Case: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1
Outcome: cited
In Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30] - [33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal's statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal. The Full Court made the following comments at [32]: We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent's acts or omissions vis-&agrave;-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly affects the Tribunal's discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a "fraud on the Tribunal". The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent's submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that affects the Tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant's absence. 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-&agrave;-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] HCA 34 ; (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. 64 In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 , the Full Court distinguished SZJBA on the basis that that decision was different because in that case 'there was a failure to inquire into readily available and centrally relevant information' (at [29]). Similarly, in my view the factual position confronting Allsop J in SZJBA was very different from that which arises in this appeal, and the failure to inquire cannot be seen on its face to subvert the observance of the Tribunal of its obligation to give procedural fairness.