Case: SZFDE v Minister for Immigration &amp; Citizenship [2007] HCA 35 ; (2007) 232 CLR 189
Outcome: applied
Honour observed that the authorities subsequent to SZFDE v Minister for Immigration &amp; Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 , for example, Minister for Immigration &amp; Citizenship v SZLIX (2008) 245 ALR 501, SZLHP v Minister for Immigration &amp; Citizenship (2008) 172 FCR 170 and SZHVM v Minister for Immigration &amp; Citizenship (2008) 170 FCR 211, emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures. Another difficulty was his Honour's acceptance of the submission of the Minister's counsel, that if he accepted all the evidence led by the appellant, it would support, at most, a conclusion only that there was a failure by Tan &amp; Tan speedily to convey the delegate's decision to the applicant. At most, in his Honour's opinion, the appellant's evidence might support a finding of negligence in communicating with a client of the firm on a significant matter. However, on the above authorities this was not enough (reference was made to SZFDE at [53]). The appellant filed a notice of appeal on 13 October 2008 raising three grounds but in that notice foreshadowed the filing of an amended notice of appeal when the written reasons for judgment below became available. An amended notice of appeal raising six grounds was filed under cover of a supplementary notice on 23 October 2008. The appellant relies on the six grounds in the amended notice of appeal and the respondent took no objection to that course on the understanding that it was not to be taken as, or seen to be, consent to the appellant reformulating any allegation of fraud. The appellant also read an affidavit sworn 8 December 2008, without objection on the part of the respondent, which had been filed on 11 December 2008 annexing the transcript of the proceedings in the Federal Magistrates Court. Ground 1 The learned Federal Magistrate erred by misconstruing s 494D of the Act. This ground seeks to challenge his Honour's findings (under ground 1 below) that s 494D does not require that a signature from the appellant be part of the notice to the Minister envisaged by that section. His Honour's findings in this regard are set out at [40] and [41] of his reasons and summarised in [17] and [18] above. Plainly, SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being 'disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review': SZFDE at [51]; such that its decision was, in law, no decision at all: ( SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour's finding, that there was some dishonesty by anyone at Tan &amp; Tan) would not have made any difference. There would be no link between the suggested 'fraud' and the Tribunal's decision-making process: SZFNX v Minister for Immigration &amp; Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement. That finding was open to his Honour and no appellable error is shown. It attracts what was said in SZFDE at [53] as to there being no jurisdictional error in mere bad or negligent advice or other mishap. In any event, the appellant has not shown the combination of elements required to make out jurisdictional error of the kind discussed in SZFDE and the other cases to which reference was made. No appellable error by his Honour or jurisdictional error by the Tribunal is established. The appeal must be dismissed, with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 6 March 2009 Solicitor for the Appellant: Silva Solicitors Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 12 February 2009 Date of Judgment: 6 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/197.html