Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64
Outcome: distinguished
The Federal Magistrate found that the appellant's claims had been rejected on the basis of credibility. In respect to the alleged wrongdoing of the appellant's migration agent, his Honour found that the alleged conduct did not have "the character of fraud as described in SZFDE " and noted that the Tribunal had formed the view that, in any event, there was no adequate explanation why the appellant did not raise these issues during his second hearing. His Honour concluded that the Tribunal had adequately considered the possible issue concerning the appellant's migration agent, stating at [17]: ... While accepting the subsequent cancellation of his registration as a migration agent, the Tribunal noted that even a flawed agent such as Mr Mollah would have realised the significance of the applicant's claims. The Tribunal formed the view that the applicant did not mention them to Mr Mollah. 28 With respect to the second ground of review, his Honour held that the Tribunal was not under a duty to investigate the appellant's claim under s 427(1)(d) of the Act, nor was it the role of the Court to engage in merits review, which is the way in which his Honour characterised this ground. 29 In relation to the two documents raised in ground 3, his Honour found that there was nothing to suggest bad faith on the part of the Tribunal. The Tribunal was not required to contact the alleged writers or otherwise prove the authenticity of the documents and it was for the appellant to make out his own case. The hearing invitation issued on 9 May 2006 clearly stated that the appellant could nominate witnesses. The appellant elected not to pursue this course but produced letters instead. His Honour was not satisfied that this ground of review could be sustained. The application for review was dismissed. 30 The appellant's notice of appeal raises three grounds of appeal, which are essentially the same three grounds as raised before the Federal Magistrate at first instance: a. The Tribunal failed to constructively exercise its jurisdiction under the Act by not considering the disadvantage suffered by the appellant because of his previous migration agent's wrong doings; and b. The Tribunal did not place any weight on the appellant's relationship with his partner in Australia, in particular, by failing to ascertain whether the partner was in Australia and by failing to contact the hospital where he was a patient; and c. The Tribunal did not put any effort into investigating the authenticity of two documents submitted by the appellant's friend and parents. 31 The appellant filed written submissions in this matter in which he addressed each of the three grounds of appeal. 32 In relation to the first ground of appeal, the appellant repeated his claims that his original migration advisor did not record his claims accurately; submitted a statement without his knowledge by forging his signature; and also advised him not to expand on his answers at the first Tribunal hearing. The appellant challenged the Tribunal's finding that it was "not satisfied that the Applicant ever mentioned them to his advisor." 33 The appellant contended that because he had language difficulties when he arrived, he depended on his migration agent but received ill-treatment. He claimed that he did not get the opportunity to tell the Tribunal about his persecution because of the mistake of his migration agent and that he was therefore denied natural justice. 36 In her written submission, Ms Allars, counsel for the first respondent contended that fraud on the Tribunal may be established where there are dishonest acts and omissions of a third party amounting to fraud and those acts and omissions result in the Tribunal failing to comply with the procedures in Div 4 of Pt 7: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64 at [14] . 37 However, the first respondent relied on the Tribunal's finding that the Tribunal was not satisfied as to the credibility of the appellant and did not accept his claims as truthful. The first respondent contended that even though the Tribunal accepted that the appellant's agent's registration had been cancelled, it did not accept that the agent would have omitted to refer to incidents included in the appellant's documents. Therefore, no fraud by the agent was established. In any event, it was not established that the Tribunal had failed to comply with the procedures in Div 4 of Pt 7. In this case, the appellant did appear at the hearing to give evidence and gave evidence. 40 The Tribunal was aware of the appellant's complaint about his migration agent before the hearing before the second Tribunal. In those circumstances, this Tribunal was in a quite different position to the Tribunal which was the unwitting victim of the agent's fraud in SZFDE [2007] HCA 35 ; 237 ALR 64. In that case, the agent had advised the appellant not to appear at the Tribunal hearing. The Tribunal was unaware of that advice or that the appellant was acting on that advice in not appearing. The Tribunal here considered the appellant's complaints about his migration agent but rejected them because it was not satisfied that the claims were truthfully made. Whilst the Tribunal accepted that the appellant's migration advisor's registration had been cancelled, it was not prepared to find on the appellant's evidence that the migration advisor had omitted incidents from the appellant's documents. Specifically, the Tribunal did not accept his claims that he had mentioned matters to the migration agent which were not included. Moreover, the Tribunal was not prepared to accept that the appellant was frightened of his migration advisor or that the appellant was told to keep his answers brief. In particular, the Tribunal concluded that the appellant's claims were fabricated for the purpose of strengthening his claim to a protection visa. 41 All these findings were open to the Tribunal and, once made, meant that the further findings which the Tribunal made in relation to the appellant's credibility based on the omission of evidence were also open. The findings also preclude, in my opinion, any suggestion that there has been any fraud upon the Tribunal of the kind which was considered in SZFDE [2007] HCA 35 ; 237 ALR 64. 42 Moreover, there is no evidence that the Tribunal, as a result of anything done by the appellant's migration agent, failed to comply with the procedures in Div 4 of Pt 7 of the Act. The first ground of appeal must fail.