Negligence is not fraud – Federal Court considers SZFDE


Rushed hearings have an inherent risk of error as the Full Federal Court decision of MIAC v SZLIX [2008] FCAFC 17 (5 March 2008) demonstrates. Here one day before a protection visa application was to be removed from Australia, he sought judicial review in the Federal Magistrates Court against a decision of the RRT to refuse a review of a protection visa refusal. The judicial review hearing was held 3 days later and judgement was given 4 days later in favour of the applicant.  But the Full Federal Court observed:

This haste in the disposition of the matter probably explains in some degree the quite unsatisfactory state of the evidence before the Federal Magistrate.

In SZLIX, the applicant sought to rely on the High Court’s decision SZFDE because the applicant claimed the ‘migration agent’ did not inform him of a second date of hearing.  The Full Federal Court decision was critical of the evidence which was before the magistrate, obviously caused by the haste in the hearing. That aside the Full Federal Court found that negligence or error by a migration agent would not ordinarily amount to the level of fraud identified in SZFDE.  Here is what the Full Federal Court concluded:

32 We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent’s acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal’s discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a “fraud on the Tribunal”.

33 The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw.. (1938) 60 CLR 336 at 363& 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.

34 We will order that the decision of the Federal Magistrate be set aside…Because of the unsatisfactory state of the evidence upon which his Honour was asked to make his decision – we imply no criticism of him in this – we consider that the appropriate course is to remit the matter to his Honour for re-hearing.


A side bar to this case is that the speed of the way all of the matters before the federal magistrate was conducted does not benefit anyone. Always oppose undue haste and use this case as an example.

Note what the court said above – The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.’

This reflects the general law and a good example of where this comes into play is the compliance with Public Interest Criteria 3003, which among others things states:

the Minister is satisfied that:

(c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

(d) there are compelling reasons for granting the visa;

MSI 374: Schedule 3: Additional criteria applicable to unlawful non-citizens and certain bridging visa classes dated 21/3/03 states in relation to complying with 3003:


Failure by the agent or lawyer to look after the applicant’s best interests may be grounds for the applicant to take legal action against their agent, but would not normally be grounds (on its own) for finding that the applicant became an illegal entrant or a person in Australia without a substantive visa due to factors beyond their control.

Barbara Davidson