Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142
Outcome: followed
Even if the appellant established fraud, in the sense of reckless conduct or dishonesty by his migration agent which resulted in a non-attendance at a hearing of the Tribunal, the decision of the Tribunal is not vitiated: see Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 in which Allsop J said at [136]: 'The parties did not attend a hearing to which they were invited, on the facts, because of the dishonest advice of their own agent. The decision itself was made, without the benefit of the participation of the respondents, but unaffected, and certainly not induced, by fraud.' His Honour also said at [139]: 'There has been no fraud of the Tribunal. There has been no fraud of the executive department. There was an invitation to attend a hearing. That invitation was declined. That decision to decline the invitation was influenced by the dishonesty and fraudulent purpose of the agent of the applicants. I do not see the basis for a conclusion that there was any denial of procedural fairness or that those circumstance [sic] denied the Tribunal the authority to decide the review given the terms of ss 425, 426A and s 422B.' 25 In SZFDE the majority found that the legislative scheme contained in Div 4 of the Act required an invitation to be given to the appellant. Such invitation had been provided, and the decision not to attend resulted from the dishonest conduct of the agent. However, such conduct did not corrupt the decision or the statutory process. The majority considered that authorities which have upheld challenges to orders made against a party by a court in their absence through no fault of their own, such as Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 and Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571, are distinguishable because of the absence of the statutory scheme provided by the Act. 28 In SZFDE French J dissented, finding that the fraud did affect the decision because it resulted in the non-appearance of the appellant before the Tribunal. As a consequence the Tribunal was deprived of the opportunity of exploring certain issues with the appellant. French J concluded that the Tribunal's decision ' was not one made under the Act, and therefore not a privative clause decision protected by s 474 '. French J's decision recognises the possibility that where, through no fault of their own, an appellant is deprived of a hearing, circumstances may exist to vitiate the decision despite compliance with the requirements of the statutory scheme. This possibility was also recognised by the Full Court in SZFML . It is apparent that the facts in each case will be critical in determining whether consent by the appellant to the agent in fact existed. 29 This Court considers that it is bound to follow the majority in SZFDE , and to conclude that fraud, even if proved by the appellant, does not vitiate the decision of the Tribunal. 30 In view of the above finding, it is not necessary to consider this ground of appeal. However, the Court will nevertheless state its observations. 31 The appellant also challenges the finding of Nicholls FM that the MARA Notice would not establish fraudulent conduct by the agent and that the evidence before the Tribunal was not sufficient to establish fraud. The appellant sought to rely upon the MARA Notice as demonstrating a ' propensity ' for the migration agent to have misled the appellant by conduct amounting to fraud, or conduct akin to fraud. 33 In written submissions provided after the hearing, the appellant relied upon the dissenting judgment of French J in SZFDE wherein his Honour stated that ' the common law proposition that fraud may vitiate an administrative decision ' extends to cover ' reckless conduct ', and sought to establish that the evidence of the migration agent's wrongful conduct in the MARA Notice is relevant to the question of whether the agent's conduct was reckless. The appellant submitted that the MARA Notice would show a 'system' or 'pattern' and a repetitiveness of conduct which would strengthen the inference to be drawn from such evidence within the meaning of s 97(1) of the Evidence Act . 34 Nicholls FM held at [23]: 'Even if the conduct of the agent could be said to be fraudulent (or akin to fraud) none of this material or what the witness was expected to say, went to show irregular conduct on the part of the Tribunal. Nor on the basis of what the Full Court said in NASB where fraud is given as one specific example which could be relevant, does this material go to show fraud or even any other irregular conduct on the part of a Minister or those associated with the Minister. Nor does this material go to show fraud, perjury or other misconduct of a witness before the Tribunal.' 36 I am unable to find that there is any jurisdictional error in His Honour's conclusions. Section 55 of the Evidence Act establishes the parameters of the evidence which is admissible. His Honour was also entitled, pursuant to s 97(1)(b) of the Evidence Act to conclude that the evidence had no significant probative value. The evidence of the MARA Notice and of the proposed witness would do no more than establish a suggestion of misleading conduct between the migration agent and other parties. It does not establish any link between the conduct of the migration agent and the appellant in these proceedings. The Court is unable to find any jurisdictional error on the part of Nicholls FM, and the subsequent Full Court decision in SZFDE now conclusively determines that fraud by an agent does not result in jurisdictional error by a Tribunal. It follows that the appeal must be dismissed. 37 An order that the appellant pay the costs of the first respondent in the sum of $2700 has been sought. The Court finds such amount to be reasonable and will make the order sought. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 17 November 2006 Counsel for the Appellant: B Zipser Counsel for the Respondent: M A Izzo Solicitor for the Respondent: Sparke Helmore Date of Hearing: 6 November 2006 Date of Judgment: 17 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1477.html