MZXQH v Minister for Immigration and Citizenship [2008] FCA 1402

FEDERAL COURT OF AUSTRALIA

MZXQH v Minister for Immigration and Citizenship [2008] FCA 1402

MZXQH, MZXQI and MZXQJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 508 of 2008

RYAN J

15 SEPTEMBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 508 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXQH

First Appellant

MZXQI

Second Appellant

MZXQJ

Third Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE OF ORDER: 15 SEPTEMBER 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellants pay the first respondent's costs of the appeal, to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 508 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXQH

First Appellant

MZXQI

Second Appellant

MZXQJ

Third Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 15 SEPTEMBER 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from orders made by Burchardt FM on 16 June 2008, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). By a decision handed down on 5 April 2002, the Tribunal had affirmed a refusal on 12 July 2000 by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to grant a protection visa to the appellants. 2 The appellants are citizens of Sri Lanka. The first appellant arrived in Australia on 28 April 2000, while the second and third appellants (his spouse and child) arrived in Australia on 13 April 2000. 3 On 12 May 2000 the appellants lodged an application for a protection visa. The husband and wife both claimed to have a well-founded fear of persecution for a Convention reason, with their child relying on membership of their family unit. 4 The husband claimed to fear persecution by the Liberation Tigers of Tamil Eelam ("LTTE") because his father was a strong supporter of the United National Party ("UNP") and was perceived as being wealthy. The husband belonged to the Bohra sect of Islam. The husband claimed that his father had been harassed and threatened by the LTTE, and that he and his father had both been assaulted by the LTTE. It was further claimed that the husband's brother had been abducted for ransom by the LTTE and was still missing, and that the family store had been burnt down by the LTTE. 5 The wife claimed that the LTTE had threatened her, demanded money and demanded that a Tamil family be allowed to live in her house. She believed that this had occurred because the LTTE considered her to be of Tamil ethnicity as she had a Tamil mother. The wife claimed to be officially regarded as having the Sinhalese ethnicity of her father. 6 Both the husband and wife claimed that they had not complained to police in Sri Lanka because they feared reprisals. 7 On 12 July 2000 the application was refused, and on 8 August 2000 the appellants lodged an application for review of the decision by the Tribunal. 8 By a decision dated 19 March 2002 handed down on 5 April 2002, the Tribunal affirmed the Minister's decision. The Tribunal was not satisfied that the appellants' claims of persecution were credible. This was primarily due to their failure to seek protection from the State authorities in Sri Lanka, and the husband's numerous trips to Sri Lanka from Qatar where he had moved for work. The Tribunal was therefore not satisfied that the appellants faced a real chance of persecution if they were to return to Sri Lanka or that they had a well-founded fear of persecution. 9 On 9 May 2002 appellants sought a review of the Tribunal's decision by the High Court in its original jurisdiction. On 30 July 2002 the application was remitted to this Court. On 2 December 2002, Weinberg J remitted the matter to the Federal Magistrates Court. 10 On 12 August 2003 the application was dismissed by Phipps FM for failure to establish any jurisdictional error: M60 v Minister for Immigration (No 1) [2003] FMCA 428. The appellants failed to attend the hearing. However, the learned Federal Magistrate held, at [12], that; '… even if the applicants appeared and even if their written contentions of fact and law were aided by oral submissions presented by them or on their behalf, their application would not succeed.' 11 On 1 September 2003, the appellants filed an application in the Federal Magistrates Court of Australia seeking to set aside the orders of Phipps FM of 12 August 2003 ("the reinstatement application"). On 17 September 2003, the appellants were represented on the hearing of the reinstatement application but Phipps FM refused to set aside his earlier decision; M60 v Minister for Immigration an Multicultural and Indigenous Affairs (No 2) [2003] FMCA 429. In refusing the application, his Honour said that he was satisfied that the appellants had given an explanation for their failure to appear at the hearing on12 April 2003. However, he was not satisfied that the application raised an arguable case, despite the appellants raising a ground of review not previously raised. The appellants appealed to this Court from the refusal of the reinstatement application but, on 8 December 2004, Weinberg J ordered that the appeal be dismissed; Applicants M60/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1612. 12 On 8 September 2005, an application for special leave to appeal to the High Court was dismissed by Hayne and Callinan JJ; Applicants M60/2002 v Minister for Immigration and Multicultural Affairs [2005] HCA Trans 735. 13 On 8 May 2007 the appellants filed an application before Burchardt FM, which is the subject of the present appeal. The appellants contended that the Tribunal had misinterpreted the definition of persecution in s 91R(1)(a) of the Migration Act 1958 (Cth), and that the Tribunal had not taken proper account of the evidence. 14 On 15 August 2007 the Minister filed a notice of motion seeking summary dismissal pursuant to rule 13.10(c) of the Federal Magistrates Court Rules (Cth) 2001. That notice of motion contended that the appellant's latest application was an abuse of process. 15 Before Burchardt FM, the appellants submitted that their failure to appear before Phipps FM had been the result of fraud by their then migration agent so that the dismissal of the application involved a denial of natural justice that effectively rendered nugatory the first decision of Phipps FM and all subsequent decisions on their applications. Accordingly, it was said, the jurisdiction of the relevant courts had remained constructively unexercised. In making this submission the appellants relied on the dissenting judgment of French J in SZFDE v Minister for Immigration and Citizenship (2006) 154 FCR 365 ("SZFDE"), which was upheld by the High Court. 16 The appellants also sought adjournment of the proceedings while charges of professional misconduct against their former migration agent, who was also a solicitor, remained pending in the Victorian Civil and Administrative Tribunal ("VCAT"). 17 Burchardt FM observed in his reasons that in his second decision, Phipps FM had found that the migration agent had misled the appellants and was satisfied that the appellants had "given an explanation for their failure to appear." His Honour noted that the appellants had been represented by an experienced migration law practitioner who then presented the appellants' substantive claims, before Phipps FM "dismissed the application on the merits, or more accurately on the lack of merits." 18 Burchardt FM regarded SZFDE as authority only for the proposition that fraud vitiates only those decisions on which it is shown to have had an operative effect. His Honour was not satisfied that fraud had effectively operated on the second decision of Phipps FM, noting that; '… fraud meant that the Applicants did not attend the original hearing before this Court. When they did attend, his Honour was quite prepared to and did hear their case, so that the failure to attend the first time was of no moment.' 19 His Honour found that there was no suggestion of anything additional that was material to the appellants' original non-attendance that could possibly have emerged from the VCAT proceedings. He therefore concluded that there was no reason to adjourn the matter to await a decision from VCAT and dismissed the application. 20 On 3 July 2008, the appellants filed a notice of appeal in this Court, asserting that Burchardt FM had erred in refusing an adjournment, had mistaken the appellants' case in reliance on SZFDE,and had misapplied that authority. 21 On 15 July 2008 the respondents filed a Notice of Objection to Competency contending primarily that the orders of Burchardt FM were interlocutory orders from which leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). 22 At the hearing of the appeal before me it was submitted on behalf of the appellants that the test for whether a judgment is interlocutory or final is whether the judgment or order "finally dispose[s] of the rights of the parties"; see Hall v Nominal Defendant (1966) 117 CLR 423, per Taylor J, citing Bozson v Altrincham Urban District Council (1903) 1 KB 547, at pp 548–549. The appellants contended that the judgment of Burchardt FM "read as a whole effectively disposes off [sic] the rights of the parties", referring in particular to the finding by his Honour at [15], that; 'To adjourn this matter off to await the outcome of the VCAT proceedings would mean no more in the ultimate than we would at some future date be back here, faced with the same set of reasons for judgment made by Federal Magistrate Phipps on the materials before him.' 23 In relation to the issue of fraud by the migration agent, the appellants reiterated that there was no retainer between them and the practitioner who claimed to have represented them, and that they had been "kept in the dark during the entire conduct of the proceedings". By a decision dated 20 February 2006 the Migration Agents Registration Authority had disqualified the practitioner from being registered as a migration agent for a period of five years. The appellants are presently awaiting a decision by VCAT. 24 Invoking SZFDE, Mr Fernandez, who appeared as Counsel for the appellants, contended that by reason of the fraud of the migration agent, the decision of Phipps FM was not properly to be regarded as a decision because "the jurisdiction remains constructively unexercised". He further contended that Burchardt FM had erred in concluding that the decision of Phipps FM had not been affected by fraud because there was no evidence before the Federal Magistrates Court to support that conclusion. A related error was said to have been constituted by the refusal of an adjournment until after the VCAT hearing which would have assisted the appellants to advance their case based on the fraud of the former migration agent. Accordingly, it was submitted, the decision of Burchardt FM was infected by an appealable error of law. 25 Counsel for the Minister submitted that the decision by Burchardt FM to dismiss the application filed on 8 May 2008 had been made in response to the Minister's application for summary dismissal and that an order on such an application is interlocutory; see Rana v The University of South Australia (2004) 136 FCR 344, at [10]-[15]. Under s 24(1A) of the Federal Court Act, the appellants must apply for leave to appeal within 21 days against an interlocutory decision of the Federal Magistrates Court. As the appellants have not filed an application for leave to appeal within the required time, there was no valid invocation of the jurisdiction of this Court. 26 However, Counsel for the Minister acknowledged that this Court has a discretion to extend time for the appellants to apply for leave. In determining whether leave should be granted, it was submitted, the principles to be applied are; (a) whether the decision below is attended with sufficient doubt to warrant its being reconsidered by a Full Court; and (b) whether a substantial injustice would result if leave were refused supposing the decision to have been wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 27 It was contended on behalf of the Minister, that the application for leave to appeal should be refused on the basis that the decision of Burchardt FM is not attended by sufficient doubt to warrant its reconsideration by this Court, and, that there would be no prospect of success on the appeal if leave were granted. 28 Ms Loh of Counsel for the Minister first argued that it had been open to Burchardt FM to refuse to exercise his discretion to adjourn the hearing until after a decision in the VCAT proceeding, and that the appellants had not demonstrated how that discretion had miscarried. Ms Loh further submitted that Burchardt FM had concluded that the decision of Phipps FM was not affected by fraud because any fraud that had been perpetrated on the Court by the migration agent was effectively overtaken by the consideration given by Phipps FM to the appellant's grounds of the application at the hearing on 17 September 2003, and by the subsequent unsuccessful appeal and application for special leave from the dismissal of that appeal. 29 It was also submitted that there was no error in Burchardt FM's finding that the same claim had, in substance, been raised before Phipps FM on the reinstatement application, although the evidence had then been used in support of the allegation that the migration agent's activities were not fraudulent but misleading explained the appellants' non-appearance at the hearing on 12 August 2003. Even were the appellants able to establish an error of law, given the dismissal of their appeal by this Court and the refusal by the High Court of special leave, the appellants should be shut out from further judicial review of the Tribunal decision by application of the principles of res judicata and Anshun estoppel. Accordingly, the respondent submitted that the appeal should be dismissed with costs. 30 In oral submissions on the hearing of the appeal, Mr Fernandez sought first that the hearing of the appeal should be adjourned to await the outcome of the VCAT proceedings in which a hearing had now been set down for 6 October 2008. He also reiterated the contention that the fraud of the migration agent had manifestly deprived the appellants of an opportunity to appear and present their case before Phipps FM on 12 August 2003, so that every judicial order made thereafter was a nullity. That was said to flow from the effect of the fraud which meant that the jurisdiction to review the foundational decision of the Tribunal remained constructively unexercised. 31 In my view, that argument overstates the effect of the reasoning of French J in SZFDE as endorsed on appeal by the High Court. French J concluded, at [129]-[130] of his reasons; '129 There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. But where a person's participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case. In this case, on the findings made by the learned Magistrate which are not challenged as to the facts, SZFDE and her family were dissuaded from appearing before the Tribunal by the fraudulent advice of the migration agent. The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was 'not accepting any visa applications at all at the moment'. He expressed a false concern that if SZFDE and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice SZFDE's prospects of a successful outcome on the basis of a submission to the Minister.