'Fraud Unravels Everything'
‘Fraud unravels everything.’[1]
If a migration agent commits a fraud on behalf of a client, then it is possible to have that fraud overturned even if a court or tribunal has made an adverse decision against the client based on the fraud.
What amounts to fraud can be quite broad. How broad it can be is revealed in the recent High Court decision of SZFDE v MIAC [2007] HCA 35 (2.8.07). This was one of the very few decisions ever made by the High Court as 7 member bench unanimously and in a single joint judgment.[2]
The Court endorsed what Lord Denning said in Lazarus Estates v Beasle[3]:
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever: see as to deeds, Collins v Blanter; as to judgments, Duchess of Kingston’s case & as to contracts, Master v Miller.”
Here are the facts:
The evidence of the first appellant was that when, with her husband, she met Mr Hussain to discuss the Tribunal’s letter of invitation dated 27.6.03 which invited attendance at a hearing of the [RRT] Mr H used words to the effect:
“It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the [RRT]] you will say something in contradiction to what I will write. Don’t worry. I’m doing what is best for you.”
A letter to the then Minister, dated 15.9.03, was composed by Mr H in the name of the.. appellant. It was headed “Application for Consideration [under] S 417 of the Migration Act”. S 417 [Ministerial discretion]. This and further requests of this nature were rejected.
The Federal Magistrate held that Mr H had acted fraudulently in his dealings with the appellants for personal gain, that he had extracted money under false pretences and that the appellants had been dissuaded from attending the [RRT] hearing “by the fraudulent behaviour of Mr H”. The result was to have “deprived the invitation to the hearing [of] its quality of being a meaningful invitation under s 425”.
So the High Court determined as follows:
The importance of the requirement in s 425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 “is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with.”
An effective subversion of the operation of s 425 also subverts the observance by the [RRT] of its obligation to accord procedural fairness to applicants for review.
So if a migration agent does something on behalf of a client fraudulently then provided the client is not complicit in that fraud then whatever the migration did can be unravelled.
This High Court has spawned a number of complaints from clients about migration agents where the clients claim the agent told them not to go to a hearing. If for some reason a client does not go to a hearing then the agent needs to write to the client carefully recording the advice the agent has given so as to avoid the situation in SZFDE.
[1] Per Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713.
[2] The High Court normally sits a 5 member bench so the forming of a 7 member bench means the decision is important and the fact there was a single set of reasons unanimously makes this decision unassailable in the near future.
[3] [1956] 1 QB 702 at 712-713