SZFDE v Minister for Immigration
[2005] FMCA 1979
•20 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFDE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1979 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where applicants did not attend the Refugee Review Tribunal hearing – fraud – allegation of fraud by a third party purporting to be a solicitor and migration agent – where Refugee Review Tribunal became aware that the migration agent’s registration had been cancelled – where letter to applicants advising migration agent’s registration had been cancelled was returned to RRT unclaimed. PRACTICE & PROCEDURE – Notice of objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – two applicants are children – litigation guardian – appointment of litigation guardian. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.417, 422B, 425, 474, 476(1)(f)(repealed), 477, 483A |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 followed Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 cited R v Gillyard (1848) 12 QB 827; 116 ER 965 cited R v Recorder of Leicester; Ex parte Wood [1947] KB 726 cited R v West Sussex Quarter Sessions; Ex parte Albert and Maud Johnson Trust Ltd [1974] 1 QB 24 cited Lazarus Estates Ltd v Beasley [1956] 1 QB 702 cited Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387 cited Taylor v Taylor (1978-9) 143 CLR 1 cited Baker v Canada [1999] 2 SCR 817 cited Hot Holdings v Creasy (2002) 210 CLR 438 cited Minister for Multicultural Affairs v Mohammad [2000] FCA 1275 R v Deland; Ex parte Willie (1996) 135 FLR 231 Connell v Gunning (1993) 10 WAR 402 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 R v Secretary of State for the Home Department; Ex parte Al-Mehdawi [1990] 1 AC 876 | ||
| First Applicant: | SZFDE | |
| Second Applicant: | SZFDF |
| Third Applicant: | SZFDG |
| Fourth Applicant: | SZFDH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3495 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 September 2005 |
| Date of Last Submission: | 19 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the Refugee Review Tribunal is joined as Second Respondent to the application.
That Applicant SZFDF is appointed litigation guardian of Applicants SZFDG and SZFDH.
That there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on
11th August 2003.
That there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister on 29th August 2002 to refuse protection visas sought by the Applicants.
That the First Respondent is to pay the Applicants’ costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3495 of 2004
| SZFDE |
First Applicant
| SZFDF |
Second Applicant
| SZFDG |
Third Applicant
| SZFDH |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 11th August 2003 and handed down on
2nd September 2003, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant protection visas to the applicants.
Background
The applicants are a husband and wife and their two children. The wife is the first applicant in these proceedings and was the primary applicant for review by the Refugee Review Tribunal. The Tribunal noted at page 122 of the Court Book that no specific convention claims were made by or on behalf of the husband or the two children and their applications depend on the outcome of the first applicant’s application.
The applicants are citizens of Lebanon who arrived in Australia on
27th February 2002. They applied for protection (class XA) visas on 23rd March 2002, which were refused on 29th August 2002.
On 30th September 2002 they applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal wrote to the first applicant on 3rd June 2003, inviting her and the other applicants to attend a hearing originally scheduled for Tuesday 1st July but later changed to Tuesday 5th August 2003.
A Response to Hearing Invitation was faxed to the Tribunal on
30th July 2003, saying:
NO, we do not want to come to a hearing. We consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable us to appear before it[1].
[1] A copy of the Response to Hearing Invitation appears at pages 106 and 107 of the Court Book.
The Tribunal proceeded to deal with the application in the absence of the applicants, relying on the evidence available to it. The Tribunal considered the applicant’s claim that she had worked as a journalist in Tripoli and wrote articles critical of the Tawheed party, which was a fundamentalist political party. The applicant publicly rejected Islam after the attacks in New York and Washington on 11th September 2001. As a result, the applicant claimed that she was threatened and fears that she and her children will be persecuted.
The tribunal’s findings
The Tribunal noted that the applicants’ claims lacked detail and that the Tribunal would have wished to question the applicant during a hearing to establish the relevant facts. In particular, the Tribunal wished to discuss the independent country information with the first applicant to deal with the issues of the availability of state protection and the reasonableness of relocation within Lebanon.
At page 121 of the Court Book, the Tribunal noted, perhaps regretfully:
The 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 was not satisfied on the evidence before it that the first applicant had a well-founded fear of persecution within the meaning of the Convention and affirmed the decision not to grant a protection visa.
The application for judicial review
On 29th November 2004, the applicants filed an application under s.39 of the Judiciary Act 1903 (Cth), seeking the issue of writs of certiorari, mandamus and prohibition.
The grounds of the application are that the decision was affected by fraud, being the fraud of one Fahmi Hussain. The particulars are that:
a)Hussain represented himself to the applicants to be a solicitor and migration agent when he was not, and
b)He advised the applicants that it would be best for them not to attend a hearing before the Refugee Review Tribunal, when he knew that such advice was false and that a failure to attend a hearing would be fatal to the applicants’ application.
Objection to competency
The first respondent Minister has filed a Notice of Objection to Competency, objecting to the jurisdiction of the Court to try the application on the ground that sub-s.477(1A) of the Migration Act 1958 (Cth) provides that an application to the Court under s.483A of the Act for a writ of mandamus, prohibition or certiorari must be made within 28 days of the notification of the decision. It is common ground that the application for review was not filed at the Court until
29th November 2004, which is more than 28 days after the applicants were notified of the Tribunal’s decision.
Service on Fahmi Hussain
The application is an unusual one, relying as it does on an allegation of fraud, which is a serious matter. On 19th May 2005 I directed the applicants’ solicitor to serve on Fahmi Hussain copies of all affidavits filed on behalf of the applicants and the amended application on Fahmi Hussain by Friday 17th June 2005, together with a sealed copy of the orders. The proceedings were adjourned to 23rd June for further mention.
On 23rd June Fahmi Hussain appeared. I directed him to file and serve a Notice of Address for Service by 4.00 p.m. on 15th July 2005 and adjourned the proceedings, so that Mr Hussain could obtain legal advice.
On 8th August 2005 a Mr Knaggs, solicitor, appeared for Mr Hussain. The proceedings were adjourned to the 19th September 2005 for final hearing. Mr Hussain did not appear on that day, nor did his solicitor.
I understand from an affidavit of Elizabeth Biok, solicitor, of
16th September 2005, that she had spoken to Mr Knaggs that day about the service of two subpoenas, one to the Law Society of New South Wales and one to the Migration Agents Registration Authority.
Ms Biok deposed that Mr Knaggs told her that he was no longer acting for Mr Hussain and had no further instructions from him. Ms Biok also deposed that Mr Knaggs said that he would not accept service of copies of the subpoenas on Mr Hussain’s behalf.
Evidence
The adult applicants SZFDE and SZFDF gave evidence by affidavit and in person.
The first applicant deposed in her affidavit of 7th April 2005 that she had applied for a protection visa in March 2002. She had a migration agent acting for her. Whilst she was waiting to hear the result of her visa application her cousin introduced her to a man named Fouad
El-Ashwah who offered to introduce her to a “very, very good solicitor” named Fahmi Hussain who would be able to get permanent residence for her “with great ease”.The first applicant and her husband deposed that they met Mr Hussain at the home of one of her cousins. Mr Hussain did not speak Arabic and Mr El-Ashwah interpreted from English into Arabic for them.
The first applicant said that Mr Hussain said to them:
I am a solicitor. I have a lot of experience in migration matters.
I can take on your case and I can do it the proper way. I have a lot of similar cases and I know the appropriate documentation to lodge.
I need to study your case to decide which is the best way to proceed.
AH[2] is not the best migration agent and is approaching your case the wrong way.[3]
[2] This person’s name has not been published as his identity is not relevant to these proceedings. There is no evidence that this person has acted in any improper way.
[3] Affidavit of first applicant dated 7 April 2005 paragraph 8.
The first applicant deposed that Mr Hussain gave her his business card upon which he had written his mobile telephone number. She said that he told her, in words to the following effect:
This is my mobile phone number. It’s best if you contact me on that number.[4]
[4] First applicant’s affidavit paragraph 10.
The card was annexed to the applicant’s affidavit. She deposed that the handwriting on the back of it is that of Mr Hussain. The handwriting says:
Received the sum of $1500.00 on A/C of professional fees on 26/7/02
(Signature)
FAHMI HUSSAIN
The applicant deposed that she engaged Mr Hussain to act for her in an application to the Refugee Review Tribunal. She changed her address in late 2002 and telephoned Mr Hussain to advise him of her new address.
The applicant deposed that she did not receive a letter dated
17th March 2003 from the Refugee Review Tribunal sent to her old address. The letter said:
Tribunal records indicate Mr David Fahimi Hussain is currently your adviser and authorised recipient (person who receives correspondence on your behalf about your review application).
It has come to the attention of the Tribunal that Mr Hussain is no longer registered as a migration agent with the Migration Agents Registration Authority.
We are writing to ask whether you have made any change or wish to make any change to your adviser and authorised recipient. Would you please complete the enclosed form if you wish to nominate another authorised recipient and adviser.
If you do not respond to this letter, all correspondence will continue to be sent to your address as above.
It is the applicant’s evidence that Mr Hussain telephoned her in
mid-2003 and arranged to meet her and her husband. He came to their home, accompanied by Mr El-Ashwah who acted as interpreter.
The applicant states that she saw a letter from the Refugee Review Tribunal dated 3rd June 2003, inviting her to attend a hearing.
She claims that Mr Hussain said “It is best that you do not go to the hearing of the Refugee Review Tribunal.”
When the applicant queried this advice, she said that Mr Hussain said words to this 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.
The applicant did not attend the RRT hearing and her application was rejected. She deposed that she had paid Mr Hussain a total of $8,400.00 to act for her. She also lent him the sum of $5,000.00.
The applicant deposed that Mr Hussain did write to the Minister seeking a more favourable decision under the provisions of s. 417 of the Migration Act. That letter was unsuccessful, as were two further letters by a friend and a solicitor from the Legal Aid Commission of NSW, Mr James Dagnall. Mr Dagnall also made an unsuccessful request to the Minister for permission to lodge a fresh application for a protection visa.
The second applicant, the first applicant’s husband, gave evidence by affidavit. His evidence corroborated that of his wife.
The applicants were cross-examined by counsel for the Respondent Minister, but were unshaken in their accounts. Both applicants impressed me favourably in their evidence. I observed them in the witness box and they appeared to me to be witnesses of truth. I accept their evidence.
The applicants tendered a copy of a letter dated 5th December 2001 from the Law Society of NSW, showing that Fahmi Hussain’s practising certificate was cancelled on that day. The applicants also tendered a letter from the Migration Agents Registration Authority dated 18th March 2002, showing that Fahmi Hussain’s registration as migration agent was cancelled.
The applicants’ submission
Counsel for the applicants, Mr Karp, submits that the evidence shows that Mr Hussain represented to the first applicant that he was a solicitor, after his practising certificate had been cancelled and his registration as a migration agent had been cancelled. He took money from her to perform services involving an application to the Refugee Review Tribunal.
It is submitted that Mr Hussain induced the first applicant not to attend the hearing of the Refugee Review Tribunal because he did not wish his own actions to be exposed. He knew, or ought to have known, that the first applicant’s non-appearance at a hearing of the Tribunal would be fatal to her case. The applicants submit, noting the seriousness of an allegation of fraud and that it must be strictly proved (see Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103) that Mr Hussain acted fraudulently in advising the applicants.
The applicants submit that the fraudulent representations made in this case were made by Mr Hussain to the first applicant and they affected the Tribunal’s procedure because they induced her not to attend a hearing. This denied the applicant the benefit of a hearing under s.425 of the Migration Act.
The applicants make these submissions:
a)Orders in the nature of constitutional writs will issue if fraud is practised on a Court or administrative tribunal by a third party (i.e. neither the applicant nor the court or tribunal), so as to contaminate evidence and affect the decision (see R v Gillyard (1848) 12 QB 827; 116 ER 965; R v Recorder of Leicester; Ex parte Wood [1947] KB 726; R v West Sussex Quarter Sessions; ex parte Albert and Maud Johnson Trust Ltd [1974] 1 QB 24; Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 721-713).
b)Under the repealed s.476(1)(f) of the Migration Act, a decision of the Tribunal could be set aside if that decision was induced or affected by the fraud of a third party (see Wati (supra); Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387).
c)A person who is denied an opportunity to attend a hearing because of the default of his legal advisers may be denied natural justice and the decision, or judgment, made in his or her absence may in an appropriate case be set aside (see Taylor v Taylor (1978-9) 143 CLR 1).
d)An apprehension of bias on the part of a subordinate officer who has a significant role in reviewing a decision may infect the decision itself (Baker v Canada [1999] 2 SCR 817, cited with approval in Hot Holdings v Creasy (2002) 210 CLR 438 at 448 [23]).
Counsel for the applicants submits that the principles from these authorities are:
i)It is not necessary for the Tribunal or Court whose decision is impugned to be responsible for the conduct that amounts to jurisdictional error.
ii)The actions of a third party may result in fraud or in a denial of natural justice or bias which may ground an order in the nature of certiorari.
iii)The inaction of a third party may result in a person being denied a hearing and so being denied natural justice.
Counsel for the applicants also submits that the Court should reject any submission that, because there is no right to a Tribunal hearing in terms of s.425, only a right to a meaningful invitation to a hearing (Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275), the fraud would have no effect on the Tribunal’s procedure because there was a meaningful invitation issued. The evidence is that the first applicant wanted to attend the hearing but was induced not to attend by the fraudulent conduct of Mr Hussain.
The applicants submit that the Tribunal procedure was tainted by fraud and the decision should be quashed and returned to the Tribunal.
The respondents’ submissions
Counsel for the first respondent conceded that Mr Hussain’s advice to the applicants was seriously deficient and probably either grossly negligent or given in bad faith. However, he submitted that it would be unsafe to reach any precise finding about Mr Hussain’s motives in giving the advice.
It is the first respondent’s submission that the circumstances of this case do not disclose any failure to provide procedural fairness to the applicants. The operation of the ‘natural justice hearing rule’ was limited by the coming into force of s.422B of the Migration Act to the specific requirements set out in Division 4 of Part 7 of the Act.
The obligation to provide an oral hearing was confined to the duty in
s. 425, which is to invite the applicant to attend a hearing, which would include providing a real opportunity to be heard. The first applicant was invited to attend but decided not to attend, thus there was no breach of s.425.
Further, this case can be distinguished from Taylor v Taylor (supra), where the party failed to appear because of a misunderstanding by the party’s legal representatives. Here the applicant chose, admittedly on bad advice, not to attend the hearing.
The first respondent also submits that those cases where superior courts have issued certiorari to quash orders of lower courts that have been obtained by fraud do not, in Australia, appear to have extended beyond the criminal law. Those decisions are an aspect of the jurisdiction assumed by superior courts to correct “irregularities in the proceedings of inferior tribunals” (R v Gillyard (supra); R v Recorder of Leicester (supra at 728); R v West Sussex Quarter Sessions (supra at 39, 42; R v Deland; Ex parte Willie (1996) 135 FLR 231 at 237; Connell v Gunning (1993) 10 WAR 402 at 406-409). They are not cases where the grant of the remedy depends on the lower court or tribunal exceeding its jurisdiction or failing to exercise its jurisdiction (see R v Deland (supra at 236-237).
The first respondent submits that the jurisdiction of the Federal Magistrates Court is wholly statutory (s.483A of the Migration Act,
s.39B of the Judiciary Act). Certiorari is granted as an ancillary remedy where a case is established for the issue of one of the ‘constitutional writs’ but not to cases where certiorari is the only remedy sought. It is traditionally available in circumstances other than jurisdictional error, such as error of law on the face of the record and in cases of ‘irregularity’ as previously referred to. The submission is that the exclusion of certiorari from the list of remedies that define the original jurisdiction of the High Court (and hence the jurisdiction of the Federal Magistrates Court) reflects the nature of that jurisdiction as one concerned with excess of power rather than procedural irregularity or error of law per se (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 23-25 [72]-[77]; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 73 [59]).
Thus, it is submitted that no remedy lies in this Court for irregularity in the procedures of the Tribunal that fall short of jurisdictional error.
Again, the first respondent submits that the authorities cited by the applicants’ counsel do not assist them is that no fraud was practised on the Tribunal. The Tribunal was not resorted to for the purpose of fraud, nor was its decision obtained by fraud in any relevant sense.
Again, it is submitted that this case is a weaker one than that in R v Secretary of State for the Home Department; ex parte Al-Mehdawi [1990] 1 AC 876, where the respondent was denied an opportunity to be heard by the failure of his advisers to do what they were required to do. In Al-Mehdawi, Lord Bridge of Harwich said at 898E-F:
A party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him..
Finally, counsel for the first respondent submits that the ground of review available under the former s.476 (1)(f) where a decision was “induced by fraud” was available where assertions had found their way into the material before the Tribunal and influenced the actual decision (Wati (supra); Jama (supra). He difference here, it is submitted, is that this is a case where fraud influenced an applicant’s decision as to how to present her case.
Conclusions
This is certainly an unusual case, and I am satisfied that Mr Hussain was made aware of the allegations against him and was, albeit for a short time, legally represented. He appears to have chosen not to participate in the proceedings any further than he did. I found the applicants’ evidence to be compelling and believable. I am satisfied that the evidence shows Mr Hussain to have acted fraudulently in his dealings with the applicants for personal gain. To my mind, as a former solicitor whose practising certificate had been cancelled and as a former migration agent whose registration had been cancelled, he should not have involved himself in any way with the applicants’ case before the Refugee Review Tribunal. He extracted money from the applicants under false pretences on the evidence before me. His actions in holding himself out to be a solicitor and charging money for his dealings with the applicants may well constitute a breach of the law.
I propose to direct the Registrar to refer a copy of this decision to the Legal Services Commissioner.
I agree with the respondents that the repealed s.476(1)(f) of the Migration Act does not assist the applicants.
I do not agree that I should follow the decision in Al-Mehdawi. To my mind, it does not sit with the decision of the High Court in Taylor v Taylor, which I believe that I should follow. I note that Gibbs J said at [9]:
It is no answer to a party who asks the court to set aside an order made against him in his absence at a hearing of which he had no notice to tell him that he has a remedy against his solicitor.
In such a case, assuming that there is a real question to be tried, justice requires that the order, having been made in breach of a fundamental principle of natural justice, should be set aside, and that the matter should be reconsidered on its merits.
True it is that in this case the applicants were aware of the invitation to the hearing, but were dissuaded from attending by the fraudulent behaviour of Mr Hussain. It was his actions that deprived the invitation to the hearing from its quality of being a meaningful invitation under
s.425.
It is also significant, in my view, that the Tribunal knew that the applicants’ adviser was no longer registered as a migration agent.
The letter sent to the applicant by the Tribunal on 17th March 2003 was procedurally flawed, in that it was not “fail-safe”. The letter said:
If you do not respond to this letter, all correspondence will continue to be sent to your address as above.
The Tribunal also knew that the applicants had not received that letter. The letter was returned unclaimed to the Tribunal on
20th March 2003 (see Court Book page 97). It was not open to the Tribunal to assume that no response meant that the applicants were aware of the status of Mr Hussain but did not wish to change their adviser or authorised recipient. On the contrary, they had proof that the applicants were not aware of that fact.
Accordingly, the Tribunal erred in sending out the letter inviting the applicants to attend the hearing. The Tribunal sent the letter to two addresses:
i)the applicants’ old address from which the Tribunal’s previous letter had been returned unclaimed nearly three months earlier; and
ii)the address of Fahmi Hussain, who the Tribunal knew to be no longer registered as a migration agent with the Migration Agents Registration Authority.
Pages 101 and 102 of the Court Book show that on 24th June 2003 the Tribunal received a change of address notification purporting to be from the applicant, giving a change of home address notification and also saying:
My Solicitor Hussain Address:
Bridge Port International
Level 25-2 Chifley Square Sydney 2000.
Ph: 9293 2851
Fax: 9293 2828
The document was typed but unsigned. What it did do was place the Tribunal on notice that Mr Hussain was apparently in practice as a solicitor, although his practising certificate had been cancelled in 2001 and his registration as a migration agent had been cancelled in 2002.
The Tribunal continued to send correspondence to Mr Hussain’s address. The fact that the Tribunal continued to forward correspondence to Mr Hussain, knowing that his registration had been cancelled, is to my mind sufficient to taint the proceedings before the Tribunal to such an extent as to constitute jurisdictional error.
If the Refugee Review Tribunal becomes aware that a migration agent has had his or her registration cancelled, it should not continue to communicate with an applicant through that former agent.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:S.Polley
Date:27 January 2006
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