BJK19 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 5
•9 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJK19 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 5
File number(s): SYG 805 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 9 January 2025 Catchwords: MIGRATION – judicial review – allegation that the application for the protection visa was invalid by virtue of fraud of the migration agent – unrepresented litigant – explanation by court of practice and procedure as to adjournment application and requirement to adduce evidence as to alleged fraud – applicant sought adjournment and filed evidence – no relevant fraud stultified the delegate’s decision under s 65(1) of the Migration Act 1958 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 47, 48, 49 and 65 Cases cited: Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398
Hamod v New South Wales [2011] NSWCA 375
Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464
Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525
Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188
Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 25 October 2024 and 26 November 2024 Place: Sydney Counsel for the Applicants: The first applicant appeared in person Solicitor for the First Respondent: Mr R Terrell of Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 805 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJK19
First Applicant
BJL19
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
9 JANUARY 2025
THE COURT ORDERS THAT:
1.The application is 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 Kaur-Bains
The applicants seek judicial review of the decision of the second respondent (Tribunal) dated 6 March 2019. The Tribunal affirmed the decision of the delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) (subclass 866) visa (visa).
The applicants’ sole ground for judicial review is that the protection visa application was invalid by virtue of the fraud of the migration agent who assisted the applicants to make the visa application. For the reasons set out at [11] to [32] of this judgment, I find no relevant fraud stultified the delegate’s decision under s 65(1) of the Migration Act 1958 (Cth) (Act) and I dismiss the application.
BACKGROUND
The first and second applicants are husband and wife, who are citizens of the People’s Republic of China. They first arrived in Australia on a Student (Subclass 572) visa, which was granted on 21 November 2012.
Protection Visa Claims
In an application for a protection visa dated 13 March 2015 (Court Book (CB) 12 to 36), claims were made that the first applicant feared a risk of serious harm if he returned to China for the following reasons:
(a)The applicant reported for corruption, a local department official, who won the village office election through bribery.
(b)As a result of the reporting, the applicant claimed to have sustained physical abuse in the form of beatings and consistent threats against his wife from the local department official.
The second applicant was a person included in the protection visa application as the wife of the first applicant (CB 37-50).
Delegate’s Decision
On 5 May 2016, the delegate refused to grant the first applicant a protection visa on the basis that the applicants failed to attend a scheduled hearing and on the evidence the delegate was not satisfied that the first applicant had a well-founded fear of persecution (CB 100 to 116).
Tribunal’s decision
The applicants attended the hearing before the Tribunal on 6 March 2019, to give evidence and present arguments (CB 130). The applicants were assisted by an interpreter.
The Tribunal summarised the first applicant’s claims for protection as set out in the visa application. The Tribunal then noted that at the hearing, the first applicant said that an agent had made the protection visa claims without his knowledge and they were untrue ([9] of the reasons).
The Tribunal then explained the requirements for a protection visa to the first applicant and asked if he believed he met the requirements. The first applicant stated that he did not. The Tribunal observed that in those circumstances, it would have to refuse the application, to which the first applicant responded that “he understood” ([10] of the reasons). The Tribunal also enquired with the second applicant as to whether she wanted to present any evidence, to which she responded that she did not ([11] of the reasons).
Accordingly, the Tribunal was not satisfied that there was any evidence before it which suggested the first applicant feared serious or significant harm in China or that there was a real chance of him experiencing serious or significant harm now or in the reasonably foreseeable future if he returned to his homeland. Therefore, the Tribunal found the first applicant did not satisfy the criterion set out in s 36(2)(a) or (aa) of the Act.
GROUNDS IN THE APPLICATION
In the application for judicial review, the applicants raise the following ground:
The decision is affected by jurisdictional error in that the entire application was a result of a migration agent's fraudulent contact (sic). The application was lodged without the applicant's knowledge. The applicant's immigration status was affected by the agent's fraudulent conduct.
In the supporting affidavit affirmed 1 April 2019, the first applicant said the following:
1.I came to Australia with my wife Lina Wang on a student visa. Before our visa expiry we engaged an agent in Campsie to apply for an extension of visa.
2.Without my knowledge, my agent lodged a protection visa for me. I subsequently engaged another agent to lodge a 457 application. The 457 application was refused due to the nomination refusal.
3.My family's immigration status was affected by the agent's fraudulent conduct. We could have applied for other visas if the agent hadn't lodged a protection visa for us and provided misleading information on our behalf.
4.I request that the Federal Circuit Court review my case so that I can regularize my immigration status.
The first applicant appeared at the hearing before me as a litigant in person, assisted by a Mandarin interpreter. I explained to the first applicant the role of the Court in undertaking judicial review. I ensured the first applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant filed on 2 April 2019 and the Minister’s written submissions.
RELEVANT LEGAL PRINCIPLES AS TO FRAUD OF MIGRATION AGENTS
The first applicant alleges that his migration agent made claims in a protection visa application which were not true, were made without the first applicant’s knowledge and were fraudulent.
Section 65(1) of the Act provides that “after considering a valid application for a visa”, the Minister if satisfied as to certain criteria is to grant a visa and if not so satisfied, is to refuse to grant the visa. Whether a purported visa application is a valid application for the purposes of s 65(1) is a “jurisdictional fact”, that this Court must determine for itself based on the evidence before it: Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398 (Gill) at [17]; Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 (Maharjan) at [44]. Section 47(3) of the Act provides that the Minister is not to consider an application that is not a valid application.
Fraudulent conduct of a migration agent can invalidate a visa application: Gill at [50]; Maharjan at [89] to [90]; [103] to [105]. While this Court cannot set aside the delegate’s decision, it can consider whether declaratory relief should issue in relation to the operation of s 48 of the Act: Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 at [49] to [52].
I accept the Minister’s submission that fraudulent conduct can invalidate the visa application from the moment it is lodged or at some later stage in the application process, but that this validity can only be assessed at the time the Minister makes a decision under s 65 of the Act. The Minister pointed to the decision of the majority in the Full Court in Maharjan at [108] to [111] as supporting the Minister’s submission, where the Full Court said:
[108] Finally, the Minister’s fourth submission conflates the concepts of a visa application form and a visa application. The former is a specific document that initiates the visa application process contemplated by s 45. The latter comprehends not only the form filed, but supporting documents, statements and any other material (including interviews) which must be “considered” by the Minister (s 47) until a decision is made under s 65.
[109]Authority for this proposition can be found in the Full Court decision of Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456; 103 FCR 486 at [76] where the Full Court said:
... the legislation uses the term ‘application’ in two senses. Sometimes, as in s 54, the word refers to the application form itself. On other occasions, as in ss 45 and 46, it refers to the process of applying for a visa which includes, but is not limited to, the completion of a prescribed application form.
(Emphasis as in original)
[110]Further, s 54(2)(c) of the Act, read with s 55, expressly contemplates that a person may give “additional relevant information” to the Minister or her or his delegates at any time prior to the making of a decision. The terms of s 54(2) provide that such information is to be treated as information “in” an application. This is, as we have noted at [17] above, how the Minister’s delegate approached the matter.
[111]There is no basis for the suggestion that the only fraudulent conduct which can affect the validity of a visa application is fraud perpetrated on a visa applicant in the application form itself, or in documents which as a matter of timing rather than substance happen to be lodged with the visa application form, rather than a day or a week later.
I accept the Minister’s submission that the ultimate assessment of validity must be at the time the decision is made under s 65 of the Act. Further, to establish third party fraud an applicant must prove that:
(a)There was fraud, which in some way stultified the decision under s 65(1). That is, the applicant must show how the alleged fraud affected the processes by which the application for a protection visa came to be considered by the Minister’s delegate or Tribunal and how the duties to consider only valid visa applications and not invalid visa applications in ss 47(1) and (2), 49 and 65(1) of the Act were stultified. It is noted that in order for the fraud to be operative “some aspect of the operation of the legislative scheme must be affected by actual fraud or dishonesty, not merely negligence: Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [15]; and
(b)The applicants were not complicit or recklessly indifferent to the alleged fraud, which could occur at any point during the application for the visa: Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464 (Kaur) at [56] to [57].
The concept of indifference has been considered in a number of cases, including Gill and Kaur. In Gill, the Full Court (Kenny, Griffiths and Mortimer JJ) said at [42]:
Taking into account the detailed regulatory scheme established for migration agents under the Migration Act and the Migration Agents Regulations, including the Code of Conduct, in our opinion, it is not apt or correct to apply the description of “indifference” to a person who, having retained an agent to apply for a visa and having paid the appropriate fees to that agent, leaves the migration agent to perform his or her work. It is certainly not apt to describe a person in these circumstances as indifferent to the subsequent submission of a fraudulent visa application by the migration agent without further relevant findings concerning the nature and scope of that indifference.
In Kaur, the Full Court found that the requisite state of mind for “reckless indifference” is close to intention or wilful blindness as to the truth of what is being said or done, and that other states of mind such as helplessness, fear of authority, naivety, ignorance, want of due care and dependence or reliance need to be distinguished from reckless indifference: Kaur [136] to [140]
In Kaur at [57(d)], the Full Court said “A finding of fraud should specify “what was said that was fraudulent, how it was fraudulent, and how it was acted upon” (in the words of French J in SZFDE in the Full Court, quoted with approval by the High Court at [41]).”
FIRST HEARING BEFORE ME ON 25 OCTOBER 2024
Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the first applicant that he needed to provide me with evidence as to the circumstances surrounding the engagement of the migration agent, what the agent was told, what advice or documents the agent provided to the applicant and the involvement of the applicants in the process. I explained to the first applicant that on providing that evidence, then the Minister would be given time to investigate the matters raised by the applicants and then at the resumed hearing, could cross-examine the applicants on their evidence. I informed the first applicant as to the practice and procedure available in the Court for the granting of an adjournment of the hearing to enable the first applicant to file the type of evidence I had identified. The first applicant was told that if he did not make an application for an adjournment, and wished to proceed with the hearing, I would have no evidence on which I could find the relevant fraud.
The Minister foreshadowed that he would consent to any adjournment application to enable the first applicant to file the requisite evidence. The Minister also noted that he was amenable to the first applicant being sworn in to give the requisite evidence at the hearing before me.
In balancing questions of fairness to both parties, I considered the fairest approach was for the first applicant to seek an adjournment of the hearing, which would be granted and to file evidence. This would give the Minister a fair opportunity to investigate the evidence and prepare any cross-examination. I did not consider it fair for the Minister to have to cross-examine the first applicant without due notice of the evidence the first applicant intended to adduce.
The first applicant declined to seek an adjournment of the hearing and said he wished to proceed. I again reiterated to the first applicant that if he declined to seek an adjournment, then in the absence of evidence as to fraud, I would have to dismiss the application. The first applicant said he did not want to seek the adjournment. At the conclusion of the hearing on 25 October 2024 I reserved my judgment.
LISTING FOR JUDGMENT ON 1 NOVEMBER 2024
The matter was listed for judgment on 1 November 2024. On that occasion, prior to me making any orders, the first applicant said that he did in fact want to put on further evidence as to the alleged fraud of his former migration agent. The Minister did not oppose the first applicant’s application. As I had reserved judgment, I made orders granting leave to the applicants to reopen their case and I made timetabling orders regarding the filing of further evidence and submissions by both parties.
On 18 November 2024, the first and second applicants both filed affidavits in relation to the alleged fraudulent conduct of their previous agent. On 22 November 2024, the Minister filed further written submissions in response. The matter resumed part heard on 26 November 2024, at which time the first applicant relied on the further affidavits filed and the Minister cross-examined only the first applicant.
CONSIDERATION
Findings as to relevant facts
The first applicant and his wife gave consistent evidence, without any suggestion of collusion, which was not challenged by the Minister, as to the circumstances surrounding the completion of the protection visa application form as follows:
(a)The first applicant was granted a student visa and arrived in Australia on 6 December 2012. The second applicant arrived in Australia on 27 April 2013, on a dependent student visa.
(b)The first applicant’s student visa was due to expire on 15 March 2015 and he wanted to extend his student visa in order to extend his stay in Australia. The first applicant saw an advertisement for a visa agency called “Northern Family Agency”, which had offices located at Campsie. The first applicant learnt from a friend that the Northern Family visa agency had successfully assisted a grocery shop owner to get a permanent resident visa. The first applicant said that the Northern Family Agency had a good marketing campaign and reputation in Campsie.
(c)The first applicant looked up the contact numbers for the Northern Family visa agency and phoned the number. A person called Charlie Li who said he was a migration agent answered the phone. The first applicant spoke to Charlie Li in Mandarin and told him that his student visa was about to expire and he wanted to extend his student visa. Mr Li said he could assist and required the first applicant to come to his office and fill out an information collection form. The first applicant said his wife would attend to pick up the forms as she was a dependent.
(d)The first applicant’s wife said that she attended the offices of Mr Li to pick up the forms. At that meeting, she was concerned she was unable to explain the case properly and called the first applicant to speak to Mr Li and put him on speaker. The first applicant’s wife said that she heard her husband tell Mr Li that he wished to extend his visa and wait for an employer sponsorship visa in a couple of months. The first applicant’s wife said that she heard Mr Li say that he would look after the visa. The first applicant’s wife said that Mr Li would charge $2,500 to act in relation to the visa.
(e)Further, the first applicant’s wife annexed to her affidavit a document she was required to complete headed “Northern Family 866 Visa Personal Information Collection Form 2015 Edition” typed in Mandarin. The first applicant gave evidence that both he and his wife completed the form in Mandarin. It is noted that the said form except for using “866 visa”, did not otherwise indicate that the information was being collected for a protection visa application. The first applicant and his wife gave evidence they noted the words 866, but were unaware this number referred to a visa subclass for protection visas.
(f)The first applicant gave evidence that on 6 April 2015, the first applicant was told to provide biometrics to the department and that this was standard procedure in visa applications. The first applicant said that he followed up Charlie Li on a few occasions concerning the visa extension application and Mr Li confirmed the visa had been lodged and he was awaiting a visa grant.
(g)The first applicant said in or around mid 2015 his employer wanted to sponsor him under the employer’s sponsor visa. Around mid 2015, the first applicant and his wife met another migration agent by the name of Mr Lanshan Gao. Mr Gao represented to the applicants that his office was experienced in employer sponsored visas, he had numerous successful cases and had obtained such visas in a number of cases. Mr Gao asked about the first applicant’s current visa condition, to which the first applicant said to Mr Gao that the Northern Family Agency was assisting him in relation to the student visa extension.
(h)The first applicant gave evidence that after this conversation, he then had a subsequent conversation with Mr Gao, where Mr Gao told him that he had checked what visa application had been submitted by Northern Family Agency and it was a protection visa application. Therefore, Mr Gao said he could not lodge an employer sponsor visa. The first applicant was upset and angry upon hearing this and called Mr Li from Northern Family Agency on numerous occasions in that week questioning why he had lodged a protection visa application for the applicants. The first applicant said that Mr Li said to him that the first applicant would be unable to satisfy the requirement for the employer sponsored visa and that the protection visa was the best application for him. The first applicant was very angry and this was the last conversation he had with Mr Li, which was sometime before September 2015.
(i)The first applicant said that in September 2015, he appointed Mr Gao as his migration agent (TP 9.40). The first applicant said that Mr Gao mentioned that the protection visa application could be withdrawn (TP 9.29-37). The first applicant said he gave instructions to Mr Gao to continue to act for him in relation to the protection visa application and the employer sponsored visa (TP 9.44 to TP 10.04).
The Court book contained an email from Mr Gao to the Department of Immigration and Border Protection dated 22 September 2015, stating that the applicants had authorised Mr Gao to act on their behalf in relation to an application for a protection visa and enclosed a form 956, which authorised Mr Gao to act for the applicants in relation to the protection visa. The first applicant’s wife confirmed that the signature on that form was her signature ([34] of the first applicant’s wife’s affidavit sworn on 17 November 2024 and CB 84 to 87). The first applicant confirmed that he gave Mr Gao instructions to be appointed his migration agent (TP 9.44 to TP 10.4).
At [41] of his affidavit affirmed 17 November 2024, the first applicant also gave evidence that on 20 April 2016, he received an email from OPNSW Interviews and he did not think he needed to attend as the protection visa application was unauthorised. The first applicant was cross-examined as to this and referred to the letter from OPNSW dated 20 April 2016 which appears at CB 93. The said letter at CB 93 is from OPNSW to the email address of Mr Gao and informs him of a request for an interview for the first applicant in relation to his protection visa application. In cross-examination the first applicant accepted that the email requesting the interview for the protection visa was sent to the first applicant by Mr Gao (TP 10.45 to TP 11.04). In cross-examination, the first applicant acknowledged that he was aware that on 5 May 2016 his protection visa application was refused (TP 11.23-26).
The Court Book at CB 117 to 118 contains a copy of the application for review to the Tribunal of the delegate’s refusal decision in relation to the protection visa. The application for review notes the representative details as Mr Gao. The first applicant in cross-examination accepted that Mr Gao told the first applicant that he would apply for review of the delegate’s decision to the Tribunal (TP 15.20-27).
In light of the above evidence which I accept as outlined at [28(a) to (g)] of this judgment, I find that at the time the visa application form was completed and lodged with the Department of Immigration and Border Protection on 13 March 2015, neither applicants were aware their migration agent Mr Li had lodged protection visas on their behalf. Rather, the applicants thought Mr Li had lodged applications for an extension of a student visa. However, given the evidence of the first applicant at paragraphs [28(h)] and [28(i)] of this judgment and the contemporaneous documents referred to at paragraphs [29] to [31] of this judgment, I find that prior to the delegate considering and making a decision on the application on 5 May 2016, the first applicant and his wife were aware that Mr Li had in fact lodged a protection visa application and the first applicant consciously decided to retain the new migration agent, Mr Gao to continue to act on that protection visa application. Accordingly, I find that there was no relevant fraud that stultified the operation of the legislative scheme and s 65(1) of the Act, for the delegate to consider a valid application: Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525 at [38]. This is because there was in fact no relevant fraud at the time the delegate determined the protection visa application because as I have found, the first applicant and his wife became aware of Mr Li’s fraud prior to the delegate determining the matter and decided to retain Mr Gao to continue to act on the visa application for a protection visa, which was subsequently determined by the delegate.
CONCLUSION
Accordingly, given my findings that there was no fraud that stultified the decision under s 65(1) the application is dismissed.
Costs
I will hear the parties on costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 9 January 2025
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