AWL22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 652
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWL22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 652
File number: MLG 255 of 2022 Judgment of: JUDGE CHAMPION Date of judgment: 27 July 2023 Catchwords: MIGRATION LAW – Protection visa – Application for an extension of time to seek judicial review of decision of the Administrative Appeals Tribunal – Applicants alleged third-party fraud stultified the Tribunal’s processes – In this case given fraud allegation appropriate for the Court to engage in more than an impressionistic assessment of the merits on an extension of time application – First Applicant gave sworn evidence as to alleged fraud – First Applicant’s evidence as to alleged fraud unsatisfactory – No fraud proved – Application dismissed Legislation: Evidence Act 1995 (Cth) ss. 55, 75
Migration Act 1958 (Cth) ss. 91X, 426, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 15.16
Cases cited: Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 4; [2002] HCA 59
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd. v Leigh (No. 3) [2012] FCA 680
EWD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 832
Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46;
Singh v Minister for Immigration & Anor (2016) FCR 554; [2016] FCAFC 141
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZRUR vMinister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of last submissions: 8 June 2023 Date of hearing: 2 May and 8 June 2023 Place: Melbourne Applicants: In person Counsel for the First Respondent: Mr Cunynghame Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 255 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWL22
First Applicant
AWM22
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
27 July 2023
THE COURT ORDERS THAT:
1.The application for an extension of time is refused.
AND THE COURT NOTES:
A.The Court will hear from the party as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
The Applicants are citizens of Thailand. The Second Applicant is the First Applicant’s husband.
The Applicants seek an extension of time under s. 477(1) of the Migration Act 1958 in which to seek judicial review of a decision of the Administrative Appeals Tribunal.
The single ground of judicial review the Applicants advanced (particulars of which are explained below) was as follows:
They were the victims of fraud by Ms Suni Detkunram (an unlicensed migration agent) and therefore they did not receive procedural fairness before the Tribunal.
In the application to the Tribunal for review of the delegate’s decision, an email address was provided for “correspondence details”: [AWL22][email protected] (Email Address) (CB75-76). The first part of the Email Address was the First Applicant’s first name (omitted because of the publication restrictions in s. 91X of the Act). The Tribunal emailed all its correspondence in connection with its hearing to the Email Address.
On the face of the documents, the Tribunal – in a regular way – had invited the Applicants to appear at a hearing in compliance with Division 4 of Part 7 of the Act. The Applicants did not appear at the scheduled Tribunal hearing. As a result, the Tribunal dismissed the application (dismissal decision) and, when the Applicants did not apply to reinstate their application, confirmed its decision (confirmation decision): ss. 426(1A)(b) and s. 426(1E). The Applicants do not submit that the Tribunal failed to comply with its statutory obligations to communicate about the hearing insofar as it sent correspondence to the Email Address.
The Applicants submit that they were victims of third-party fraud and that the fraud stultified the Tribunal’s procedural fairness obligations because they did not receive, nor otherwise know about, the Tribunal’s email correspondence to the Email Address. They contended that a fraudulent unlicensed migration agent, Ms Suni Detkunram (Ms Detkunram), initiated the Tribunal application without instructions and set up the Email Address without their knowledge. They say only Ms Detkunram had access to the Email Address and that Ms Detkunram never passed on to them any Tribunal correspondence sent to, or received at, the Email Address. For that reason, the Applicants did not attend the Tribunal hearing. Because of Ms Detkunram’s actions, the Applicants submit that they had no knowledge of the Tribunal’s hearing invitation, the dismissal decision or the confirmation decision.
The Tribunal made its dismissal decision in October 2021 and its confirmation decision in November 2021. The First Applicant submitted that she learned about these issues sometime in 2022 when she happened to check her visa status on the Department of Home Affairs Visa Entitlement Verification Online system (VEVO) and found she had no current visa.
The High Court has observed that, “an effective subversion of the operation of s. 425 also subverts the observance by the tribunal of its obligation to accord procedural fairness to the applicants for review”: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35 at, [25], [51]–[52]; see also Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [14]–[15].
The Applicants submit Ms Detkunram’s third-party fraud stultified the Tribunal’s own processes and, for that reason, the Tribunal’s dismissal decision and confirmation decision are invalid.
SUMMARY
The Applicants have not discharged their heavy burden of proving that they are the innocent victims of fraud. The First Applicant included the very same Email Address in an affidavit she made a fortnight before hearing in this court at a time when Ms Detkunram had no involvement in the matter. In an unguarded moment in her evidence, she described the Email Address as her “old email address”. The Applicants provided no satisfactory explanation for how the Email Address, which is at the centre of their claims to have been innocent victims of fraud perpetrated by Ms Detkunram, appeared on the First Applicant’s affidavit that was filed in the course of these proceedings. I do not accept that the Applicants have proved that they knew nothing of the Email Address at the time of the Tribunal application.
I will refuse the application for an extension of time. My reasons are set out below.
BACKGROUND
The Applicants sought protection visas because they claimed that they witnessed a police operation in Thailand and subsequently attracted the ire of the criminal entity that was the target of the operation (CB65). As a result, they contended that they were real risk of significant harm if removed from Australia to Thailand. On 1 July 2019, a delegate for the Minister (Delegate) refused the Applicants’ protection visa applications because the Delegate was satisfied that there were effective protection measures available to the Applicants in the receiving country should they be returned to Thailand (CB60-70).
On 15 July 2019, in the circumstances described above, there was an application to the Tribunal for review of the delegate’s decision (CB75-76). The application recorded the Email Address for correspondence details. On 15 July 2019, the Tribunal acknowledged the application and requested a “contact number” (CB77-79). There was no response to the Tribunal’s request for a contact number.
On or about 8 October 2021 (more than 2 years later) (CB81), the Tribunal emailed a hearing invitation to the Email Address for a telephone hearing on 26 October 2021 and provided the hearing telephone number the Applicants should call for the hearing (CB81-84).
On 27 October 2021, following the Applicants’ non-attendance at the scheduled hearing the previous day, the Tribunal made the dismissal decision.
On 12 November 2021, there having been no reinstatement applications, the Tribunal made its confirmation decision to dismiss the application for review (CB97-98). The Tribunal sent an email to the Email Address to notify the Applicants of it decision and to give written reasons for its confirmation decision on 12 November 2021 (CB95-96).
As set out above, the Applicants submit in this Court that they did not receive, or know about, these emails to the Email Address and, as a result, did not know of the dismissal decision or the confirmation decision.
JUDICIAL REVIEW APPLICATION
On 16 January 2022, an application was filed in this Court seeking an extension of time in which to seek judicial review of the confirmation decision (Originating Application).
The Originating Application
Although the Applicants are aggrieved at the Tribunal’s decisions and continue to seek protection visas, the First Applicant’s evidence was that Ms Detkunram filed the judicial review application in this court without her knowledge. Despite both Applicants having apparently signed the Originating Application, the First Applicant submitted that it was not her signature (or the signature of the Second Applicant) on the Originating Application. The Originating Application sought an extension of time because the First Applicant was unable to “concentrate on exams and answering Court questions and worrying about Court fees as well.” In her evidence, the First Applicant said that she had not provided these instructions. She had not in fact been sitting exams. It is not necessary to make a finding as to the authenticity of the Applicants’ signatures, nor as to whether the First Applicant provided these instructions, because (as is explained below) the Court is not satisfied as to an anterior issue: namely, the Applicants have not proved that third-party fraud in relation to the Email Address stultified the Tribunal’s processes.
The eight grounds of review
The Originating Application as filed set out eight pro forma grounds of judicial review not apparently linked with the underlying facts. The same eight grounds have appeared, verbatim, in many Court applications: EWD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 832 at [21] (Judge Vasta). At hearing, the Applicants did not persist with those eight pro forma grounds. I would not have extended time had the Applicants relied on those eight grounds because they lack sufficient merit to warrant an extension of time in the interests of justice under s. 477(2)(a).
Adjournment of the hearing on 2 May 2023
The Court first listed the matter for final hearing on 2 May 2023. Despite previous orders timetabling the filing of material, a migration agent, Mr Paul O’Connor, filed an affidavit at the very same time as the hearing commenced on 2 May 2023 (Mr O’Connor’s First Affidavit). Mr O’Connor deposed to facts which, for the first time, raised allegations that the Applicants had been the victim of a “fraud” by an unlicensed “migration agent”. I adjourned the hearing. I granted leave for the Applicants to file any amended application (I subsequently granted leave for the Applicants orally to amend their grounds of review at the resumed hearing) and any evidence in support of the fraud allegation.
If fraud is alleged, the Court exercising judicial review may take account of any relevant material placed before it: SZFDE, [38]. In SZRUR vMinister for Immigration and Border Protection [2013] FCAFC 146; 138 ALD 46 a Full Court held that procedural fairness required a visa applicant who alleged fraud be given the opportunity of giving sworn evidence as to the fraud.
The evidence: Mr O’Connor’s Second Affidavit and the First Applicant’s Affidavit
Before the trial resumed, the Applicants on 21 May 2023 filed two affidavits which detailed Ms Detkunram’s alleged fraud said to have stultified the Tribunal processes as follows:
(a)an affidavit of Mr Paul O’Connor made on 21 May 2023 (Mr O’Connor’s Second Affidavit); and
(b)an affidavit of the First Applicant also made on 21 May 2023 (First Applicant’s Affidavit)
Mr O’Connor’s Second Affidavit
Mr O’Connor’s Second Affidavit (21 May 2023) completely reproduced his First Affidavit (2 May 2023) made at the time of the first hearing save for the omission of an irrelevant paragraph (para. [68]). Mr O’Connor’s First Affidavit was not read at the hearing.
On the resumption of the trial, the First Respondent objected to the admissibility of all of Mr O’Connor’s Second Affidavit.
Mr O’Connor’s Second Affidavit comprised only “objectionable material” and I struck it out in its entirety. I ruled procedurally that Mr O’Connor’s Second Affidavit would not be admitted into evidence during the course of the proceeding so that the parties knew the final state of the evidence before addresses: Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 41; [2002] HCA 59 [77]. I set out my reasons for not receiving Mr O’Connor’s Second Affidavit into evidence below.
The affidavit was a mixture of material that was “inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative” and/or “contain[ed] opinions of persons not qualified to give them”, and therefore I ruled it should be struck out pursuant to r. 15.16(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
Significant parts of the Mr O’Connor’s Second Affidavit did not contain relevant evidence within the meaning of s. 55 of the Evidence Act 1995 (Cth) which could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. The proposed evidence was not directed as to whether any fraud of Ms Detkunram stultified the operation of the legislative scheme with its obligation to afford procedural fairness to the Applicants: see DUA16 at [14] (below).
The affidavit contained substantial hearsay, which did not fall within the s. 75 exception of the Evidence Act. Further, other parts of the affidavit contained inadmissible expert opinion. Some parts of the affidavit were inadmissible both because they contained inadmissible hearsay and inadmissible opinion evidence. Paragraph [1] commenced as follows: “The Department of Home Affairs (DOHA) over the past few years up to the present has accepted applications from a person known to them to be an unlicensed migration agent, Suni Detkunram […]”. The source of this knowledge was not set out (s. 75) nor did the affidavit set out Mr O’Connor’s qualification to express that opinion
The affidavit was argumentative or in the nature of a submission. Despite no apparent personal knowledge of the Applicants at a time when those matters were before the Tribunal, in para. [18], Mr O’Connor deposed “this applicant […] had the opportunity to present their case for protection ruined” because of the actions of Ms Detkunram, and that the actions of the Department of Home Affairs had “joined the department to the criminal offence”. In para. [25] Mr O’Connor asserted: “the applicant’s email and phone number were never provided to the […] Tribunal”. That reference followed another person’s name who had no apparent relevance to this proceeding. Paragraphs [16]–[19], [20]–[32], [33]–[37] and [39]–[67] were also argumentative or in the nature of a submission
The affidavit included “scandalous” material in the sense of matters “extraneous to the issues raised in the proceeding on which evidence could properly be brought forward”: C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd. v. Leigh (No. 3) [2012] FCA 680, [5] (Yates J). The allegation at [15] that the “Department of Home Affairs (DOHA) and the Administrative Appeals Tribunal have knowingly accepted unregistered peoples as agents and assisted in facilitating criminal breaches of the Migration Act 1958” was not an issue for decision in this case.
I will return to the First Applicant’s Affidavit below.
Resumption of the hearing on 8 June 2023
Oral amendment of the grounds for review
At the resumed hearing, the Applicants sought to press the single ground of judicial review set out in paragraph [3] of these reasons that they had been the innocent victims of Ms Detkunram’s fraud and that the fraud had stultified the Tribunal’s processes.
The Applicants were self-represented. The Court has a duty to ensure a fair hearing for a litigant-in-person. That duty may extend to permitting litigants-in-person to express any ground of review with sufficient particularity for the Court to “determine the true nature of the complaint about the decision-maker’s exercise (or failure to exercise) jurisdiction or power”: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [25] (Feutrill J). It was for that reason that I permitted the Applicants orally to amend the grounds of review on the resumption of the trial. The First Respondent did not oppose the oral amendment to the grounds of review.
Principles as to an Extension of Time
Pursuant to s. 477(1) of the Act, the application in this Court (noting the fact that the Applicants said that they did not instruct any person to make the application on their behalf) was made on or about 16 January 2022, some 30 days out of time.
Section 477(2) does not define or confine the matters that the Court can or should have regard to in considering whether to extend time in the interests of the administration of justice. Often the Court will proceed on an “impressionistic” assessment of the merits. In some cases, it may be necessary to examine the proposed application in some detail. Because of the way in which the fraud allegation emerged in this case, I examined the merits of the proposed application in more detail: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28 at [18].
Fraud Claims
In Singh v Minister for Immigration & Anor (2016) FCR 554; [2016] FCAFC 141, a Full Court noted at [52] that before discretionary relief is granted, “it will be necessary to find that the agent’s conduct is not only a fraud on the visa applicant but must also stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act”.
In DUA16, a plurality of the High Court held:
[14] In SZFDE v Minister for Immigration and Citizenship, this Court held that a decision of the Refugee Review Tribunal was correctly set aside in circumstances where a rogue had perpetrated a fraud on a family of applicants by falsely representing that he was a solicitor and a migration agent and dissuading the applicants from attending the Tribunal hearing. The fraud was also perpetrated on the Tribunal, whose decision to proceed in the absence of the applicants might not have been made if it had known about the misconduct. This Court emphasised that the appeal required “close attention to the nature, scope and purpose of the particular system of review” rather than reliance upon maxims such as “fraud unravels everything” The rogue’s fraud stultified the operation of the legislative scheme to afford natural justice to the applicants
[15] The insistence by this Court in SZFDE that a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Tribunal, was appropriate because grounds of judicial review arise by implication from the statute which provides the jurisdiction to make the decision. Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently, so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, “there are sound reasons of policy” why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.
[Footnotes omitted and emphasis added]
The Applicants must prove that they have been the innocent victims of the fraud: Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213, [78], [102]. If the Applicants establish the fraud, the second question is how the fraud, “which is proven to have occurred”, affected the processes by which their visa application were to be considered: Maharajan, [103].
Application of the principles to the current case: the First Applicant’s affidavit and oral evidence
I admitted the First Applicant’s affidavit made on 21 May 2023 into evidence without objection: (Exhibit A1). Further, the First Applicant gave oral evidence and was cross-examined so that I could understand the nature of the alleged fraud and the evidence could be tested.
The First Applicant’s oral evidence was that she had prepared her affidavit in this Court (made on 21 May 2023) by telling her story in the Thai language to a friend who had written it down. As the First Applicant had not completed Part F of the affidavit (which sets out a jurat for a non-English speaker), I stood the matter down so that the affidavit could be re-interpreted before the First Applicant gave her oral evidence. She adopted her affidavit by way of affirmation.
The First Applicant deposed that she believed Ms Detkunram was “permitted under Australian law to assist me with my protection visa process”: First Applicant’s Affidavit, [5]. Ms Detkunram told her that she (Ms Detkunram) was a lawyer: First Applicant’s Affidavit, [5]. The First Applicant’s evidence was that she did not know when the Delegate refused the protection visa. When the Applicants’ protection visa applications were before the Delegate, the contact email address for correspondence was [email protected] (CB9), an address apparently associated with Ms Detkunram.
On 15 July 2019, the Tribunal review application listed the Email Address for correspondence. That is, a different email address was provided for Tribunal correspondence than had been used for correspondence with the Delegate. On the face of the Tribunal application, it appeared the Applicants lodged the Tribunal application themselves. Nothing on the face of the application revealed Ms Detkunram (or any other representative) lodged the application on the Applicants’ behalf: (CB75-76). The First Applicant deposed that Ms Detkunram “applied for our AAT appeal”: First Applicant’s Affidavit, [9]. She [the First Applicant] “did not sign any form for the [Tribunal] application”: First Applicant’s Affidavit, [9]. The First Applicant said that she had not applied to the Tribunal herself and did not see the Tribunal application. Her evidence was that Ms Detkunram, without her knowledge, created the Email Address in her name for the purpose of the Tribunal application.
The Applicants acquiesced in the Tribunal application. They believed that Ms Detkunram was progressing the matter because they “paid […] $3000 each for the AAT”: First Applicant’s Affidavit, [11].
The Tribunal application provided the Email Address as the means for the Tribunal to communicate with the Applicants for the purposes of the application. As noted, the Tribunal sent all correspondence to the Email Address. The First Applicant said that the Applicants did not receive any of these communications because Ms Detkunram had created the Email Address and, despite the Email Address being in the First Applicant’s name, it was never her Email Address. Because they had not received, and they did not know about, the Tribunal’s correspondence to the Email Address they did not attend at the scheduled Tribunal hearing or apply for the reinstatement of the application, before the confirmation decision.
The First Applicant added that not only had Ms Detkunram set up the Email Address but that it was password protected and that she (the First Applicant) had no access to it. At an unspecified point in time, for reasons that remained unclear, Ms Detkunram notified the First Applicant of the Email Address (of the First Applicant learnt of it it) and the First Applicant requested that Ms Detkunram give her the password. The password was incorrect and the First Applicant remained locked out from access to it. The First Applicant’s evidence was that she did not follow up Ms Detkunram after that communication to persist in her attempts to gain access to the Email Address.
On 21 May 2023 (a fortnight before the resumed hearing), the First Applicant filed her affidavit in this Court in which she detailed the alleged fraud. As noted, she said that she prepared the affidavit by telling her story to a friend in the Thai language and her friend wrote the story down. Her affidavit accurately listed her current residential address. Importantly, it also gave as her own email address the Email Address. That is, the First Applicant included on a recent affidavit the very email address that the Tribunal had used for its correspondence to her. I could not reconcile the inclusion of the Email Address in the First Applicant’s own affidavit made on 21 May 2023 in this proceeding with the Applicant’s evidence that Ms Detkunram had established the Email Address without her knowledge and she never had access to it. The First Applicant had made her affidavit in this Court at a time when Ms Detkunram had no involvement in the matter.
Pressed on why the Email Address appeared on her own affidavit, the First Applicant at first said unguardedly that it was her “old email address”. She then sought to correct herself that it had never been her email address. She then proffered that her friend might have found that Email Address in the Court Book. She was further cross-examined as to that explanation given that she had also deposed in her affidavit “I have never received a copy of the Court book” (Affidavit, par. [16]). She was forced to qualify that explanation in her oral evidence by saying that she had only received a digital Court book. She surmised that her friend might have found the Email Address in the Court book but said that she was “guessing”.
CONCLUSION
The allegation of fraud is a serious matter. The Applicants carry a “heavy burden” to prove fraud in circumstances in which the Tribunal is “blameless”: SZRUR, [51] (Allsop CJ). An applicant cannot prove fraud by “inexact proofs, indefinite testimony, or indirect references”: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
The First Applicant’s explanation as to how and why the Email Address, as her contact address, appeared on her recent affidavit was unsatisfactory. There was no satisfactory explanation as to why (if the First Applicant had no knowledge of, or access to, the Email Address as alleged) a fortnight before the hearing in this proceeding the First Applicant included the Email Address on her own affidavit when Ms Detkunram was not involved in the affidavit’s preparation. I find that the Email Address was the First Applicant’s “old email address” as she said in an unguarded answer in the course of her evidence. It is not credible that that Email Address would have appeared in the First Applicant’s own affidavit (made a fortnight before the resumed trial date) unless it was an email address she knew well. I do not accept that Ms Detkunram set up the Email Address in the First Applicant’s name without her knowledge. I also do not accept as credible the First Applicant’s allegation that she had sought access to the password-protected Email Address, Ms Detkunram provided the password but when she could not access the Email Address she did not follow up Ms Detkunram. Because these issues were of the utmost importance to the First Applicant, I would have expected her to follow up these issues up with Ms Detkunram. I note that the Applicants provided no documents (such as communications with Ms Detkunram about requests for the password) in support of their allegations.
I find that the Tribunal afforded procedural fairness in accordance with its statutory obligations by its correspondence sent to the Email Address. The Applicants have not proved third-party fraud stultified the Tribunal’s processes. It is not possible to say whether the Applicants read the emails sent to the Email Address and made a positive decision not to attend the Tribunal hearing or whether the First Applicant simply failed to check the emails sent to her old email address and, for that reason, did not attend the Tribunal hearing and saw the correspondence after the event. On either scenario, no fraud stultified the Tribunal’s processes.
Because the Applicants have not discharged the heavy burden of proving that a third-party fraud stultified the Tribunal’s processes, I will refuse the application for an extension of time. I will hear from the parties as to costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 27 July 2023
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