BDE23 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 372
•17 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDE23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 372
File number: PEG 68 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 17 March 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the conduct of the applicant’s migration agent or a third party amounted to a fraud on the Tribunal – no evidence before the Court to establish fraud – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Evidence Act 1995 (Cth), s 140
Migration Act 1958 (Cth), ss 5H, 36, 98 & 476
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40
Division: Division 2 General Federal Law Number of paragraphs: 102 Date of hearing: 23 October 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 68 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDE23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
17 MARCH 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
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 KENDALL:
BACKGROUND
Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 30 March 2023 and, as such, predates those amendments.
Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time the applicant filed his application in this Court (on 1 May 2023), the Tribunal was listed as the second respondent. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything that the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court has made an order (at the second hearing in this matter) substituting the ART as the second respondent in this proceeding.
Applicant’s migration history
The applicant is a citizen of Malaysia (Court Book (“CB”) 30 & 54-55). He arrived in Australia in February 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 62).
On 4 May 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 13-53 & 62). In his visa application, the applicant answered “no” when asked if he had “receive[d] any assistance in completing [the] form” and asked that “all written communications about [his] application” be sent to him directly (CB 26). The applicant also agreed to the then Department of Immigration and Border Protection (the “Department”) communicating with him by email and provided the Department with an email address (the “nominated email address”) so that it could do so (CB 33).
In his visa application, the applicant claimed to fear harm on the basis of “political and economic issues” and stated that, if he were to return to Malaysia, he would not be able to support himself or his family (CB 48-50).
On 18 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 62-70). The delegate was not satisfied that the applicant was a refugee (as defined by s 5H(1) of the Act) or that the applicant was a person in respect of whom Australia had protection obligations (CB 64-65).
On 21 August 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 71-72). In that review application, the applicant indicated that all correspondence should be directed to him as the “review applicant” and provided the Tribunal with the nominated email address so that it could do so (CB 72).
On 4 April 2022, the applicant provided the Tribunal with a completed “Change of Contact Details” form (CB 77-78). That form provided an updated residential address for the applicant and included a mobile phone number. The applicant (again) included the nominated email address in that form (CB 77).
On 13 April 2022, the Tribunal wrote to the applicant (by letter sent to the applicant’s nominated email address) inviting him to provide information by completing an attached document titled “Applicant information form (s.424(2) response)” (the “questionnaire”) (CB 79-81).
On 18 April 2022, the applicant returned the completed questionnaire to the Tribunal by email (sent from his nominated email address) (CB 82-88). In that completed questionnaire, the applicant indicated that he “consent[ed] to the Tribunal deciding the review without a hearing” (CB 83). He also stated that he wanted to “[add his] daughter” to his application (indicating that she was born in Australia in 2018) (CB 86).
On 28 April 2022, the Tribunal again wrote to the applicant (by letter sent to the applicant’s nominated email address) confirming that it had received the completed questionnaire and acknowledging that the applicant “wanted the Tribunal to proceed to make a decision on [his] review without [him] appearing to give evidence and present arguments” at a hearing (CB 89-91). The Tribunal also notified the applicant that, if he wanted “to make any further submissions to the Tribunal”, he could do so in writing by 12 May 2022 (CB 92).
That same day (on 28 April 2022), the applicant provided the Tribunal with his mobile number (by email sent to the Tribunal from the applicant’s nominated email address) (CB 93).
On 27 March 2023, the Tribunal wrote to the applicant (by email sent to the applicant’s nominated email address) and advised that, because his “child was born after the original refusal of [his visa] and after the lodgement of [his] review application”, the Tribunal was unable to add his daughter to his application (CB 95).
On 30 March 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 99-112).
The applicant was notified of that decision by letter (sent by email to the applicant’s nominated email address) on 30 March 2023 (CB 113-114).
On 1 May 2023, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-6). The applicant included the nominated email address in that application (CB 2). That application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 1 May 2023) contains three “grounds of review”, as follows (without alteration) (CB 4):
1.My application was refused for not meeting the criteria of subsection 36(2) of the Migration Act 1958.
2.False protection claims were included in my application without my consent by an individual who was paid for their services. They abandoned my application when I couldn’t pay the remaining balance due to financial difficulties.
3.I request the federal circuit court to review my court proceedings, but I don’t have any supporting documents to provide at this time. I’m actively seeking legal aid to assist me with this matter.
The applicant also filed an affidavit in support of that judicial review application (affirmed by the applicant on 30 April 2023 and filed on 1 May 2023) (CB 8-12). That affidavit annexed copies of the delegate and Tribunal decisions (and associated notification letters).
On 22 August 2023, procedural orders were made by Registrar Downing of this Court, giving the applicant an opportunity to file an amended application, written submissions and any additional evidence. Unfortunately, no additional materials were filed by or on behalf of the applicant.
Written submissions were filed on behalf of the Minister on 15 February 2024 and an affidavit of service of Ms Margarita Woollett (affirmed on 20 February 2024 (the “Woollett affidavit”)) was filed on behalf of the Minister on 20 February 2024.
First hearing before this Court
The applicant first appeared before this Court on 19 August 2024. He did so without legal representation. The applicant was assisted at that hearing by an interpreter in the Mandarin language. Ms Centaine Mumford (“Ms Mumford”) appeared at that hearing on behalf of the Minister.
The Court noted that the applicant’s grounds of review (outlined above) articulated what appeared to be an allegation of fraud by an agent.
In light of the decision made by the Full Court of the Federal Court of Australia (the “Full Court”) in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 (“SZRUR”) (which will be discussed further below), the Court considered it beneficial to adjourn the matter to allow the applicant time to provide additional evidence in relation to what appeared to be alleged fraudulent conduct on the part of his migration agent or a third party.
The Court explained to the applicant that, where an unrepresented applicant raises a claim about “fraud”, the decision of SZRUR requires that the applicant be given an opportunity to file any evidence (by way of affidavit annexing evidence supporting those claims) and be put on notice that, in order for the Court to properly consider any allegations of fraud, he might be required to give evidence (from the witness box) about those allegations and be available for cross-examination in that regard.
The Court explained to the applicant that he needed to provide (in writing by way of affidavit) evidence about “what happened with [his] agent” and what he thinks his agent “did” that disadvantaged him. He was also advised that he needed to give the Court details of any concerns he might otherwise have in relation to his agent’s conduct (including any information about what appeared to be an allegation that the agent told him to “do something” or say something which, arguably, was not true).
The Court also explained to the applicant that if he wanted someone to appear at the hearing to help him with that evidence (for example, if someone overheard a conversation with his agent and he wanted that evidence before the Court), then he needed to let the Court and the Minister know who that person is and how they might be contacted. Similarly, it was explained to the applicant that he needed to identify his migration agent (if he could) or any other person who assisted him or was involved with the alleged fraud. The Court further explained that, once he had provided that information to the Court (by way of affidavit or written submissions), the Minister’s representatives would then decide if they wanted to ask any questions of the applicant or any other persons he identified as having knowledge about alleged fraudulent conduct.
On the basis of that discussion with the applicant (as outlined above), the Court made the following orders:
1. The hearing be adjourned to 23 October 2024 at 11.30am.
2.The applicant have leave to file further evidence, including affidavit evidence, and written submissions in relation to the alleged fraudulent conduct of his migration agent or any other person by 16 September 2024.
3.The first respondent have leave to file any evidence in reply and any further written submissions by 14 October 2024.
4. The parties have leave to apply to vary the contents of these orders.
As set out in those orders, the matter was adjourned to 23 October 2024.
Unfortunately, no evidence was filed by or on behalf of the applicant in accordance with the orders made by this Court (on 19 August 2024 and outlined above). This is regrettable.
Further written submissions were filed on behalf of the Minister on 11 October 2024.
On 21 October 2024, Ms Mumford sent an email to the Court. Attached to that email was correspondence from Ms Mumford to the applicant (sent by way of email on 11 October 2024) serving a copy of the Minister’s further written submissions on the applicant.
Second hearing before this Court
The applicant appeared again before this Court (at the second hearing in this matter) on 23 October 2024. He was again assisted by a Mandarin interpreter. Ms Madisen Scott (“Ms Scott”) appeared on behalf of the Minister.
The Court asked the applicant if he had received copies of the Court Book and both sets of the Minister’s written submissions. The applicant confirmed that he had received the Court Book but seemed to suggest that he had not received the Minister’s written submissions. Ms Scott confirmed that both sets of written submissions had been served on the applicant and relied on the Woollett affidavit (in relation to proof of service of the first set of written submissions) and the email correspondence from Ms Mumford to the Court and its attachments (in relation to proof of service of the second set of written submissions). The applicant then confirmed that he had received these emails (with the Minister’s submissions attached).
Ms Scott sought to tender the correspondence from Ms Mumford. The Court had the Court Book tendered and referenced as Exhibit 1 and had correspondence from Ms Mumford to the Court (with attachments) tendered and referenced as Exhibit 2. The Court also had both the applicant’s affidavit and the Woollett affidavit taken as read and in evidence.
Based on the information contained in Exhibit 2 and the Woollett affidavit, the Court was satisfied that the applicant had been properly served with copies of both sets of the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 4 May 2023 (the affidavit being taken as read and in evidence at the second hearing of this matter, as outlined above), a Court Book numbering 169 pages (marked as Exhibit 1 at the hearing of this matter, as detailed above), written submissions filed on behalf of the Minister on 15 February 2024, the Woollett affidavit (also taken as read and in evidence at the second hearing of this matter, as outlined above), further written submissions filed on behalf of the Minister on 11 October 2024 and correspondence from Ms Mumford to the Court (marked as Exhibit 2 at the second hearing of this matter, as detailed above).
CONSIDERATION
As outlined above, the core concern raised by the applicant in his grounds of review (included in his application for judicial review filed in this Court on 1 May 2023) alleges fraudulent conduct on the part of his agent.
Noting that the applicant was not represented, however, and noting the remarks of the Federal Court of Australia in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant a further opportunity to outline any other concerns he might have in relation to the Tribunal’s decision.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he seeks, even if the Court disagrees with the Tribunal’s ultimate findings. Instead, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant reiterated the concerns raised in his grounds of review – ie, he had explained to the Tribunal that his protection visa claims were false and that he wanted to “submit another application”.
The applicant’s comments centre on alleged fraudulent conduct by his agent or a third party.
This Court would ordinarily summarise the Tribunal’s decision in detail. However, given that the sole concern raised by the applicant (and the sole focus at both hearings before this Court) related to the issue of fraud, it is unnecessary to do so in this judgment. This is particularly so in circumstances where the Court has itself reviewed the Tribunal’s decision for jurisdictional error and no error has been identified.
Allegations of fraudulent conduct
What is fraud?
It is well accepted that fraud “can come in various guises” and is “infinite in variety”. As such, the Courts “have always declined to define it … reserving to themselves the liberty to deal with it under whatever form it may present itself”: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”) at [8].
Having said that, there are two different types of fraud cases which often arise before the Courts. The first relates to matters in which there has been a fraud “on” the Tribunal (or decision maker). The second relates to a situation where there has been a fraud “in” the visa application process.
In matters where an applicant alleges that there has been a fraud in the visa application process, applicants usually seek declaratory relief or raise concerns about the validity of their visa application as a result of the fraud.
That is not the case in this matter.
Here, the applicant claims that “false protection claims were included in [his visa] application without his consent by an individual who was paid for their services”.
Once fraud has been proven, the consequences are significant. In Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (“Lazarus”), Denning LJ (as Lord Denning then was) stated (emphasis added):
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 Blantern; as to judgments, Duchess of Kingston’s case; and as to contracts, Master v Miller.
In SZFDE, the Full Court of the Federal Court (the “Full Court”) explained that fraud in a public law context could be “set apart” from fraud in relation to civil suits. The Court explained as follows:
22.… It is that often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted. … In the present case, the only remedy that would be of real utility to the appellants is an order that provides them with the opportunity to press their claims to a protection visa in a fair hearing conducted according to law.
Fraud of the sort identified in SZFDE was of concern because it “stultified” the operation of the relevant legislative scheme, resulting in the appellants being denied procedural fairness. The Full Court in SZFDE noted that, as a result of the fraud by the agent in that matter, the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review” and the conduct “merited” the “description of the practice of fraud “on” the Tribunal”: SZFDE at [51].
It is also now well established that fraud is a serious allegation which must be “distinctly pleaded and proved”: SZFDE at [15] (citing Lazarus at 712‑713).
Further, the alleged fraudulent action must be proven to the requisite standard as set out in s 140 of the Evidence Act 1995 (Cth) (the “Evidence Act”), which relevantly provides as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Identifying the type of acts that will constitute a fraud “on” the Tribunal is not always an easy task. As explained by the Full Court in Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 (“SZLIX”), a “failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal”: SZLIX at [33].
As correctly identified by the Minister (at [14] in supplementary written submissions filed in this Court on 11 October 2024), the Full Court has identified in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 at [74] that, in order for this Court to make a finding of fraud, it must specify (and the applicant must at least identify) the following matters:
(a)“what” was fraudulent (for example, advice from the agent, information that had been provided) (the “alleged fraudulent action”);
(b)“how” it was fraudulent (for example, because no consent had been given for the agent to do what they did, because the agent did it for an improper purpose and/or because it was done when it was known to be incorrect/untruthful); and
(c)how it was acted upon (for example, what the alleged fraudulent action led the Tribunal to do).
If an alleged fraud can be proven, an applicant must also satisfy this Court that they were “neither complicit in the fraud nor ‘indifferent’ to it”: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 (“Maharjan”) at [102]. As was observed in SZRUR by then Chief Justice Allsop, that is a heavy burden: Maharjan at [102] (citing SZRUR at [51]).
When an allegation of fraud is raised before this Court, the High Court has stressed that, when hearing an application for judicial review, this Court may “take account of any relevant material placed before it”: SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40 (citing Craig at 175-176).
When an unrepresented applicant raises an allegation of fraud “special care” must be given to ensure that the applicant is afforded procedural fairness.
As correctly summarised by the Minister (at [9] in supplementary written submissions filed in this Court on 11 October 2024), SZRUR was an appeal from a decision of this Court in which the issue for consideration by the Full Court was whether this Court had denied the appellant procedural fairness. The Full Court found that it had and that the denial of procedural fairness in that case arose for the following reasons:
(a)the appellant had raised (in their grounds of review) a claim that his migration agent did not inform him of the date of the Tribunal hearing and, as a result, the appellant was denied “natural justice” by the Tribunal having made a decision without the appellant appearing. The appellant provided no affidavit evidence to support that claim;
(b)when the matter came before the Court, the appellant (who was unrepresented and assisted by an interpreter) told the Court, from the bar table, that he had expected to hear from his migration agent about the Tribunal hearing date, but he did not. Further, the signature on the form responding to the hearing invitation (before the Tribunal) was not his and he gave no authority to the migration agent to sign anything on his behalf;
(c)during the hearing, it had not been explained to the appellant that if he wanted the Court to rely on his statements made from the bar table (as outlined above), it was necessary for him to go into the witness box and make those statements after being duly sworn or affirmed. The appellant also did not have it explained to him what issues he was required to address in relation to an allegation of fraud;
(d)because the matters (set out at (c) above) were not explained to the appellant, he had been denied procedural fairness.
At the second hearing of this matter, the Court confirmed that it had discussed the applicant’s concerns about the alleged fraudulent action of his agent with him at the first hearing of this matter and noted that, whilst the Court had given the applicant an opportunity to provide evidence in that regard (and had explained to him the importance of providing that evidence to the Court at the first hearing), no such evidence had been forthcoming. On that basis, the Court asked the applicant if he still wished to press his concerns about the conduct of his migration agent or a third party.
The applicant told the Court that while he had “tried”, he could “no longer find those people” involved because seven or eight years had now passed.
The Court explained to the applicant that, in the circumstances, it would allow the applicant to explain to the Court what happened (orally), but, in order to do so, the applicant would need to take an oath or an affirmation. The Court explained that, if the applicant was not prepared to do so, the Court could not attach much weight to the evidence that he gave. The Court also explained to the applicant that if he chose to give evidence, Ms Scott (who was appearing on behalf of the Minister) might have some questions for him – questions that would allow the Minister to better understand what had happened. The Court explained that this was what the Court refers to as cross-examination.
The applicant indicated that he wished to give evidence and took an affirmation so that he could do so (again, with the assistance of a Mandarin interpreter).
Applicant’s oral evidence
The Court noted that, in his application to the Court for judicial review, the applicant stated as follows (in “ground two” as outlined above):
False protection claims were included in my application without my consent…
The Court asked the applicant to explain what he meant by that.
The applicant responded as follows (extracted from a transcript of the second hearing before this Court (the “transcript”) at p 6, without alteration):
When they submit my application, the claims was not really my true claim. They claim that I’ve got political ground, but that was not true. I came, it was because of my business.
The Court asked the applicant if there was anything else he wished to say about the conduct of the agent and the applicant responded as follows (extracted from the transcript at p 6, without alteration):
Not any more, but I just want to say that they have submitted the false claim for me. Now I couldn’t find them.
Cross-examination of the applicant
The Court explained to the applicant that Ms Scott would ask him some questions (with the assistance of the interpreter). The Court also explained that he needed to listen carefully to what Ms Scott was saying and respond to her questions to the best of his abilities (through the interpreter).
Ms Scott began by taking the applicant to various pages of the Court Book which contained what appeared to be the applicant’s signature (including, in particular, the application for judicial review filed by the applicant in this Court at CB 6, Part B of the applicant’s visa application at CB 27 and Part C of the applicant’s visa application at CB 53).
The applicant confirmed that he had signed those documents but said that “[his] agent told [him], ‘just sign’” and that he did not read the documents because he “did not understand English”. When asked if he had asked his agent any questions, the applicant said that he had not done so. Further, when asked if he understood that he was required to tell the truth when signing his visa application, the applicant said “what should I say? Because he asked me to sign, then I sign”.
Ms Scott also asked the applicant about answering “no” to question six in Part B of the visa application (which asked if the applicant had “receive[d] assistance in completing [the] form”). The applicant explained that he is “illiterate” and “does not know English” and further stated that he “didn’t fill it in”.
The applicant was not able to provide any information about the person or agent who he claimed had assisted him with completing his visa application, except to say that his name was “A” (first name provided but not reproduced in full in this decision) and that he was “a male”.
The applicant was asked if he had attempted to contact that person (referred to as “A”) when the Court had asked him to present evidence before it. The applicant said that he did but was not able to find him.
Ms Scott then proceeded to ask the applicant about his attempts to contact that third party or agent, as follows (the transcript at pp 8-9):
Ms Scott: How did you try to contact him? Applicant: Many, long, long time ago through a friend, he introduced this agent to me, and then I contacted him. Ms Scott: But how did you try to contact him for these proceedings? Applicant: He took me to see him. Ms Scott: Yes, but in terms of these proceedings, has he tried to contact his agent? Applicant: I went to see my, that friend of me, of mine, and that friend said, “He’s no longer here.” He said, “He has gone, left.” Ms Scott: … When did his agent stop talking to him? Applicant: Several years after I submitted the application. Several years after I submitted the application, and then I tried to contact him, I couldn’t find him. Ms Scott: Was it before or after he applied to the Tribunal? Applicant: The Migration Tribunal? Ms Scott: Yes. Applicant: Don’t remember. Several years ago.
Ms Scott also asked the applicant about the completed questionnaire (CB 83-88) which he returned to the Tribunal by email (sent from the applicant’s nominated email address on 18 April 2022). The applicant confirmed that his signature appeared on that document (CB 88) but, when asked if he remembered completing the form, he said that he did not remember and that it was “too long ago”. When asked if he answered “no” to the question of whether he wished to “add or update” his protection claims (question 4 of the questionnaire at CB 84), the applicant said that he “did not know” because he “does not know English”.
At the conclusion of Ms Scott’s cross-examination, the Court asked the applicant if there were any other concerns he wished to raise or anything further that he wanted to say to the Court. The applicant said that he had “asked the Tribunal, because the claims in [his] protection visa [were] false, … if [he] could find another agent to submit another application”.
Whether the alleged fraudulent action has been proven
As outlined above, the applicant claims to have paid a third party or “agent” to lodge his visa application and that agent included false protection claims in that visa application without his consent. The applicant also claims that the agent then stopped acting for him when he was not able to pay him.
Before this Court, the applicant gave oral evidence that the agent was a male named “A” and that he had attempted to locate him but was unable to do so. Unfortunately, the applicant did not provide any documentary evidence to the Court in that regard, despite being given the opportunity to do so.
The evidence contained in the Court Book indicates that the applicant:
(a)answered “no” to the question of whether he “receive[d] assistance in completing [the visa application] form” (question six in Part B of the visa application at CB 26);
(b)requested that “[a]ll written communication about [his visa] application … be sent to” him directly, not to an authorised recipient or migration agent (question ten in Part B of the visa application at CB 26);
(c)confirmed to the Department that he had an email address and provided the nominated email address (question 40 in Part C of the visa application at CB 33);
(d)agreed to the Department communicating with him by email and again provided the nominated email address to enable the Department to do so (question 41 in Part C of the visa application at CB 33);
(e)answered “no” to the question of whether he “receive[d] assistance from an interpreter or anyone else to complete [his] application” (question 101 in Part C of the visa application at CB 53);
(f)did not include details of a representative or authorised recipient in his review application filed with the Tribunal and asked that all correspondence be sent to him (as the review applicant) directly (CB 72); and
(g)used the same email address (being the nominated email address) in his visa application (CB 33), his Tribunal review application (CB 72) and the judicial review application filed in this Court (CB 2).
As can be seen from the information outlined above, there is simply no evidence before this Court to suggest that there was any agent or third party appointed by the applicant to assist him with his visa application or the Tribunal review.
Even if this Court were to accept that the applicant had been assisted by an agent (despite the lack of evidence to suggest that any such agent existed or provided any assistance to the applicant) and that that agent was not able to be located, the Court would expect that there would be some evidence that to demonstrates some interaction between the applicant and his purported agent. There might, for example, be evidence of some initial payment to the agent in the form of bank statements or receipts (noting the applicant’s claim that he had paid the agent to prepare his visa application), some correspondence between the applicant and that agent about his visa application or the process more generally and/or previous contact details or other information about the agent (including a surname and/or business name and any business or agency through which the agent conducted business). There might also be evidence available from the applicant’s “friend” (who the applicant claims introduced him to the agent).
Unfortunately, the applicant did not provide any such evidence. Nor did he provide any details about his interaction with the agent, where his offices were, where the applicant met the agent to discuss the applicant’s visa application and migration options, how much contact he had with that agent or how much the agent charged for the services provided. Unfortunately, the applicant was also not able to supply a surname or contact number for the agent – simply referring to him as “A” and confirming that he was “a male”.
While the Court has considerable sympathy for all applicants who appear before this Court without legal representation and with limited or no English speaking skills, there is only so much that the Court can do to assist applicants who often struggle with a sometimes intimidating Court hearing and court processes and procedures generally.
This Court has done what it could do to assist the applicant, but the Court can only make its decision based on the materials before it.
Unfortunately, the Court is not satisfied, based on the limited oral evidence (and noting the distinct lack of documentary evidence) before it, that the applicant has demonstrated that the alleged fraudulent action took place. The applicant’s evidence was limited and vague. He offered almost no information about what happened, when it happened and why and responded to questions asked of him in a way that offered no evidence of a sort that might assist him. Indeed, without more, there is simply no evidence that the applicant was represented by any agent or assisted by any third party at any point (either before the Department or the Tribunal).
The applicant has not discharged the burden of proof required in cases of this sort.
In circumstances where the Court has determined that the alleged fraudulent action has not been proven, s 98 of the Act is applicable. That section relevantly provides that an applicant “who does not fill in his or her application form … is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf”: s 98 of the Act. That is, even if a third party had completed the applicant’s visa application form, in the absence of any proven fraud, the applicant is taken to have completed that document himself.
As outlined above, to establish fraud, the applicant would also need to explain how the alleged fraudulent action prevented the Tribunal from complying with its statutory obligations in conducting its review. The applicant has not done so.
The Court notes that the Tribunal invited the applicant to provide information to it by completing the questionnaire (CB 79-81). Question four in that questionnaire provided the applicant with an opportunity to add to or update his protection claims (indicating that the applicant could provide brief details in the questionnaire and also attach submissions about his claims) (CB 84).
The complete question and the applicant’s response (extracted from the questionnaire) are reproduced below.
Despite the applicant’s evidence to this Court that he had asked the Tribunal to submit another application or additional claims (for which there is no evidence), the applicant’s response (by way of the completed questionnaire) indicated that he “[did] not currently have claims for protection” (CB 84).
Question two of the questionnaire also gave the applicant the opportunity to indicate whether or not he wished to attend a hearing or if he consented to the Tribunal deciding the review without a hearing. The applicant’s response is reproduced below.
As can be seen (above), the applicant consented to the Tribunal deciding the review without a hearing (CB 83).
The Tribunal gave the applicant a final opportunity to provide “further submissions” to the Tribunal in support of his review application by way of a letter to him dated 28 April 2022 (sent to the applicant’s nominated email address) (CB 89-91).
Despite being given numerous opportunities by the Tribunal to provide further information or evidence or to update his protection claims, the applicant did not avail himself of those opportunities. The applicant provided no additional information to the Tribunal and consented to the Tribunal making a decision without hearing from the applicant.
The Court is satisfied that no fraudulent conduct occurred that prevented the Tribunal from properly conducting its review.
No jurisdictional error arises in relation to the alleged fraud.
CONCLUSION
The application for judicial review (filed by the applicant on 1 May 2023) and the applicant’s oral evidence before this Court have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 17 March 2025
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