Honour decided the case and, indeed, the basis upon which Justice Graham decided the case was primarily to rely upon section 426A of the Migration Act.  If I could just make that out by taking your Honours first to the relevant paragraphs of the judgments.  Justice Allsop at page 89 of the application book in the paragraph ‑ ‑ ‑

CALLINAN J:   The text of that section, where do I find that?

MR LINDSAY:   We can hand up some copies.

GLEESON CJ:   Thank you.

MR JOHNSON:   I am grateful to my friend.  Justice Allsop on page 89 towards the end of the paragraph numbered 134 says:

I do not see how it can be said that an invitation conforming to s 425(1) of the Act was not issued.  That being so, the Tribunal was authorised to make a decision:  s426A(1) of the Act.

Justice Graham similarly at paragraph 237 on page 123 referred at the commencement to:

The first‑named First Respondent having failed to appear before the Tribunal on the day on which, and at the time and place at which, she was scheduled to appear, it was empowered by s426A(1) of the Act to make a decision on the review without taking any further action to enable or allow her to appear before it.

In the preceding paragraph his Honour had set out how the Tribunal had prescribed with the regime for the sending of the invitation and it referred to some relevant provisions in relation to the way in which it was to be sent and deemed receipt.

GLEESON CJ:   Suppose it appeared in a particular case that the reason the applicant did not turn up at the Tribunal was that on her way to the Tribunal hearing room she was kidnapped.  What would the consequence of that be in terms of the capacity to have the decision set aside?

MR JOHNSON:   When one goes to section 426A, the two triggers are an invitation having been issued and the person failing to appear.

GLEESON CJ:   That is the example I gave you.

MR JOHNSON:   So my submission would be there would still be an entitlement to dismiss the application without further ado.  But the difficulty with the example that your Honour is putting to me, which is not the present case, of course, is that in that case the person’s failure to appear is not voluntary, whereas, as we discussed before lunch, here the person’s failure to appear was voluntary.  There was a decision made by the applicant not to appear.

GLEESON CJ:   The assumption being the decision was procured by fraud.

MR JOHNSON:   There was no fraud upon the Tribunal.  There was a dishonesty practised upon the applicant at least as to the qualifications of the individual concerned.  As Justice Graham pointed out, there was no evidence that the content of the advice was dishonest as far as the giver was concerned.

GLEESON CJ:   I thought the finding of fact made by the magistrate, Federal Magistrate Scarlett, was that her decision not to appear was procured by fraud.

MR JOHNSON:   Your Honour is not incorrect in that respect.  Justice Graham took the view that it was not and reasoned through the deficiencies in the evidence as to fraud, but then ultimately, like Justice Allsop, decided upon the section 426A basis.  My point is this, your Honour, that if the gateways to the power conferred by section 426A are twofold and twofold only, namely, the fact that an invitation has been issued in accordance with the Act and then the person fails to appear, then many of these questions simply do not arise.

CALLINAN J:   What about, Mr Johnson, if a consent under 425(2)(b), if the consent were procured by a fraud of this kind, you would say the same result would follow?

MR JOHNSON:   Yes, your Honour, but could I ‑ ‑ ‑

CALLINAN J:   There would not need to be an invitation in those circumstances, because that is what 425 deals with.

MR JOHNSON:   Yes, the point that I am making, your Honour, is that section 426A does not have as one of its integers, there having been a consent to ‑ ‑ ‑

CALLINAN J:   No, but if the rule is good for a failure to appear, it would be good for a consent that had not been given for the same reason, or have not given for the same reason.

MR JOHNSON:   The view that Justice Graham took, and this is really a second and alternate basis for his decision, was that section 425 also operated in a way that there was no entitlement to a hearing.  If I could just take your Honours to the paragraph in question.

CALLINAN J:   That was the section I was referring you to.

MR JOHNSON:   His Honour was referring to section 425(2) and (3).  His Honour said at paragraph 240 on page 123:

Whilst it is strictly unnecessary to consider the application of s 425(3) of the Act in the circumstances, it seems clear that the first‑named First Respondent did not have an entitlement to appear before the Tribunal on 5 August 2003 following the transmission by her of her facsimile of 30 July 2003, consenting to the Tribunal deciding the review without the first‑named First Respondent appearing before it.

Then he suggests a construction, which he in fact does not follow, of 425 and then says:

However, it seems clear that the legislative intention was that sub‑section (3) should have effect provided that one or other of the

subparagraphs of sub‑section (2) applied prior to the time fixed for the scheduled hearing to take place –

So this was a second and alternative basis, in his Honour’s mind, for the result and what his Honour is saying, in effect, is that because the first applicant before your Honours consented to the Tribunal deciding the review without her appearing before it, that that fulfilled section 425(2)(b) and the consequence of that by reason of the opening words of that subsection is that the obligation of the Tribunal under 425(1) does not apply.  That is made explicit by 425(3).  But the decision of the majority did not turn upon that provision, your Honour, but the decision of the majority, the primary basis of the decision of the majority, related to section 426A. 

Their Honours also found that there had been no fraud upon the Tribunal.  Any fraud that had been found had been a fraud which was practised by the agent on the client.  But there was no fraud upon the Tribunal.  No member of the Full Court found that this was a case where there had been a breach of procedural fairness.  Justice French also accepted that the case could not be decided in the favour of the present applicants on grounds of procedural fairness.

The fact that section 426A is cast in the terms that it is and if one assumes that the majority were correct in deciding that it had the result that it did, that is, that it impacted upon the two triggers of (a) a proper invitation having issued and (b) the fact of non‑appearance, then a lot of the more general questions that have been discussed would not arise, because there would be a specific authority in the Act.

GLEESON CJ:   Thank you, Mr Johnson.  In this matter there will be a grant of special leave to appeal.

AT 2.15 PM THE MATTER WAS CONCLUDED