SZLHP v Minister for Immigration and Citizenship

[2009] HCATrans 92

[2009] HCATrans 092

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S437 of 2008

B e t w e e n -

SZLHP

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 2009, AT 3.17 PM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   If the Court pleases, I appear for the applicant.  (instructed by SBA Lawyers)

MR G.T. JOHNSON:   May it please your Honours, I appear for the first respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Thank you, and there is a submitting appearance for the second respondent.

MR JOHNSON:   That is correct, your Honour.

FRENCH CJ:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honours.  There are two streams to the arguments raised in the application.  The first stream does not need any disturbance of the federal magistrate’s finding that the applicant had some involvement in the fraud perpetrated by the migration agent.  The second stream deals with the errors in principle which have occurred both in the Federal Magistrates Court and which remained uncorrected by the Full Federal Court in reaching that conclusion that the applicant was engaged or participated in the fraud of a migration agent. 

GUMMOW J:   The second point again?

MR PRINCE:   The second point, your Honour, is that the finding by the federal magistrate ‑ ‑ ‑

GUMMOW J:   Of the involvement?

MR PRINCE:   Of the involvement was flawed and ‑ ‑ ‑

GUMMOW J:   You ordinarily would not get in to that.

MR PRINCE:   Only as a matter of ‑ ‑ ‑

GUMMOW J:   Was it agitated in the Federal Court?

MR PRINCE:   It was.

GUMMOW J:   And you lost?

MR PRINCE:   Yes, but the point ‑ ‑ ‑

GUMMOW J:   .....factual matter?

MR PRINCE:   Well, your Honour, no.  In my submission, it goes beyond that.  There is a point of principle, because the federal magistrate made the finding that my client was involved in a fraud by reference to the manner of his arrival in Australia on a false passport.  That finding would mean that all people who ‑ ‑ ‑

GUMMOW J:   The question is not whether the federal magistrate was wrong.  The question is whether the Full Court erred in not correcting the magistrate.

MR PRINCE:   Yes, your Honour, I meant to say that.

GUMMOW J:   Where does the Full Court deal with this point?

MR PRINCE:   In the reasons of Justice Lindgren his Honour ‑ ‑ ‑

FRENCH CJ:   Can you take us to the page in the application book?

MR PRINCE:   Yes, I will, your Honours.  The judgment of his Honour Justice Lindgren starts at page 50 and the relevant passage is at paragraph 32 on page 52.  His Honour Justice Lindgren accepted the federal magistrate’s findings that the appellant:

“was a party to the fraud” and that his fraudulent activity began before the migration agent became involved.  His Honour was referring to the appellant’s having left China under a different name on a Chinese passport, having obtained an Indonesian passport in another name, having entered Australia on a false passport with a false identity, and having completed his arrival card under that false identity.

That is a series of events which commonly occurs in respect of people who are seeking protection.  It is contemplated by the Convention.  It is a finding which ‑ ‑ ‑

GUMMOW J:   What is contemplated by the Convention?

MR PRINCE:   That people will arrive in the country from which they seek protection by using false documents or false travel papers and the like.  Indeed, applicants for refugee status or for protection are often criticised if they do not arrive in Australia on false passports because it is indicative of them not having any genuine fear of persecution in their home country and the act of having a passport of one’s home country might be indicative of the ability to obtain its protection. 

FRENCH CJ:   I think it is more often a matter of factual inference, in my experience, that the fact you are able to obtain a passport, the fact you are able to go through and exit the persecuting country on your passport is an indication that you may not be being persecuted.

MR PRINCE:   Quite, and it is often a relevant factor.  In fact, it is often a relevant factor in Tribunal decisions.  If this finding is to the effect that such behaviour constitutes fraudulent conduct, that is a ‑ ‑ ‑

GUMMOW J:   Branson said “The inference is irresistible”, page 47.

MR PRINCE:   Yes, her Honour did.

GUMMOW J:   Paragraph 17.

MR PRINCE:   At paragraph 17 at page 47 and, indeed, her Honour goes on to find – and I may be going a little off the topic – but in paragraph 18 at about line 26 her Honour says:

the appellant knowingly embarked on a course of conduct calculated to deceive the relevant Australian authorities as to his true identity, citizenship and personal history.

I might say at this point, your Honours, that whilst it was put to the applicant in cross‑examination that he knew that the protection visa applications advanced were not in his name and were in a different nationality, he did not know the full contents of the document and he had been given advice that this is what he had to do in order to obtain protection from the Australian authorities by the rogue migration agent. 

There was no cross‑examination of him alleging that that conduct engaged by him in a cause of conduct knowingly seeking to deceive the Australian authorities.  The evidence that was below was that he had been told that this was the appropriate thing to do when one arrives on a false passport.  The fact that he knew that the document was being put forward in a false name is not conclusive.  It is only half of the picture.  It is not the other half of the picture which is he knows that it is going forward in that name and he knows that that is wrong. 

The reason that that is significance in this case is because the rogue migration agent’s advice, which does not ever seem to have been challenged, is that he was told, because you arrived on a false passport you have to make this application in a false name or in the name that was attached to your passport and the nationality that was attached to your passport.  He tried to convey to the migration agent his true claims for asylum based on his Chinese citizenship and his Christianity ‑ ‑ ‑

FRENCH CJ:   This is not an argument that he was not involved in an attempt to deceive the Tribunal as to his nationality.  Rather, it seems to be an argument that his will was overborne or he was misled by advice from the migration agent that he should do the wrong thing.

MR PRINCE:   It is certainly put on that basis, your Honour, but ‑ ‑ ‑

FRENCH CJ:   Well, that is not a challenge to the findings of the Full Court, is it?

MR PRINCE:   In my submission, it also goes further to challenge those findings because this goes beyond a finding that he simply told an untruth on the application form or knew that it went through in an untrue way or containing false information.  This makes a further finding that it was calculated to deceive the Australian authorities.  Now, in circumstances where he was told that this is the appropriate way to deal with the Australian authorities by a registered migration agent, that is a different notion.  That should have been the subject of cross‑examination on that point. 

There is no evidence that he knew that what was happening when that application went forward was a knowing fraud and a deceit upon the Australian Government.  He knew simply the bare fact that the migration agent had told him that this was the way that he had to proceed and he knew the bare fact that an application was being put forward with a different name and a different nationality in the name of what was on his passport. 

So that the extra step take by the Full Court to infer fraud, which is obviously a very serious finding, in my submission, did not properly apply the principles that would be applied in making a finding of fraud, as was done against the appellant.  I should say, your Honours, that his Honour Justice Lindgren appears to have found that at paragraph 28 on page 51 of the application book that:

The appellant accepts that if he had initiated or was a party to the fraud, he would have no cause for complaint –

and there is reference to NAWZ.  That concession was not made in those terms.  There was an issue about the operation of NAWZ which is a case about whether or not a valid application exists in circumstances where a document has been signed by the applicant in a false name, and it was accepted that if he signed the application form and he knew that it was being made in that name, then it would constitute a valid application for the purposes of NAWZ. 

The concession did not go further and your Honours will see that from Justice Graham’s reasons where his Honour records the submission that was made at page 71 of the application book at paragraph 82 where his Honour records that:

the appellant submitted . . . that the learned Federal Magistrate erred in concluding that if the appellant knew of the fraud or participated in it, there would be no jurisdictional error.

I suppose I can move directly to the second stream of argument which challenges the finding about fraud against my client.  If I could step back to the first stream just briefly.  Even assuming that there was some participation in the fraud by my client in ultimately giving effect to what the migration agent did, that would not go to a question of whether or not there is jurisdictional error because the decisions in SZFDE of this Court, which, in my submission, ultimately approved the reasoning of your Honour the Chief Justice below, is not a species or a defined species of third party fraud.  Rather, it is an analysis of section 425 of the Act, what it requires and where that process miscarries if the Tribunal’s decision is at all affected by a fraud, irrespective of the source of that fraud. 

In respect of that point, I would ask your Honours to have regard to the findings of his Honour the Chief Justice when your Honour was in the matter of SZFDE in the Full Court of the Federal Court at 154 FCR 365 at paragraph 128 on page 399. Your Honours, unfortunately the ALR version of the report seems to have made its way to your Honours.

GUMMOW J:   Paragraph number?

MR PRINCE:   It is paragraph [128], your Honours.  It is at page 73 or page 25 in the top right‑hand corner of the document that your Honours have.  This is the decision of the Full Court.

BELL J:   I am sorry, the paragraph number again?

MR PRINCE:   Is [128], your Honour.  That fundamental principle was picked up by this Court in SZFDE at paragraph 47 which is at page 205 of 232 CLR 189. It follows on from his Honour’s reasoning – sorry, your Honour the Chief Justice’s reasoning in that case is also significant at paragraph 106 at page 393 of the FCR and [106] at page 67 of the ALR, 21 in the top right‑hand corner of the copy your Honours have. Your Honour the Chief Justice was dealing with the suggested limitation on the application of a proposition but fraud vitiates all transactions where the decision‑maker was a party to the fraud and particularly the last sentence in that paragraph makes it clear that it is not the source of the fraud which is important, it is really the effect of the fraud on the decision which is in issue.

Their Honours below in the Full Court of the Federal Court dealt with the question of whether or not there was a jurisdictional error by reason of the fraud by reference to whether or not there was some exception to the rule in SZFDE.  Of course, SZFDE does not establish a rule but rather gives effect to the legislation.  In my submission, SZFDE does not stand for a simple proposition that there must be third party fraud in order for a decision to be vitiated.  SZFDE, to the extent that it stands a proposition concerning fraud, stands for the proposition that where a fraud has an effect on the outcome or effect on a Tribunal’s decision, then regardless of whether the Tribunal is on notice of that fraud or that effect, the substance of the effect on the Tribunal’s decision is the key to determining whether or not jurisdictional error is made out.

In those circumstances, in my submission, the Full Court of the Federal Court erred by viewing SZFDE as creating a specified rule of third party fraud.  In this case, your Honours, this is a suitable vehicle for determining that point because here the issue of the applicant’s or the appellant’s involvement in whatever form with the fraud on the Full Court of the Federal Court’s approach would completely negate any question of jurisdictional error.  That obviously has wide‑ranging consequences for people who are subject to fraud perpetrated on them by a migration agent whom they are entitled to trust by reason of the various codes of conduct and the expectations that go along with dealing with a migration agent. 

In the present case, in my submission, if there is any question as to the applicant’s involvement in the fraud, it needs to be dealt with by way of discretion.  I have put in my written submissions as to why there are errors in the approach to discretion taken by the Full Court of the Federal Court in this case.  It is not an alternative basis which is without problems of their own which would warrant the consideration by this Court of the question of discretion.  Obviously, the question of discretion operates within the scope of Aala and the animating principle in Enfield, so that if a jurisdictional error is found that will obviously have an impact on the approach to the discretion.  And it could not be said, in my submission, that the approach by the Full Court of the Federal Court and, indeed, the federal magistrate to discretion was unaffected by its findings on the question of jurisdictional error.

Further, if in circumstances where discretion is involved, then, in my submission, there are a range of other circumstances in situations such as these which ought to be taken into account, particularly the relative strengths of the parties, the dependence and reliance upon the migration agent of the applicant, the requirements of the code of conduct for migration

agents which is specified in the regulations which have been provided to your Honours with the authorities and the requirement that, in the end, what is a decision which is attended by fraud should not be allowed to stand.

There is no benefit to the applicant of obtaining writs for judicial review in the sense that he still has to face a Tribunal and persuade it of his true claims.  He is no better position than he would be in if he had have gone along to the Tribunal hearing, as he would have had he not be induced by the fraud, and explained what had happened when this migration agent entered his life and told him the wrong things.

FRENCH CJ:   This does not go to the special leave question, does it?

MR PRINCE:   It does in a sense that if discretion is put against the appellant as a basis on which to reject special leave because the question of discretion would go against him anyway, in my submission, that would not go against the grant of special leave in this case for the reasons that I have already given, because the decision if the Full Court Federal Court and of the federal magistrate below on the question of discretion is itself attended with the types of errors which would attract the grant of special leave in terms of the principles of a formulation of what ought to be taken into account in reaching those discretionary considerations.  May it please the Court.

FRENCH CJ:   Yes, thank you.  We will not need to trouble you, Mr Johnson.

In this case, the applicant for special leave made application under a false name to the Refugee Review Tribunal and a false Indonesian identity.  He was advised by his migration agent that he could be arrested and deported at the end of the hearing if he were to attend and the falsehood were to emerge.  He secured a medical certificate and did not attend at the hearing and his application for review was rejected.  He sought judicial review in the Federal Magistrates Court.  That application was dismissed.  The Full Court of the Federal Court dismissed an appeal from that decision.

The Full Court distinguished the case from that of this Court in SZFDE on the basis, inter alia, that the applicant was complicit in the fraud which was relied upon to try to set aside the Tribunal decision.  In our opinion, the Full Court was correct, and special leave should be refused.

MR JOHNSON:   Your Honours, an order for costs is sought.

FRENCH CJ:   Yes, special leave refused with costs.  Thank you.

AT 3.38 PM THE MATTER WAS CONCLUDED