SZFDE v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Gummow,Kirby,Hayne,Callinan,Heydon,Crennan JJ.
• Judgment Date: 02 August 2007
• Neutral Citation: 2007-0802 HCA B,[2007] HCA 35
• Docket Number: S118/2007
• Date: 02 August 2007

Szfde & Ors

Appellants

and

Minister for Immigration and Citizenship & Anor

Respondents

[2007] HCA 35

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

S118/2007

HIGH COURT OF AUSTRALIA

SZFDE v Minister for Immigration and Citizenship

Immigration — Refugees — The Refugee Review Tribunal (‘the Tribunal’) affirmed a decision refusing the appellants' application for protection visas — The appellants did not attend the Tribunal hearing as a result of fraudulent advice given by a purported registered migration agent — Whether there was fraud ‘by’ or ‘on’ the Tribunal.

Immigration — Refugee Review Tribunal — Inquisitorial process — Distinction between Tribunal process and inter partes litigation — Whether fraud practised by an agent upon the applicants for a protection visa subverted the operation of Div 4 of Pt 7 of the Migration Act 1958 (Cth) — Whether this fraud led to the jurisdiction of the Tribunal remaining constructively unexercised.

Administrative law — Constitutional writs — Mandamus and certiorari — Availability of constitutional writs in cases of fraud.

Words and Phrases — ‘bad faith’, ‘does not appear’, ‘fraud’, ‘on the decision maker’, ‘third party fraud’.

Migration Act 1958 (Cth), Pt 7 Div 4, ss 281, 422B, 425, 426A.

Representation

G C Lindsay SC with L J Karp for the appellants (instructed by Legal Aid Commission of New South Wales)

R T Beech-Jones SC with G T Johnson for the first respondent (instructed by DLA Phillips Fox)

Submitting appearance for the second respondent

ORDER

• 1. Appeal allowed with costs.

• 2. Set aside the orders of the Full Court of the Federal Court of Australia entered on 24 October 2006 and, in their place, order that the appeal to that Court be dismissed with costs.

1 Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. This is an appeal from a decision of the Full Court of the Federal Court of Australia (Allsop and Graham JJ, French J dissenting) 1. The Full Court on 3 October 2006 allowed an appeal by the Minister (the first respondent in this Court) against the grant by the Federal Magistrates Court (Scarlett FM) 2 on 20 December 2005 of orders in the nature of certiorari and mandamus in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) (the second respondent in this Court). The Tribunal had affirmed the decision of a delegate of the Minister not to grant protection visas to the appellants.

The Issues

2 The appellants in order are a wife and husband and their children (born in 1988 and 1989); they are citizens of Lebanon who arrived in Australia on 27 February 2002. The appellant wife claimed a well-founded fear of persecution by reason of her published views questioning the position of women in the Islamic tradition. Her husband and children relied upon their family membership for their protection visa applications. In its reasons the Tribunal noted that the first appellant, although invited to do so, had not appeared before it and that there were relevant matters the Tribunal would have wished to explore with her.

3 The ground upon which the appellants sought relief in the Federal Magistrates Court was that the decision of the Tribunal was affected by the fraud of Mr Fahmi Hussain. He was said to have represented himself to the appellants to be a solicitor and a migration agent licensed in accordance with Pt 3 (ss 275–332H) of the Migration Act 1958 (Cth) (‘the Act’). The first appellant paid Mr Hussain a total of $8,400 (and lent him $5,000) for him to act for the family with respect to the Tribunal proceeding. She followed his advice, in particular, not to attend the Tribunal hearing for which s 425 of the Act provides.

4 The application to the Tribunal for review of the decision of the delegate of the Minister was made on 29 September 2002. By resolution of the Council of the Law Society of New South Wales on 5 December 2001 Mr Hussain's practising certificate had been cancelled. A letter of notification of the

cancellation of his registration under Pt 3 of the Act had been given by the Migration Agents Registration Authority on 18 March 2002. This notification had been accompanied by detailed and adverse findings by the Authority on material questions of fact. At the foot of the letter there had appeared:

‘Your attention is directed to Division 2 of Part 3 of the Act which provides for penalties of up to 10 years imprisonment for the giving of immigration assistance or making immigration representations while not a registered agent.’

5 The appellants submit that this Court should uphold the reasoning in the dissenting judgment of French J in the Full Court. His Honour was of the view that the Tribunal had fallen into jurisdictional error because, whilst it had made its decision blamelessly, it had acted pursuant to a process compromised by ‘third party fraud’ 3.

6 The position taken by the Minister in submissions to this Court is that the principle articulated by French J is too wide; there must be fraud ‘by’ or ‘on’ the decision-maker and here any fraud was perpetrated on the appellants but neither ‘by’ nor ‘on’ the Tribunal. In resolving this appeal it is sufficient to accept the Minister's proposition without deciding whether it would be sufficient for the appellants to establish, for example, fraud ‘on’ themselves as parties before the Tribunal.

7 For the reasons that follow there was in this case fraud in the necessary sense which was perpetrated ‘on’ the Tribunal, as well as upon the appellants. The result was that, in law, the jurisdiction of the Tribunal remained unexercised and mandamus and certiorari were appropriately ordered by the Federal Magistrates Court.

‘Fraud’ in the law

8 It is convenient first to consider the place of ‘fraud’ in the framework of general legal principle. In his celebrated speech in Reddaway v Banham4, Lord

Macnaghten spoke of the various guises in which fraud appears in the conduct of human affairs, saying ‘fraud is infinite in variety’. A corollary, expressed by Kerr in his ‘Treatise on the Law of Fraud and Mistake’ 5, is that:

‘The fertility of man's invention in devising new schemes of fraud is so great, that the courts have always declined to define it … reserving to themselves the liberty to deal with it under whatever form it may present itself.’

9 Nevertheless, much judicial effort has been expended in exploring different shades of meaning, and sometimes deeper distinctions, in the constituents of ‘fraud’ in various areas of the law. Recent decisions in this Court respecting ‘fraud’ concern criminal law 6, the tort of deceit 7, registered designs law 8, the law of agency 9, statutes of limitation 10 and dealings in Torrens title land 11.

10 Professor Hanbury 12 described the common law and equity as having ‘quarrelled over the possession of the word “fraud” like two dogs over a bone, off which neither side was sufficiently strong to tear all the meat’, and said that the word fraud applied ‘indifferently to all failures in relations wherein equity set a

certain standard of conduct’. Hence the attachment of the term ‘fraud’ to the exercise of powers of appointment, and of other powers, such as those of company directors, in a fashion of which equity disapproved 13.

‘Fraud’ and Public Law

11 In the fields of law just discussed, the common law, equity and statute are concerned principally with the creation and protection of personal and proprietary rights in inter partes litigation, rather than with what might today be identified as public law. This appeal concerns public law, in particular the due administration of the provisions of the Act respecting protection visas and procedures for review by the Tribunal of decisions on visa applications. That concern with due administration of the laws of the Commonwealth has the important constitutional underpinning described particularly in Plaintiff S157/2002 v Commonwealth14 and Bodruddaza v Minister for Immigration and Multicultural Affairs15 and identified with Ch III of the Constitution.

12 The attachment by courts of equity of the term ‘fraud’, with related notions of ‘bad faith’ and ‘abuse of power’, when stigmatising exercises of powers of appointment and fiduciary powers as falling short of the standards equity required of the repositories of those powers, has proved influential in the development of public law. What came to be known as the principle of ‘ Wednesbury unreasonableness’ was developed in the case law by analogy to the principles controlling the exercise of powers of discretions vested in trustees and others 16.

13 However, several points should be made here. First, given the equitable nature of their origins described above, principles of public law concerning impropriety in the exercise of statutory powers have not had the focus upon what might be called the ‘red blooded’ species of fraud which engages the common law. Secondly, with respect to references in the public law decisions to good and

bad faith and the like, the following observation in a leading English text 17 is in point:

‘These add very little to the true sense, and are hardly ever used to mean more than that some action is found to have a lawful or unlawful purpose. It is extremely rare for public authorities to be found guilty of intentional dishonesty: normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet the courts constantly accuse them of bad faith merely because they have acted unreasonably or on improper grounds. Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context “in good faith” means merely “for legitimate reasons”. Contrary to the natural sense of the words, they impute no moral obliquity.’

Aickin J made observations to similar effect in R v Toohey; Ex parte Northern Land Council18.

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