SZKPI v Minister for Immigration
[2008] FMCA 584
•25 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 584 |
| MIGRATION – Whether applicant engaged an agent – whether fraud on applicant or on Tribunal – must be fraud on the applicant before there can be fraud on the Tribunal – whether breach of ss.424A or 425. |
| Federal Magistrates Court 2001 r.44.12 Migration Act 1958, ss.306AC, 312B, 424A, 425, 425A, 426, 426A, 441A, 474 Evidence Act 1995, s.140(2)(c) Migration Regulations 1994, regs.4.35D |
| SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Briginshaw v Briginshaw (1938) 60 CLR 336 Rejfek v McElroy (1965) 112 CLR 517 SZIVK v Minister for Immigration & Citizenship [2008] FCA 334 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 |
| Applicant: | SZKPI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1446 of 2007 |
| Judgment of: | Turner FM |
| Hearing dates: | 5 September 2007, 5 October 2007, 2 & 5 May 2008 |
| Date of Last Submission: | 5 May 2008 |
| Delivered at: | Melbourne (via videolink to Sydney) |
| Delivered on: | 25 June 2008 |
REPRESENTATION
| Solicitor for the Applicant: | Mr M Jones |
| Solicitors for the Applicant: | Michael Jones |
| Counsel for the Respondent: | Mr J.A.C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application and the amended application are dismissed.
The Applicant shall pay the First Respondent’s costs to be taxed in default of agreement.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1446 of 2007
| SZKPI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 January 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection (Class XA) visa. By order of 29 May 2007 a hearing under Rule 44.12 of the Federal Magistrates Court Rules 2001 was dispensed with and the matter proceeded to a final hearing. By Order of 5 October 2007 the matter was referred to the Registrar for referral to a lawyer on the pro bono panel for legal assistance. The applicant was represented by Counsel at the hearing.
Background
On 21 September 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection (Class XA) visa. In this application she claimed to fear persecution by the Chinese government due to her Christian religious beliefs in the Fuging, Fujian Province.
The application was refused by a delegate of the first respondent on
29 September 2006(CB 38–44) and by the Tribunal on review on
31 January 2007(CB 65–71).
The matter is now before this Court pursuant to an application for judicial review filed on 7 May 2007, and an amended application filed on 20 July 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the applicant engaged a migrant agent who committed fraud on the applicant or on the Tribunal.
·Whether the Tribunal complied with its obligations under ss.424A and 425 of the Migration Act 1958 (the “Act”).
The application
The applicant filed an application on 7 May 2007 setting out the following grounds and particulars:
“1. The was an error of law in the Tribunal’s decision constituting jurisdictional error;
2.There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
1. As a matter of fact, my application for a protection visa has been prepared by a person who is a migration agent (“the Agent”). I had to need the Agent’s help, because I do not understand English; and I do not have any know about how to seek a protection in Australia. (sic)
2. The Agent, however, did not show his name on my application form. He told me that he would be in troubles with the Department of Immigration and Citizenship (“the Department”) if the Department found that he had prepared my protection visa application. (sic)
3. I had never ever sent any facsimile to the Tribunal; and therefore, the following information is definitely NOT the one that I have provided to the Tribunal:
‘This is [the applicant], I have applied for RRT review, my case number is [xxx]. I have received your hearing invitation. But, I am in Brisbane now, I will return to … after Christmas. Can I ask you to postpone the hearing to January next year. I also need time to ask a church for a reference letter.
You can still sent letter to my address at … My roommate will collect letters for me.’ (sic)
4. I have NEVER signed any documents like that, and I have NEVER been to Brisbane; and I believe that the facsimile is written and sent by the Agent. Particularly, the Agent has counterfeited my signature.
5. As a matter of fact, the Agent threatened me by saying to me that I must be arrested by the Australian Government if I attend the hearing.
6. The Tribunal has apparently considered the above-mentioned information as a reason or part of reason for affirming the decision that is under review. However, the Tribunal failed to comply with its obligation under s.424A(1) of the Act, because:
(a) the Tribunal failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the information that the Tribunal considers would be the reason, particulars, or a part of the reason, for affirming the decision that is under review; and
(b)the Tribunal failed to ensure, as far is reasonably practicable, that I understand why it is relevant to the review; and
(c)the Tribunal failed to invite me to comment on it.
7. I therefore, do not think that my application has been considered fairly and properly.”
The applicant filed an amended application on 20 July 2007 setting out the following grounds and particulars:
“1.The Tribunal ignored or failed to consider my claim or ignored other relevant materials which was before it or misunderstood my claim or made a mistake in relation to an important finding of fact.
Particulars:
1.1 My application for a protection visa has been prepared by a person who is a migration agent (“the Agent”). The Agent was Mr … who was from …. However, while the Agent prepared the protection application for me, he did not expose that he had the real person who had prepared my protection application. He told me that he would be in troubles with the Department of Immigration and Citizenship (“the Department”) if the Department found that he had prepared my protection visa application. It is apparently that I have been misled by the Agent in the end. (sic)
1.2I have never ever sent any facsimile to the Tribunal; and therefore, the following information is definitely NOT the one that I have provided to the Tribunal:
‘This is [the applicant]. I have applied for RRT review, my case number is [xxx]. I have received your hearing invitation. But, I am in Brisbane now, I will return to … after Christmas. Can I ask you to postpone the hearing to January next year? I also need to ask a church for a reference letter.
You can still sent letter to my address at … My roommate will collect letters for me. (sic)
I NEVER signed any documents like that, and I have NEVER been to Brisbane; and I believe that the facsimile is written and sent by the Agent. Particularly, the Agent has counterfeited my signature. As a matter of fact, the Agent threatened me by saying to me that I must be arrested by the Australian government if I attend the hearing.’
2.The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
Particulars:
2.1 The Tribunal has apparently considered the above-mentioned information as a reason or part of the reason for affirming the decision that is under review.
However, the Tribunal failed to comply with its obligation under s.424A(1) of the Act, because:
(a) the Tribunal failed to give me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) the Tribunal failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and
(c) the Tribunal failed to invite me to comment on it.
2.2I, therefore, do not think that the Tribunal has complied with its obligations under s.424A(1) of the Act.
3. The Tribunal failed to comply with its obligations under s.425 of the Act.
3.1 I have not been provided a genuine opportunity to provide oral evidences in support of my claims and to present my argument against the issues in relation to my application.”
Findings of the Court in relation to the grounds in the application
The sole ground argued before the Court is that the migration agent (“the agent”) committed fraud on the Tribunal and/or on the applicant
The question is “who’s evidence the Court believes?” The Court makes the following observation having observed and listened closely to the evidence of the applicant, her husband and the agent said to have acted for the applicant. There was no corroborating evidence for the version of events of the applicant, or of the agent. The balance of probabilities has to be applied having regard to the principle in Briginshaw (post) and s.140(2)(c) of the Evidence Act 1995.
When giving evidence the applicant selectively made brief direct eye contact with the Court on non–contentious issues (for instance the telephone number of the agent), but avoided eye contact on contentious issues, for instance, whether she signed the email of 20 December 2006 (CB 54). Her evidence developed and changed after she became aware of the fact that her application (CB 1) contained information that must have been provided by her, having first denied providing that information. The inconsistencies in, and development of, her evidence were shown by Mr Pott’s thorough analysis of the transcript of the hearings before the Court.
The applicant’s husband avoided direct eye contact with the Court at all times while giving evidence. His evidence on some issues was shown to be inconsistent. His evidence however has no direct bearing on the case, except to the extent that he said that he was present when his wife made some calls to the agent. The agent had in fact acted for the husband. The husband could give no details of when those calls were made, or what was said. He did not say whether the phone calls related to his application. He admitted having lied to the Tribunal that heard his application (Court transcript page 97, line 20).
The agent maintained direct eye contact whenever sought by the Court. He was responsive and direct in his answers. He appeared to search his memory to give precise answers. No inconsistencies in his evidence were shown: his evidence was coherent and plausible, and his answers direct and responsive. He appeared to be comfortable when answering questions. The Court accepts the agent as a witness of truth. The Court prefers the evidence of the agent to that of the applicant and her husband. On the balance of probabilities fraud by the agent has not been established.
It was submitted for the applicant that s.306AC of the Act provided a reason for the agent to fail to disclose in the application form that he was acting for the applicant (CB 9).
Section 306AC provides:
“Minister may refer registered migration agent to the Migration Agents Registration Authority
Referral
(1) The Minister may refer a registered migration agent to the Migration Agents Registration Authority if the agent has a high visa refusal rate in relation to a visa of a particular class.
Note 1: If the Minister is considering doing so, the Minister must invite the agent to make a submission on the matter and must consider any submission that is made: see section 306AE.
Note 2: If the Minister refers an agent, the Authority must consider whether to discipline the agent: see section 306AG.
Note 3: The Minister's decision and any decision of the Authority to discipline the agent are reviewable by the Administrative Appeals Tribunal: see section 306AJ.
High visa refusal rate
(2) This is how to work out if the agent has a high visa refusal rate in relation to a visa of a particular class:
Method statement
Step 1. Work out the number of:
(a) valid applications for a visa of that class;
(b) applications for review by a review authority of a decision to refuse to grant a visa of that class;
made during a period determined by the Minister under this Division in respect of which the agent has given immigration assistance to the applicants concerned.
Note: Subsections (3) and (4) provide for certain applications not to be counted.
Step 2. Work out if the number at step 1 is equal to or greater than the number determined by the Minister under this Division.
Step 3 . If it is, work out in respect of the applications covered by step 1 the number of decisions to refuse to grant a visa that are standing at the end of all the proceedings (including any appeals) resulting from such decisions.
Step 4 . The agent has a high visa refusal rate in relation to a visa of that class once the number at step 3 expressed as a percentage of the number at step 1 is equal to or greater than the percentage determined by the Minister under this Division in relation to that class of visa.
Immigration assistance at visa application stage and review stage
(3) If:
(a) the agent gives immigration assistance to a person in respect of a valid application by the person for a visa of a particular class; and
(b) the agent later gives immigration assistance to the person in respect of an application (the review application) by the person for review by a review authority of a decision to refuse to grant that visa;
then the review application is not to be counted for the purposes of step 1 of the method statement.
Immigration assistance in a prescribed capacity
(4) An application of a kind covered by step 1 of the method statement is not to be counted if the agent gave the immigration assistance in a prescribed capacity.
Minister to have regard to any matter prescribed by the regulations
(5) In deciding whether or not to refer a registered migration agent to the Migration Agents Registration Authority under this section, the Minister must have regard to any matter prescribed by the regulations.”
The agent denies filling in the application form. He denies that s.306AC would have provided a motive for him to not disclose his involvement. He was aware of s.312B of the Act which makes it an offence for a registered migration agent to give immigration assistance to a person without notification that they are giving that assistance.
Section 312B provides:
“Notification of giving of immigration assistance to review applicants
(1) If:
(a) a registered migration agent gives immigration assistance to a person in respect of a review application made by the person; and
(b) the agent gives the assistance after having agreed to represent the person;
the agent must notify the review authority concerned in accordance with the regulations and within the period worked out in accordance with the regulations.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) In this section:
"review application" means an application for review by a review authority of a decision to refuse to grant a person a visa.”
A breach of s.321B is a strict-liability offence. It submitted by the Respondent that the risk from committing an offence under s.321B outweighs the risk of being found to have a “high refusal rate”. On balance, breaching s.312B appears to have more serious repercussions for the agent than being found to have a high refusal rate. It was not established that the agent had a high refusal rate. Therefore, based on the agent’s evidence and the relevant sections, the Court does not find that the agent filled out the application form (CB 1) but failed to disclose that he was acting (CB 9) because of the implications of s.306AC. Further, a breach of s.312B has not been established as the Court finds below that the agent did not act for the applicant.
The Court accepts that the applicant along with her husband and other people (including A.H), met the agent in late 2006. The Court accepts that the agent does not remember meeting the applicant at that time. The Court does not accept that a business relationship was established between the applicant and the agent then, or at any other time. The Court accepts that the agent does not recall seeing the applicant before the hearings in the Court which commenced on 5 September 2007. That evidence is consistent with the evidence of the agent that he did not represent the applicant.
The Court accepts that the applicant used her mobile telephone to call the agent a number of times between 19 December 2006 and February 2007. There is no acceptable evidence as to what was said during those calls. The Court accepts that the agent does not recall the detail of any of those phone calls; nor does the applicant.
The standard of proof applicable to all issues in this matter is the balance of probabilities. Section 140 of the Evidence Act 1995 provides as follows:
“Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.”
The Court also has regard to the test in Briginshaw (post).
The Court accepts that some of the phone calls may have related to enquiries by the applicant about applying for a visa or about her husband’s application. That does not establish that the agent was acting for the applicant. The applicant gave evidence that the agent “did not answer my phone calls because he argued with my husband” (Court transcript, 2 October 2007, page 42, line 42). That is a strange view to hold, if the applicant believed that the agent was acting for her. The evidence is that there were group meetings where a person called “A.H” introduced the agent to potential clients.
The Court accepts that the applicant’s husband became a client of the agent which ended in his unsuccessful application for a visa. The applicant and her husband blame the agent for that outcome and allege that the agent failed to interpret and put forward relevant information to support the husband’s application. They deny that they are seeking revenge against the agent for that result. However, the applicant holds the agent in part responsible for the fact that “her husband ended up in immigration detention” (Court transcript, 20 October 2007, page 10, line 32).
The Court does not accept that the agent signed and sent the email to the Tribunal on 20 December 2006 (CB 54). There is nothing to contradict the agent’s direct denial when the contention was put to him.
The Court is not able to determine whether the signature on that email is the same as the signature on the applicant’s declaration (CB 25) or passport (CB 31). The applicant says that the signature on the email is not her standard signature and that she did not sign the email of
20 December 2006 (CB 54). The Court must accept that evidence as there is no evidence to the contrary. However, that does not establish that the agent signed that email. The Court has to ask itself “Why would the applicant send an email to the Tribunal advising it of an incorrect address of the applicant?” The answer could be that, as the applicant gave evidence that she is unable to read or write English, she may not have known which address was stated in the email. However, she states that she did not sign it. The Court is unable to decide who composed, signed and sent the email. It could have been “A.H”. The only probative evidence before the Court which enables the Court to make a finding on the matter, is the evidence of the agent. He stated firmly that he did not send it. It must be recalled that the applicant cannot read or write. The document may have been prepared for her and she may have signed it without knowing its exact content. Much uncertainty surrounds the issue.
The agent denies signing and/or sending that email. The Court accepts the evidence of the agent in general and in particular on this issue.
The Court accepts also the denial by the agent that he forged any signatures of the applicant on any other documents. The Court is supported in these conclusions by asking itself the question “why, when the applicant has given evidence that she would willingly have signed all documents required by the agent, would the agent forge her signature?” (Court transcript, 2 October 2007, page 19, line 1).
As the Court does not accept that the agent sent the email (CB 54), he did not cause the Tribunal to send the s.425 invitation to the incorrect address (CB 56). The Court is not able to determine who wrote, signed or sent the email, but it was received by the Tribunal (CB 54).
The invitation to appear was sent to the last address for service of the applicant supplied to the Tribunal.
The invitation to attend:
·Informed the applicant that the Tribunal was unable to make a decision in her favour on the information before it, and invited the applicant to attend a hearing in order to submit further evidence in support of her claims: s.425;
·Provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear: s.425A(1);
·Was sent to the applicant by post to the last address for service nominated by the applicant: s.441A(4)(c)(i);
·Provided a period of notice to the applicant that complied with the prescribed period of 14 days: reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and
·Contained a statement to the effect of s.426A regarding the options available to the Tribunal if the applicant failed to appear at the scheduled hearing.
Accordingly, the invitation complied with the statutory requirements contained in reg.4.35D and ss.425(1), 425A, 426(1) and 441A(4) of the Act. No breach of ss.425 or 425A occurred. The invitation complied with requirements in the Act and Regulations.
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. (Court’s emphasis)
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ (ante) per Downes J at [5]. (Court’s emphasis)
As stated by the Tribunal at (CB 68.3):
“On 16 November 2006 the Tribunal wrote to the applicant, at the address given in the application for review advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 21 December 2006.
The invitation was sent to the address provided by the applicant to the Tribunal in accordance with ss.425A(1)(a) and 441A(4) of the Act. No response to the hearing invitation was received.
On 20 December 2006 the Tribunal received the following facsimile from the applicant.
‘This is [the applicant]. I have applied for RRT review, my case number is [xxx]. I have received your hearing invitation. But I am in Brisbane now, I will return to … after Christmas. Can I ask you to postpone the hearing to January next year. I also need time to ask a church for a reference letter.
You can still send letter to my address at … My roommate will collect letters for me.’
No telephone number or facsimile number was provided with the facsimile.
As a result of the facsimile from the applicant, on 20 December 2006 the Tribunal wrote to the applicant again, at the address given in the application for review advising that it had considered all the material before it relating to her application it was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 January 2007.
The invitation was sent to the address provided by the applicant to the Tribunal in accordance with ss.425A(1)(a) and 441A(4) of the Act. No response to the hearing invitation was received. The applicant has no advisor; nor had she supplied any phone number; so there were no other avenues of contacting her.
The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear.
In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.”
and at (CB 70.8):
“The applicant has made a number of unsubstantiated claims. The applicant has provided a general statement about her fear of returning to China. She has provided insufficient details about her Christian practice in Fujian and Shanghai, about the church she was planning to build, the reaction of the Chinese authorities and her employer. The Tribunal is unable to establish the facts of the matter. The applicant did not send any further material, nor did she take the opportunity offered to her of attending a hearing and presenting her claims orally and as a result the Tribunal is unable to explore her claims with her at the hearing. This leaves the Tribunal with claims that are untested and stated in general terms.
In these circumstances 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 as qualified by the Act.”
The applicant gave the Tribunal an address for service in her application (the first address); The same address was confirmed in the email of 20 December 2006 (CB 54). That address was changed to her new address by a Notice of Change of Contact Details dated 5 January 2007. The invitation to attend the hearing was sent to the first address on 20 December 2006 (CB 56). It was sent before the Notice of Change was submitted. The invitation was therefore sent to the applicant’s “last address for service provided to the Tribunal at the time”. Even if the email of 20 December 2006 had not been sent, the invitation was sent to the “last notified address for service”. The email therefore did not cause the invitation to attend to be sent to the incorrect address. The Tribunal therefore complied with the Act and Regulations. The email did not deny the applicant the opportunity to appear before the Tribunal.
It has not been established that the agent committed fraud on the applicant or on the Tribunal.
The applicant relied on five decisions.
Briginshaw v Briginshaw (1938) 60 CLR 336 was relied on for the proposition that the ordinary standard of proof in civil matters is “on the balance of probabilities” subject only to the rule of prudence that the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. Grave consequences may flow from a finding of fraud by the agent – as submitted by Counsel for the respondent it could lead to proceedings to take away the agent’s registration as a migration agent and would certainly damage his reputation.
The decision in Rejfek v McElroy (1965) 112 CLR 517 was relied on to establish that the appropriate standard of proof is “on the balance of probabilities” as stated in Briginshaw. The Court accepts that as the appropriate standard.
The decision in SZIVK v Minister for Immigration & Citizenship [2008] FCA 334 was referred to as a situation where signatures had been forged and where the failure of an applicant to attend the Tribunal hearing was allegedly a result of the fraudulent conduct of his migration agent. The dissenting judgment of Justice French in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 398–400 was referred to in paragraph 16 of SZIVK, being that “a decision of the Refugee Review Tribunal was vitiated because the applicant was denied the opportunity to appear before the Tribunal due to the fraudulent conduct of his migration agent”. In paragraph 20 of SZIVK Justice Finkelstein referred to the decision of the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 where it upheld Justice French’s dissenting judgment. His Honour said that:
“The High Court made clear that, even in circumstances where the tribunal acts blamelessly, it may nevertheless fall into jurisdictional error if its decision is affected by fraud of a third party such as an applicant’s migration agent. The High Court said (at 77) that when a migration agent’s fraudulent conduct stultifies the critically important natural justice provision in Div 4 of Pt 7 of the Act, the decision of the tribunal is to be regarded in law as no decision at all.”
In the present case the Court is satisfied that someone other than the agent signed and sent the email of 20 December 2006. It is possible that the applicant signed it. SZIVK also involved a situation where the Federal Magistrate refused to decide whether the migration agent acted fraudulently. The principal question in issue before the Court in that case was “whether the Federal Magistrate was entitled to decline to resolve that issue” (para 1). In the present case the Court has decided that the agent did not act fraudulently. The decision in SZIVK is therefore of no assistance to the applicant.
It has not been established on the balance of probabilities that the email of 20 December 2006 was sent to the Tribunal by a third party.
It is just as probable that the applicant signed it, not knowing exactly what was stated in it. The fact that the applicant gave evidence that she did not have access to a computer is not conclusive.
In SZIVK his Honour Justice Finkelstein referred in para 29 to the decision in SZFDE where the Federal Magistrate set aside the decision of the Tribunal because “the agent acted fraudulently for personal gain, extracted money under false pretences and dissuaded the applicants from attending the hearing by fraudulent behaviour.” None of those factors has been established in the present case. Here the agent denies receiving money from the applicant to act on her behalf (no receipt or other proof has been provided) he denies sending the email on
20 December 2006, and denies threatening the applicant that she would be arrested if she attended the Tribunal hearing. The Court accepts those denials.
On appeal to the Full Federal Court against the decision of the Federal Magistrate in SZFDE 154 FCR 393, the finding that the agent acted fraudulently was not challenged. Justice French decided that the fraudulent conduct vitiated the decision of the Tribunal (ibid para 6).
On appeal to the High Court, SZFDE (2007) 237 ALR at 64 the Court decided that “where fraud of a migration agent subverts a s.425 invitation from the Tribunal to attend a hearing, it is a matter of the first magnitude because of the central importance of the natural justice hearing rule in the legislative scheme set out in Div 4 Pt 7 of the Migration Act.”
The Court finds no such fraud by the agent here.
The applicant then relied on the decision of the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 at [51] and [52] that the Tribunal 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.
Having found in the present case that it has not been established that fraud was committed on the Tribunal, the decision in SZFDE is distinguishable.
The decision in Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 was referred to by the applicant. In paragraph 33 the Full Court referred to the decision of the High Court in SZFDE.
At paragraph 33 the Full Court decided that:
“…But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.”
In SZFDE (ante) the High Court decided that “No doubt Mr H…was fraudulent in his dealings with the appellants.” The Court has found that fraud has not been established here. Fraud by the agent on the applicant or the Tribunal has not been established. It is not open to the Court to infer fraud. “It is not possible to properly infer from the material before the Court that it was the agent’s dishonest failure that resulted in the content of the Tribunal’s invitation not being conveyed to the Respondent (SZLIX ante).
If the Court had found that the agent signed and sent the email of 20 December 2006, and it has not, there would be nothing to establish that the inclusion of the incorrect address for service was the result of anything more than “bare negligence or inadvertence”; that would not establish fraud on the applicant or on the Tribunal. “Fraudulent misrepresentation is a false statement of fact, made by a person who does not believe truth of the statement or is recklessly indifferent to whether it is true or not, to another with the intention that the person will rely on it: Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676; 18 ALR 124; Commercial Banking Company of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337; [1972-73] ALR 393. It is a misrepresentation where the representor lacks belief in the truth of the representation or makes it recklessly, not caring whether it is true or false: Civil Co-op Society of Victoria Ltd v Blyth (1914) CLR 17 CLR 601; [1914] VLR 305. Moral culpability or turpitude is vital in fraudulent misrepresentation; mere carelessness is not enough: Derry v Peek (1889) 14 App Cas 377”. (Butterworths Australian Legal Dicitionary). The decision in SZLIX therefore does not assist the applicant.
SZFDE requires that the agent in question is fraudulent in a way that affects the Tribunal’s Part 47 decision–making. But before that omission can properly be said to have occasioned fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the applicant SZFDE at [51]”. MIC v SZLIX (ante).
Fraud on the applicant or on the Tribunal has not been established.
A breach of s.425 has not been established. An error of jurisdiction by the Tribunal has not been established.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 25 June 2008
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