Case: Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
Outcome: referred to
The Magistrate found that Mr Han advised the appellant not to attend the Tribunal and so he did not go. The Magistrate found that the appellant would have gone to the hearing if he had been told that his attendance was necessary or useful. The Magistrate found that the Tribunal was in no way aware that the appellant had been misled by Mr Han and he said that there was no evidence that 'the Tribunal was aware of any suspicious circumstances about the migration agent'. The Magistrate said that the appellant had followed the advice of his migration agent and could not now complain that the Tribunal fell into error as a result. He referred to the decision of the Full Court of this Court in S58 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. The Magistrate said that there was no evidence of fraud in the case and he said that in the absence of 'some exceptional circumstance' like fraud, there is no jurisdictional error where there is no defect in the Tribunal's decision-making process. The Magistrate said that the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 (' Al-Mehdawi ') was persuasive and should be followed. 27 I start with the submission which takes as its basis the allegation that the agent's conduct was fraudulent. In examining the authorities it seems to me that it is not always clear what is encompassed by the word 'fraud' in this context. It would include the making a false statement knowing it was false or engaging in conduct which deceives another, knowing that it would, or was likely to, have that effect. It could include other circumstances and some of the authorities suggest that circumstances may be sufficiently analogous to fraud to lead to the granting of relief. I refer by way of example to Lord Bridges' explanation in Al-Mehdawi (at 895-896) of the basis of the Court of Appeal's decision in R v Leyland Justices; Ex parte Hawthorn [1979] QB 283. 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.