Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142
Outcome: referred to
Even if I am wrong and the Magistrate erred in not making a finding of fraud, such a finding would not lead to the setting aside of the Tribunal's decision. The effect of fraud by a migration agent on a decision of the Tribunal was considered by the Full Court of this Court in the recent decision of Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 (' SZFDE '). Applicants for a protection visa engaged a man who said he was a solicitor with a lot of experience in migration matters. Unbeknown to the applicants he had been struck off as a solicitor and deregistered as a migration agent. He told the applicants that they should not accept an invitation to appear before the Tribunal at an oral hearing because their application would be refused. He told them that he was going to write to the Minister on their behalf and he was concerned that if they appeared before the Tribunal they might say something inconsistent with what he said in the letter. He told them not to worry, that he was doing what was best for them. The Magistrate found that the agent had acted dishonestly and fraudulently. In other word s, his advice was not only bad, but also fraudulent. A majority of the Court (Allsop and Graham JJ) said that the fraud in that case did not provide a basis for setting aside the decision of the Tribunal. The Tribunal was not aware of the fraud and had complied with the Act in terms of extending an invitation to the applicants (ss 425 , 425A ). 30 Allsop J said that the decision of the Tribunal was not induced or affected by fraud (at [136]). Allsop J made the point that in the circumstances of the case before him the fraud was linked to the complaint that there had been a failure of procedural fairness. The complaint of a lack of procedural fairness could not succeed in light of ss 422B , 425 and 426A of the Act. Allsop J also said that it was not a case where it could be said that the statutory process was corrupted by fraud (at [139]). Graham J also dismissed the challenge based on fraud saying that even if there was fraud it was of no relevance (at [191] and [237]). 31 French J dissented. His Honour held that the fraud of the agent gave rise to a jurisdictional error on the part of the Tribunal, saying that the Tribunal made its decision (at [131]): '... blamelessly but pursuant to a process which, unknown to it, was compromised by third party fraud.' 32 On the basis of the majority decision in SZFDE the appellant's submission that the fraud of Mr Han (assuming, contrary to my earlier conclusion, that he was fraudulent) vitiates the decision must be rejected. 33 The appellant's alternative submission was that the agent's conduct led to a breach of the rules of procedural fairness and that that gave rise to a jurisdictional error. This submission raises two questions. First, absent the particular statutory context, is there what might perhaps be called a general rule that there is a breach of the rules of procedural fairness if a party fails to attend a hearing due to the erroneous advice of his agent? Secondly, if there is such a rule, does the particular statutory context negate the rule or the granting of relief. I realise that dividing the issue into two questions is somewhat artificial, but I think it does assist in the overall analysis. 34 There are many cases in which the courts have considered whether, in the absence of fault on the part of the decision-maker, there can be a breach of the rules of procedural fairness. A number are discussed in the reasons for judgment of French J in SZFD E (see also Aronson, Dyer and Groves, Judicial Review of Administration Action (3 rd ed, 2004) pages 460-463). They can perhaps be placed in various categories depending on one or more of: the powers the Court was exercising; the status of the person at fault (ie, party's agent, other party to the proceeding or a third party); the nature of the conduct of the party at fault (ie, fraudulent or negligent); and the effect of the procedural departure. It seems fairly clear on the authorities that there can be a breach of the rules of procedural fairness in the absence of fault on the part of the decision-maker: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 per Gleeson CJ at 448 [22]. Equally, it seems clear on the authorities that there is no breach of the rules of procedural fairness if the fault leading to the procedural departure was that of the agent of the applicant for relief. That was the view of the House of Lords in Al-Mehdawi (supra) and of French J (at [101]-[103]) and Allsop J (at [138]) in SZFDE . The appellant's alternative submission fails on this ground. 35 The submission would fail in any event because even if there was such a general rule it could not operate in the context of the provisions of the Act. Section 422B provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 425 requires that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That invitation was given in this case. Section 426A provides that where an applicant fails to appear in response to an invitation, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. That is how the Tribunal decided to proceed in this case and it was entitled to do so. The conclusion that the statutory provisions allow no room for a claim that there was a breach of the rules of procedural fairness based on the erroneous advice of an applicant's agent was a conclusion reached by a majority of the Court in SZFDE (per Allsop J at [138] per Graham J at [237]-[239]). 36 The decision of the Tribunal did not involve jurisdictional error and the Magistrate's decision that the application was not competent was correct. 37 The appeal must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 3 November 2006 Counsel for the Appellant: B Zipser Counsel for the Respondent: G Kennett Solicitor for the Respondent: Phillips Fox Date of Hearing: 9 August 2006 Date of Judgment: 3 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1420.html