Case: Minister of Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142
Outcome: cited
There are a number of authorities which have dealt with the question of whether a finding of procedural fairness, or failure to afford procedural fairness, is open in circumstances where there is no demonstrated engagement by the Tribunal in conduct relevant to that question. The Full Court of the Federal Court of Australia has considered this matter recently in Minister of Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. That was a case in which a Lebanese family had the misfortune to be introduced, by a relative of the family, to a man who was thought to be a solicitor with a great deal of experience in migration matters. The family engaged him to represent them in their application for review by the Tribunal. However, unknown to the family, the particular agent had been struck off as a solicitor in December 2001 and deregistered as a migration agent in March 2002. The family paid the agent a considerable sum of money, namely, $8,400, and accordingly, was influenced by quite calculated fraud. The family had been dissuaded from appearing at a hearing before the Tribunal by the fraud of the agent. 40 His Honour, Allsop J, at paragraph 139 of the reasons, reviews the principles governing the circumstances in which procedural fairness might be found to have failed by reason of the intervention of a third party. At paragraph 139, his Honour said this: 'Whilst the consequences of fraud practised upon the decision-making process of an administrative tribunal might, in some cases, lead to the conclusion that a decision had been made without authority or exhibiting jurisdictional error, that conclusion will generally be reached by reference to notions of procedural fairness. Whilst the taxonomy or categorisation of legal principle should not impede its recognition or operation, some characterisation is called for here by the terms of s 422B. ' 41 I pause to add that in this particular case, s 422B was not part of the legislative scheme but nevertheless, the statement of principle in relation to the circumstances in which procedural fairness might be found to have failed and thus jurisdictional error arises, remains persuasive. His Honour, continued at [139]: 'It is difficult to see here how, absent regard to the rules of procedural fairness or "the requirements of the natural justice hearing rule", one can identify a principle of law that permits the conclusion that there has been jurisdictional error. 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 circumstances denied the Tribunal the authority to decide the review given the terms of ss 425 , 426A and 422B . I do not think that it is an accurate conclusion to say that the legislative scheme was corrupted by fraud or that a hearing was denied by fraud.' See also Minister of Immigration and Multicultural Affairs v SZFDE per Graham J [212].