Wati, Grace Pushpa v Minister for Immigration & Ethnic Affairs

[1997] FCA 207

CATCHWORDS

PRACTICE & PROCEDURE - application for leave to appeal out of time - error by applicant's solicitor - whether appeal has no prospect of success.

IMMIGRATION - decision at trial not to set aside decision of the Immigration Review Tribunal on ground of fraud - whether trial judge erred in not accepting submission that decision ought to be set aside if a real possibility of fraud.

Migration Act 1958 (Cth) - s.476

Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37
R v Environment Secretary; ex parte Powis [1981] 1 WLR 584
Monroe Schneider Associates Inc v No 1 Raberem Pty Ltd (1992) 37 FCR 234
The Queen v Toohey; ex parte Northern Land Council (1981) 151 CLR 170
R v Environment Secretary; ex parte Powis [1981] 1 WLR 584.
R v West Sussex Quarter Sessions; ex parte Johnson Trust [1974] 1 QB 24
Sydney Municipal Council v Campbell [1925] AC 338

GRACE PUSHPA WATI v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & ANOR
No NG 1043 of 1996

Davies J
Sydney
4 April 1997

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )                 No. NG 1043 of 1996
  )
GENERAL DIVISION  )                 

BETWEEN:  GRACE WATI

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

AND:GABRIEL FLEMING 

CONSTITUTING THE IMMIGRATION REVIEW TRIBUNAL

Second Respondent

Coram :  Davies J
Place :  Sydney
Dated :  4 April 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file and serve a notice of appeal from the judgment of Lindgren J given on 29 November 1996 at Sydney be refused.

2.The applicant pay the respondents' costs.

NOTE :Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
NEW SOUTH WALES DISTRICT REGISTRY     )
  )          No NG 1043 of 1996
GENERAL DIVISION  )

BETWEEN:               GRACE PUSHPA WATI

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

AND:GABRIEL FLEMING

CONSTITUTING THE IMMIGRATION REVIEW TRIBUNAL

Second Respondent

Coram :          Davies J
Place :             Sydney
Dated :  4 April 1997

REASONS FOR JUDGMENT

This is an application for leave to appeal out of time from a judgment of Lindgren J given on 29 November 1996. 

The applicant's solicitor has explained that the notice of appeal was filed one day out of time through an error on his part.  Accordingly, there is sound reason for extending time.  There is no prejudice to the respondent.  The grant of leave has been opposed, however, on the ground that the appeal has no prospect of success.

- 2 -

Lindgren J refused an application to set aside a decision of the Immigration Review Tribunal on the ground of fraud, a ground specified in s 476(1)(f) of the Migration Act 1958 (Cth) which provides:-

"476. (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(f)that the decision was induced or affected by fraud or by actual bias;"

The allegation of fraud was not directed to the Immigration Review Tribunal but to a witness, whose evidence was alleged to be perjured.  The possibility of a challenge based on non-party fraud has been accepted in cases in the United Kingdom such as R v West Sussex Quarter Sessions; ex parte Johnson Trust [1974] 1 QB 24 and R v Environment Secretary; ex parte Powis [1981] 1 WLR 584.

However, the principal argument put by counsel for the applicant before me was that his Honour erred in not accepting the submission put to him that the decision could be set aside if there were "a real possibility" or "a real suspicion" or "a suggestion" that the decision of the Immigration Review Tribunal had been induced or affected by the fraud of a witness. 

I agree with Lindgren J that this proposition is untenable. 

- 3 -

It has always been the law that the facts relied upon as constituting fraud must be established by proof.  See, eg., Mitford's Chancery Pleadings, 5th Ed. p.113.  As Spender, Gummow & Lee JJ said in Monroe Schneider Associates Inc v No 1 Raberem Pty Ltd (1992) 37 FCR 234 at 241-2:-

"The subornation of witnesses is a well-established species of fraud in this field.  However, the significance to be attached to allegations of perjury has, over a long period, been called into question: see Gordon QC at 533 et seq, Note (1908-9) 22 Harv L Rev 600, Note (1935) 49 Harv L Rev 327.  In the Hazel-Atlas case (supra), Black J was careful to emphasise that that was not simply a case of a judgment obtained with the aid of a witness who on the basis of after-discovered evidence was believed possibly to have been guilty of perjury; rather, there was a deliberately planned and carefully executed scheme to defraud not only the Patent Office in obtaining a patent but also the Circuit Court of Appeals in an infringement suit brought upon the patent." (emphasis added)

Thus, in Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 and The Queen v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, it was held that the facts had to be investigated. In Sydney Municipal Council v Campbell [1925] AC 338, where an administrative decision was held to be invalid for wrongful purpose, the Chief Judge in Equity had made the requisite findings of fact.

Lindgren J held that fraud on the part of the witnesses had not been established.  His Honour further held that the Immigration Review Tribunal expressed caution in relation to the evidence of the witness alleged to have perpetrated a fraud on the Tribunal and accepted his evidence only to a limited extent and that its critical findings did not depend on the evidence of that witness.

- 4 -

In the circumstances, the appeal has, in my opinion, no prospects of success.

I shall, therefore, dismiss the motion with costs.

I certify that this and the preceding
3 pages are a true copy of the
reasons for judgment herein of
the Honourable Justice Davies.

Associate :      

Date :   4 April 1997  

Counsel for the applicant :                 R.J. Toner  
Solicitors for the applicant :               Crichton-Browne Crossley

Counsel for the respondent :              B.J. Preston

Solicitor for the respondent :             Australian Government Solicitor

Date of hearing :  21 February 1997

Date of judgment  4 April 1997