‘Collateral attack’

This term is used loosely.  It was discussed by McHugh J in Ousley v R (1997) 192 CLR 69, page 99:

A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision[73]. In In re Preston[74], however, Lord Scarman used the term “collateral challenge” to include any process challenging a decision – including an application for judicial review – other than a proceeding by way of appeal. This use of the term is readily intelligible. However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term “collateral challenge” is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues[75].

The Supreme Court of Victoria is a superior court of record. Judicial orders of superior courts cannot be made the subject of a collateral challenge. Such orders are valid until they are set aside or varied by appeal to a higher court even if they have been made in excess of jurisdiction[76]. They cannot be treated as nullities[77]. It is not open to an inferior court to ignore them. Indeed, a superior court “which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law”[78]. If warrants issued under the Act by the Supreme Court are judicial orders, it follows that the trial judge was correct in holding that he had no jurisdiction to entertain a collateral challenge to their validity.

These comments were adopted in Singh v Minister for Immigration [2016] FCCA 387, [25] where Manousaridis J observed:

[25] … The expression “collateral attack” is often used to denote the challenging of an administrative act or delegated legislation “in proceedings where the validity of the administrative act [or delegated legislation] is merely an incident in determining other issues”.12 An example is Guo v Minister for Immigration and Citizenship where Besanko J considered whether a regulation made under s 504 of the Act was invalid.13 His Honour noted that the Minister did not suggest that a collateral attack on the validity of the regulation was not permissible, and that the appeal was conducted on the footing that if his Honour were to decide that the regulation in question was invalid, constitutional writs directed to the Tribunal should issue.14

Collateral challenges may nonetheless be permissible–the observations in Ousley are in relation to decisions made by a superior Court of record.  Decision made by a Tribunal or officer of the Commonwealth or a State are different.  Thus, in Robinson v Vanston [1999] VSC 541, [152], Ashley JA observed:

Focussing, then, on the matter of principle, the making of a decision upon an application for classification is an administrative act. Prima facie it should be open to challenge by administrative law process. That should not prevent it being subject to collateral challenge, as to which see Ousley v The Queen (1997) 192 CLR 69 at 98- 99 per McHugh J.

More recently, in R v Debono [2012] VSC 350; 222 A Crim R 194 Kyriou J observed at [162]:

Administrative acts and decisions are generally susceptible to collateral challenge in a court.[151]  For example, a collateral challenge to the validity of a telecommunications interception warrant can be brought in the course of a trial, provided that the trial judge has jurisdiction to determine such a challenge.[152]  However, the scope of permissible collateral challenge is unclear.[153]

Sometimes statute may limit the ability to mount a collateral attack.  In Director of Housing v Sudi [2011] VSCA 266; 33 VR 559 the Victorian Court of Appeal considered a situation where the Director made an application to VCAT for eviction orders under the Residential Tenancies Act.  VCAT considered an argument that the anterior decision by the Director to make such an application at all was unlawful because of the Charter of Human Rights and Responsibilities.  Maxwell P considered the issue from [58] onwards and concluded that the particular statutory scheme did not allow VCAT to uphold such a collateral attack.

 

The Department’s intransigent insistence on lawyers’ proof of ‘authority’

This ham-fisted practice of requiring the principal to provide written ‘authority’ of proof of a lawyer’s authority to act was discussed in BMF16 v Minister for Immigration [2016] FCA 1530 at [130]-[131].  Bromberg J did not make any specific consequential findings but his Honour did make some veiled criticism:

130. …the evidence establishes that the Department refused to recognise Russell Kennedy or Ms Olivia McMillan or Ms Emma Dunlevie, both lawyers and migration agents employed by Russell Kennedy, as F’s representatives in relation to his application for citizenship. At this point, it is convenient that I return to the facts which, as earlier indicated, I will now elaborate upon.

131. As I have earlier outlined, on 30 March 2016, Russell Kennedy wrote to the Department requesting that the Minister make a decision about F’s application for Australian citizenship. It is apparent that that correspondence did not satisfy the Department that Russell Kennedy was representing F in relation to his application for citizenship. That may be thought surprising given that the representation was made by a lawyer who was subject to rigorous professional obligations including a duty to act honestly: cl 4.1.2 Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015. In response to the letter, the Department telephoned Russell Kennedy requesting a completed Form 956 “Advice by a migration agent/exempt person of providing immigration assistance”. In response, Ms McMillan and Ms Dunlevie wrote to the Department explaining that pursuant to the Reg 7G(1)(b) of the Migration Agents Regulations 1998 (Cth), they were providing notification by letter, instead of by completed Form 956, that they were acting for F in relation to his application to become an Australian citizen. On 6 July 2016, Ms McMillan spoke by telephone to a solicitor representing the Minister in this proceeding. She requested that the solicitor advise the Minister to direct its correspondence in respect of F to Russell Kennedy. She was told that the solicitor would advise the responsible person in the Department by email. Ms McMillan told the solicitor that F was in Pakistan visiting his ill mother and was expected to return to Australia on 2 October 2016 and that an interview with F could be conducted by telephone if need be.

Denial of procedural fairness creates near-absolute consequences

The proposition is trite but sometimes overlooked.

A modern High Court migration authority for this proposition can be found in SZBEL v Minister for Immigration (2006) 228 CLR 152, [25].

In BMF16 v Minister for Immigration [2016] FCA 1530, Bromberg J said at [222]-[224]:

222. In Ucar, following a comprehensive survey of the authorities, Redlich JA (with whom Warren CJ and Chernov JA relevantly agreed) stated (footnotes omitted):

In my view, the principle laid down in Stead contemplates two circumstances in which relief may be refused. It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.

223. As to the first circumstance contemplated by Stead and referred to by Redlich JA, there is no incontrovertible fact or point of law which provides a discrete basis for G’s refusal decision which is not affected by the procedural unfairness which I have found. As for the second circumstance contemplated in Stead, it was for the Minister to demonstrate that it would be futile to set aside G’s refusal decision because on a reconsideration, the result would inevitably be the same (as to that onus see also Hayne J in CSR Limited v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [109]).

224. In any event, and putting aside questions of onus, as McHugh J said in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [104] (in a passage later referred to by the Full Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [80]), “once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome”. Where the issue is whether additional evidence and submissions could have affected the outcome of the decision-maker’s consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile: VAAD at [81] citing Kirby J in NAFF at [85]. It will be “no easy task” (Stead at 145) to satisfy a court that a denial of natural justice could have had no bearing on the outcome.

The reference to Aala was most recently re-endorsed in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51.

 

Indemnity costs against Minister for Immigration

In SZMJQ v Minister for Immigration (No.2) [2009] FMCA 1137 Raphael FM suggested that public law proceedings might not be amenable to Calderbank offers, but did not decide the point.

In SZPAD v Minister for Immigration [2012] FMCA 73, Smith FM did not explicitly decide the point but at [51]-[53] left open the possibility that indemnity costs might be awarded because of an unreasonable failure to accept an offer of compromise.

Neither SZMJQ nor SZPAD (insofar as it concerns this issue) appear to have been subsequently considered.

What is clear from SZMJQ at least is that any Calderbank offer must at least identify the ground upon which any offer to consent to remittal is to be based. Without this (for example, general reference to an application with multiple grounds), the Calderbank offer is uncertain and therefore cannot found a basis for indemnity costs.

Misinterpretation of evidence

The weight of authorities focus on how alleged misinterpretation may have distorted the overall process. For a discussion of recent authorities and application, see eg:

In the key case of SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212, Flick J was in dissent as to the standard of interpretation required; the majority concluded that some margin of misinterpretation could be tolerated whereas Flick J appeared to conclude that the standard expected of an interpretation is higher.

 

Costs in criminal proceedings

Latoudis v Casey is the typically-cited case for the awarding of costs to a successful defendant. There are however a number of passages that highlight the misconceived nature that costs follow the event in criminal proceedings (especially when a prosecutor seeks costs after a finding of guilt).

At [16] of the judgment of Mason CJ (who agreed that costs in that case should be awarded to the successful defendant):
I am not persuaded that there is a complete analogy between the discretion to award costs in summary proceedings and the power to award costs in civil proceedings. For that reason I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. As I have noted, the making of separate provision in s.97(a) and (b) is not without significance. The differences between criminal and civil proceedings are substantial, not least of them being the absence of pleadings, the different onus of proof, the defendant’s inability in criminal proceedings to enter into a compromise and the possibility that the charge, if proved, may affect the defendant’s livelihood and reputation.

At [34] of the judgment of Dawson J (who dissented):
For all of these reasons, a successful defendant in summary proceedings for an offence can, in my view, have no expectation as a general rule, unlike a successful party in civil proceedings, that costs will be awarded in his favour.

‘

The obligation to ‘have regard to’ an applicant’s wish to obtain further evidence

Section 426 of the Migration Act requires the Tribunal to ‘have regard to’ an applicant’s request to obtain further evidence from, or call, a particular witness. The Tribunal is not required to in fact do so.

However, the authorities are clear that the question of whether the Tribunal should is a discretion that must (therefore) be exercised reasonably.

In addition, the Tribunal cannot ‘merely go through the motions’–there must be a genuine consideration of whether to exercise the discretion: CBZH v Minister for Immigration and Border Protection [2014] FCA 1023.

Also, in BOL15 v Minister for Immigration and Border Protection [2016] FCCA 1994, Lucev J said:

Whether or not calling the Applicant’s Proposed Witness may have resulted in evidence being given which did not assist the applicant is not to the point, rather, the Court cannot preclude the possibility that such evidence might have assisted the applicant to establish his claims

Zealous findings of untruthfulness

In NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98, the Full Court endorsed the (long-standing) proposition that one should be cautious in making active findings of witness untruthfulness.

[147] It should nevertheless be accepted at the outset that a finding that a witness has been “untruthful” attracts a necessary exercise of judicial caution: cf. Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268. Justices Brennan, Dawson, Toohey and Gaudron there observed:

It is particularly important in disciplinary cases, where the honesty and candour of legal practitioners assume special significance, that the distinction between the rejection of a person’s evidence and a positive finding that he or she deliberately lied be observed. The mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account. The matter was put succinctly, although in a different context, by Cussen J in R v Richmond ([1920] VLR 9 at 12):

It would certainly act as a deterrent even to an innocent man giving evidence, especially where there is a strong case against him, if he knew that if the jury does not accept his evidence he may receive a sentence heavier than otherwise would be imposed.

A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on “the single oath of another man, without any confirmatory evidence.

…

[150] Where there has been “significant delay” [in providing reasons], it has been said that “it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected”: Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 at [72] per Carr, Emmett and Gyles JJ.

In Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372, Deputy President Forgie of the AAT referred to the obvious proposition that a witness being untruthful in one aspect of his or her evidence does not mean that the entirety of the witness’s evidence is untruthful.  Similarly, there is an important distinction between evidence not being credible, and the witness not being credible.  There was extensive discussion of this at [64]-[76].

These are important reminders of how decision-makers must not rush to condemn witnesses and applicants as outright liars, as is far too often the case.  Whether misconceived, over-zealous findings of adverse credibility might lead to jurisdictional error is yet to be fully-explored, but questions of reasonableness appear to be relevant.  In BTF15 v Minister for Immigration and Border Protection [2016] FCA 647, Katzmann J criticised a finding that witnesses fabricated evidence as ‘unreasonable’.  At [56], her Honour said:

I am troubled by the Tribunal’s conclusion that the statements of the two witnesses were fabricated.  It is one thing to find that evidence should not be given any weight.  It is quite another to conclude that evidence is a fabrication.  The High Court has said in a different context that “as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence”:  Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ). The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant’s account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271–2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.

About 11 years earlier, the Federal Court observed in Minister for Immigration & Multicultural & Indigenous Affairsv Maltsin [2005] FCAFC 118 at [54] that the damning of witnesses other than the applicant might be a jurisdictional error, in at least two distinct ways:

…  It was, however, unfair in the circumstances to condemn as dishonest a group of individuals, some of whom had and some of whom had not prepared statements for the Tribunal, in circumstances where they had no chance at all to answer such an accusation, especially as the basis for the finding of dishonesty was not self-evident.

…

Mahon v Air New Zealand may also provide some support for the proposition that, where the rules of procedural fairness apply, they control the hearing before the relevant administrative body generally and, at least in some circumstances, may enure for the benefit of persons other than an applicant: see, however, the discussion in Re Hurd and Hewitt [1994] 120 DLR (4th) 105, reversing Hurd v Hewitt (1991) 13 Admin LR (2d) 223. Although each of these authorities is distinguishable from the present case, each indicates that it is at least arguable that a denial of procedural fairness to a person other than an applicant before the Tribunal may in some circumstances impinge on the validity of the ultimate decision. Alternatively, this may be a case in which the Tribunal’s “web of deceit” finding so lacked any reasonable foundation that, to adopt the language of Allsop J in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH of 2001“) at [136]:

“To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.”

In view of the errors already identified, however, it is unnecessary to determine whether a failure to act fairly as regards the respondents’ family and friends could amount to a jurisdictional error that would vitiate the decision, or an error of the kind described by Allsop J in NADH of 2001.

In Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55 the Full Federal Court observed at [16]:

The circumstances here were such as to make applicable what, in Mahon v Air New Zealand Ltd [1984] 1 AC 808, Lord Diplock identified as one of the rules of natural justice. His Lordship said at 821:

“The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.  (Original emphasis.)”

See also Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, at 116 [par 78], (Gaudron and Gummow JJ) and 121 [par 101] (McHugh J). In Aala (supra), at par [101] McHugh J said:

“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. 

The Full Federal Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 concluded:

It may be accepted that cases such as SZNPG and Smith do make the point that, unless it is strictly necessary, it is preferable not to reach a conclusion that an applicant is a “liar”. But while this is indeed sound practice, the remarks do not suggest that the Tribunal will have fallen into jurisdictional error if it does reach such a finding. There was ample foundation in this instance for the Tribunal to reach the conclusion that the appellant was not a witness of truth.

However, that observation does not preclude that sometimes a finding that a person has ‘lied’ might be unreasonable, and for that reason, a jurisdictional error.

Requirements for ‘no evidence’

In the context of migration decisions (but necessarily applicable to decision-making generally), a successful no-evidence submission requires:

  • demonstration that there was no evidence at all; and
  • the impugned fact being a jurisdictional fact.

Perry J referred to this in Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54]:

It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]–[19] (Gray, Moore and Weinberg JJ). There must be no evidence at all on which the finding could have been based: ibid. … Secondly and in any event, a jurisdictional fact must be involved before a jurisdictional error based on the “no-evidence” ground can be established: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [39] (Gummow and Hayne JJ, with whose reasons Gleeson CJ agreed at [1]). As Madgwick J held in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 (SZAPC) at [57] in summarising the effect of the High Court authorities: “[a] “no evidence” attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact” (quoting Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [36]).

There must literally be no evidence at all.  ‘Flimsy’ evidence is sufficient for the finding to survive: Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54].

The need for the finding (alleged to be supported by no evidence) to be a jurisdictional fact was discussed by Bromberg J in Buchwald v Minister for Immigration and Border Protection [2016] FCA 101, [32]-[40].  In particular, his Honour referred at [40] to French CJ’s observations in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57]:

The term “jurisdictional fact“ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements“. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

The no-evidence ground often also factually overlaps with the illogicality ground: see SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 [55]-[70].  There may also be overlap with unreasonableness: see eg ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 , [101].