Bad Faith / Unclean Hands





In SZQBN v Minister for Immigration & Citizenship [2013] FCAFC 94, the Full Federal Court held that the bad faith demonstrated by the visa applicant, through the untruths told, was not in itself sufficient to refuse relief. The Full Court found:

61      The decision at first instance suffers from a failure on his Honour’s part to identify in one place in the reasons, and with precision, the finding of bad faith and its connection with the relief that was sought.  What was required was, at very least, the particular statements or conduct that constituted bad faith, how it constituted bad faith or lack of clean hands and how it was acted upon: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [41]; see also SZHLP at [36].

68      However, it seems to us, with respect, that this approach fails to grapple with the need to demonstrate the necessary transactional connection between the appellant’s untruths and the relief which he claimed in the proceeding in the Federal Magistrates Court.

69      It was not sufficient to point to the entirety of the record of the appellant’s interview with the delegate, or the officers of the Department during the airport interview, as constituting the transaction.  The authorities to which we have referred suggest that what was required was a sufficient connection between the untruths told by the appellant during the interview and the relief to which he would otherwise have been entitled as a result of the admitted jurisdictional error.

70      The most useful statement of the applicable principle to the facts of the present case may be found in the remarks of Barton ACJ in Meyers v Casey at 101-102.  The effect of what his Honour said, as it applies to the present case is that it was not the correctness of the decision of the delegate that was in issue, but its validity.

74         There was no immediate or necessary connection between the untruths which the delegate found to have been made and the failure of the delegate to exercise her jurisdiction in accordance with law by giving the appellant particulars of the adverse information as required by s 120 of the Act.

75         The appellant’s claim for judicial review in the Federal Magistrates Court was not based upon a challenge to the merits of the delegate’s finding.  The correctness of the finding could not be put in issue in a claim for judicial review.  As in Meyers v Casey, evidence of the “turpitude or integrity” of the appellant’s conduct was not the issue.  Yet the Federal Magistrate conducted a hearing in which the Minister sought to obtain factual findings from his Honour as to the correctness of the underlying findings of untruthfulness which had been made by the delegate.

76         In our opinion that course was contrary to the basic principle that judicial review proceedings are distinct from merits review.  It is akin to the approach against which Lander J warned in Zhong v Minister for Immigration and Citizenship (2008) 171 FCR 444 at [88].

77         The effect of what Lander J said in that case, as applied here, is that the Minister’s submission, both at first instance and on appeal, puts the Court in a position where it must form a judgment about the appellant’s conduct in his interview with the delegate.  The refusal of the Federal Magistrate to issue a constitutional writ was tantamount to a finding that the delegate was correct in deciding to cancel the visa.

Barbara Davidson