BMO17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 304
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BMO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 304
File number: MLG 806 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 26 April 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant protection visas – whether conduct of applicants’ migration agent amounted to fraud that stultified or disabled a process under the Migration Act 1958 (Cth) – whether applicants were recklessly indifferent or wilfully blind to the commission of any fraud – whether Tribunal denied applicants procedural fairness – whether Tribunal took into account all relevant considerations – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5, 5H, 5J, 36, 280, 476, 477
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142
Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53
Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213
Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146
Division: Division 2 General Federal Law Number of paragraphs: 114 Date of last submission/s: 27 January 2023 Date of hearing: 15 December 2021 and 2 December 2022 Place: Perth Applicants: The applicants appeared in person Counsel for the First Respondent: Mr A Cunynghame Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 806 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BMO17
First Applicant
BMW17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
26 April 2023
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 LADHAMS:
INTRODUCTION
By way of application filed on 21 April 2017 the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 4 April 2017 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicants Protection (subclass 866) visas (protection visa). The application to this Court is brought under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicants asserted in their application that the Tribunal decision is affected by a number of jurisdictional errors. However, when the matter came before the Court for hearing, it appears that the main allegation advanced by the applicants is that the Tribunal decision is affected by jurisdictional error as a result of fraud by their migration agent in the visa application process.
For the reasons explained below, I have found that the applicants have not established that the Tribunal decision is affected by jurisdictional error and I dismiss the application for judicial review.
BACKGROUND
The applicants are citizens of Malaysia who arrived in Australia in July 2015.
On 5 October 2015 the applicants applied for protection visas. The first applicant was the primary visa applicant and the second applicant, who is the wife of the first applicant, was included in the visa application as a member of the same family unit. The protection claims set out in the application alleged that the applicants fear harm from the Malaysian police and government due to their involvement with Bersih, a democratic protest group in Malaysia.
On 5 April 2016 a delegate of the Minister refused to grant the applicants protection visas.
On 15 April 2016 the applicants lodged an application with the Tribunal seeking review of the delegate’s decision. The application stated that the applicants sought visas for the second applicant to study in Australia and attached confirmations of enrolment for the second applicant.
On 27 March 2017 the applicants attended a hearing before the Tribunal to give evidence and present arguments. The applicants were assisted by an interpreter in the Tamil and English languages. At the end of the hearing the Tribunal gave the applicants until 3 April 2017 to seek the advice of a migration agent and to provide any comments to the Tribunal.
The applicants appointed a migration agent who provided a statement to the Tribunal on 3 April 2017. The statement asserted that the applicants had previously engaged the assistance of an agent named Roslyn who lodged an application for a protection visa on their behalf, when the applicants were under the impression that they had applied for a student visa. The statement further outlined that the applicants were not seeking protection from the Malaysian authorities and intended to return to Malaysia upon completion of the second applicant’s studies.
On 4 April 2017 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal considered the applicants’ evidence given at the Tribunal hearing to be credible, truthful and reliable. The Tribunal summarised that both applicants had confirmed that they had never been involved in the Bersih movement, do not support it and do not fear return to Malaysia on this basis or for any other reason. Both applicants gave evidence that the visa application had been written and submitted by Roslyn, without their knowledge, and that they came to Australia for the second applicant to pursue studies in cookery.
The Tribunal accepted that the applicants came to Australia for the second applicant to study and were misled by a number of intermediaries, including Roslyn, for money to apply for a protection visa. The Tribunal accepted the applicants did not know they had applied for a protection visa and did not fill out the forms except for signing the back page.
Based on the evidence given by the applicants at the hearing, the Tribunal did not accept the claims set out in the protection visa application and found that at the time of their departure from Malaysia, they did not have a profile with the police, the authorities or the government for any of the reasons set out in the visa application.
The Tribunal did not accept that, upon return to Malaysia, the applicants would face any of the harm or difficulties asserted in their protection visa application at the hands of the police, authorities, government or anyone else. It therefore did not accept that the applicants would face a real chance of persecution involving serious harm or a real risk of significant harm in the reasonably foreseeable future if they returned to Malaysia.
The Tribunal found that the applicants did not meet the criteria for a protection visa in s 36(2)(a) or (aa) of the Migration Act. As neither applicant met those criteria, the applicants were also unable to satisfy the criteria in s 36(2)(b) or (c) of the Migration Act.
The Tribunal expressed compassion for the applicants’ circumstances at being misled and hoodwinked in relation to their visa application, but declined to refer the matter for Ministerial intervention as the applicants had a visa pathway open to them, even if it is offshore. The Tribunal acknowledged that it remained open for the applicants to seek Ministerial intervention themselves.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act. A supporting affidavit was filed on the same day which annexes a copy of the Tribunal decision and reproduces the applicants’ grounds of review in their application.
The application to the Court raises ten grounds of review which are reproduced below:
l.The decision of the Tribunal contains error of process and procedure and therefore cannot stand and is subject to judicial review.
2.The Tribunal in paragraph 2 of the decision made an error of law in failing to give appropriate weight in its consideration that the applicants made an early application for protection.
3.The Tribunal erred in paragraph 6 of the decision by outlining considerations inappropriate and limiting their statutory power.
4.The Tribunal erred in paragraph 7 by limiting the criteria for a grant of the protection visa. Other criteria include the case law and United Nations Convention principles.
5.The Tribunal erred in proceeding on the basis set out in the Decision as the hearing and process for review was a merits review and the Applicants should have been invited to submit fresh merit claims.
6.The Tribunal failed to turn it mind to the protection visa claims once the Applicants highlighted that they wanted a student visa. This was an error of process.
7.The Tribunal erred when it failed to put to the Applicants that they could proceed with their protection visa claims.
8.The Applicants seek a fresh hearing where they can proceed with their merits review of their protection visa refusal. The Tribunal acted unlawfully in failing to proceed further on the basis that the Applicants initially wanted a student visa.
9.The Tribunal made an error of law in failing to consider that the applicants sought and made an application for merits review and thus wanted a review of the protection visa refusal.
10.The tribunal engaged in an improper exercise of power in dismissing the merits review without further consideration of the protection visa claims.
In accordance with the Order made by the Court on 11 October 2017, the applicants filed written submissions on 4 October 2021.
The applicants’ submissions are at odds with some of their grounds, in that the applicants accept in their submissions that they do not qualify for a protection visa. The applicants referred to cases of the courts addressing fraud on the Tribunal, including Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141 and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35, and submitted that an unregistered agent engaged in an elaborate scam and lodged a protection visa for them without their instructions or authority. In relation to relief, the applicant’s said at [36] of their submissions:
The Applicants seek that the Tribunal reconsider their matter to remit their matter back to the Department to allow them to apply for a student visa to complete their studies and regularly depart Australia without having a negative immigration record which will permit a proper regular visa application in the future.
The Minister filed submissions on 24 November 2021.
The matter first came before me for hearing on 15 December 2021. At the conclusion of that hearing, I reserved my judgment but in the course of preparing the judgment, I formed the view that I ought to have given the applicants an opportunity to provide sworn evidence in relation to their fraud claim, in accordance with the Full Court judgment in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [43] (Robertson J), [53] (Allsop CJ), [58]-[60] (Mortimer J). I therefore listed the matter for a directions hearing, explained to the applicants the need to file evidence to establish fraud, made orders allowing for the filing of further evidence and submissions and listed the matter for a further hearing on 2 December 2022.
The applicants provided one affidavit sworn by the first applicant. The Minister filed further written submissions to the effect that the evidence provided by the applicants was insufficient to establish fraud.
The applicants were both afforded an opportunity to give oral evidence at the hearing on 2 December 2022. The evidence given by the applicants was more extensive than the evidence in the affidavit of the first applicant and because of this, the parties were given an opportunity to obtain a transcript of the hearing and to file written closing submissions, rather than making oral submissions on the day of the hearing.
The applicants filed closing submissions on 4 January 2023, the Minister filed closing submissions on 23 January 2023 and the applicants filed reply submissions on 27 January 2023.
CONSIDERATION
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
For the applicants to be entitled to relief, they must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Allegation of fraud
Relevant principles
The applicants’ case, at a high level of generality, is that the application for a protection visa was prepared and lodged by an unregistered migration agent named ‘Roslyn’ without their knowledge and that they never intended to apply for a protection visa.
The Minister in his submissions filed on 23 January 2023 accurately summarised the nature of the fraud asserted by the applicants in the following way (footnotes omitted):
In this case, the applicants do not appear to seek relief by reference to the stultification of the processes the Tribunal was required to adhere under the [Migration Act] (cf, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189)… The applicants were aware of their agent’s conduct at the time their application was before the Tribunal. Rather, the applicants appear to contend that the fraud of their migration agent in connection with the preparation of their visa application meant that their visa application was never a valid application for the purposes of s 47 of the Act, and the Minister’s delegate was prevented from considering it.
A finding of fraud is a serious matter and the person identified as Roslyn, against whom the applicants ask the Court to make a finding of fraud, has taken no part in these proceedings. The Court may, however, draw inferences about the motives of Roslyn from the available materials: SZFDE at [38].
If the applicants can discharge their onus of establishing that the visa application was made without their knowledge or authority, or was otherwise fraudulent and they were not complicit in or recklessly indifferent to that fraud, the visa application will be invalid. As the Full Court of the Federal Court said in Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213 (Maharjan) at [105]:
The concept of a valid visa application, on the current state of the authority of this Court, does not include an application made without the actual or otherwise authority of the named visa applicant, where the visa applicant does not have capacity to give authority (see [Minister for Immigration and Border Protection v] Kim [(2014) 221 FCR 523; [2014] FCAFC 47]) and does not include an application based on fraudulent documents where the visa applicant is neither complicit in the fraud nor indifferent to the use of unlawful or dishonest means (see Singh [v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141] and Gill [v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142]).
The Full Court of the Federal Court summarised the principles applicable to fraud in a visa application in Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53 (Kaur) at [56]-[57], where it said:
56.The principles applicable to the determination of whether fraudulent conduct vitiates a visa application are helpfully set out in the Minister’s written submissions at [6]–[9], and were not disputed by the appellants. They arise from the High Court’s decision in SZFDE, and four decisions of the Full Court of this Court, and there is no challenge to the correctness of those authorities:
First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves … room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application” (Singh at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 (Singh at [52]).
Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Marharjan at [53], citing Gill at [50]).
Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Marharjan at [35], [44], [122]).
Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud not ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.
(Original emphasis and footnotes omitted.)
57.To this summary should be added the following propositions articulated by the High Court in SZFDE:
(a)There are important differences between fraud in public and private law, in particular the need in the context of public law for a fraud to have an effect on the processes of the exercise of public power in order for it to vitiate those processes, and be capable of “unravelling” decisions or conduct: see SZFDE at [14], [24]–[27], [29], [42] (by reference to the reasons of French J (in dissent, and as his Honour then was) in the Full Court: Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365), [47]–[49]. One way of expressing this is to ask whether the repository of the public power was “disabled” from performing its statutory functions by reason of the fraud (at [51]).
(b)Often the only effective remedy for victims of fraud in public law is for the tainted decision-making process to be set aside and a “fresh untainted hearing conducted” (at [22]).
(c)Circumstances where an applicant for judicial review has “colluded” in the fraud are excluded from these principles (at [28]).
(d)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]).
The concept of indifference has been considered in a number of cases, including Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142 (Gill), Maharjan and Kaur.
In Gill, the Full Court 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 Maharjan, the Full Court said at [52]-[54]:
52.As we have noted, the remainder of the Full Court’s reasoning in Gill predominantly concerned the concept of “indifference”: what that meant and how it was to be established. That is not a matter relevant to the issues in the current appeal. However at [50], albeit in the context of resolving the contentions about “indifference”, the Full Court in Gill made a broader statement of principle, which in our opinion is relevant to the current appeal. It said:
We accept the appellant’s submission that the operation of provisions such as ss 45 to 48 and 98 of the Migration Act and PIC 4020 can be affected by the fraudulent conduct of a migration agent in circumstances where the visa applicant has not colluded in that fraud and there is no evidence to support a finding that the visa applicant was indifferent as to whether the agent used unlawful or dishonest means to obtain a visa. As noted above, the Minister ultimately did not contest that s 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.
53.This statement of principle recognises two matters. First, it is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it, “indifferent as to whether the agent used unlawful or dishonest means to be obtain a visa”. Those concepts, of collusion and indifference, while applicable to the conduct of an Australian migration agent, are equally applicable to the conduct of any third party engaging in fraudulent conduct for the purposes of obtaining a visa for an applicant. At the level of general principle it is important to also repeat what the Full Court in Gill said at [52]: namely, that:
issues of fraud in a public law context were sui generis and are not to be equated with cases involving the creation and protection of personal and property rights in inter partes litigation where common law and/or equitable principles concerning fraud may arise for determination.
54.Second, the relevant stultification in such circumstances relates to the prescriptive and specific requirements in the Act concerning consideration of valid visa applications, and non-consideration of visa applications which are not valid.
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]-[140].
In Kaur at [151], the Full Court said:
… there will be no such “disabling” effect if the visa applicant is complicit in the fraud. Similarly, there will be no such effect if the visa applicant is recklessly indifferent or wilfully blind to the fraud, which is what in our opinion “indifference” means in this context. With both states of mind, or conduct, the exercise of power has miscarried with the participation of the visa applicant and no relief can flow: the visa applicant is fixed with the consequences of her or his conduct, which has been found to be dishonest, alongside the third party fraudster.
Declaratory relief is available to the applicants if they are able to show that they are the innocent victims of fraud by their migration agent, and that the third party fraud stultified or disabled a process or processes under the Migration Act: Maharjan at [78]. The applicants bear the onus of proof to establish invalidity in the protection visa application: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67]; Marharjan at [78]. The onus of proving fraud is a ‘heavy burden’: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [51].
Issues for determination
The Minister in his submissions filed on 23 January 2023 identified two questions for the Court’s determination:
(a)On the evidence, was the conduct of any person who provided assistance to the applicants in connection with their visa application such as to amount to ‘fraud’ on the applicants and on the Department?
(b)If there was fraud by a third party, were the applicants complicit or indifferent to its commission such that the Court would not conclude that the applicants’ visa application was not a valid application for the purposes of s 47 of the Migration Act?
I agree that these are the two issues for the Court’s determination insofar as the applicants assert fraud in the visa application.
I also observe at this early stage that while the Tribunal made findings of fact that are relevant to these issues, the Court is not bound by those findings. That is because whether the visa application was invalid due to fraud is a jurisdictional fact to be determined by the Court. Some of the evidence given by the applicants to the Court differed from that given by the applicants to the Tribunal and that different evidence goes some way to explaining the different findings of fact made by the Tribunal and the Court.
Relevant evidence
The evidence relevant to the issues relating to the allegation of fraud comprises the affidavit of the first applicant filed on 28 October 2022, the oral evidence given by both applicants at the hearing on 2 December 2022 and the court book. The applicants filed written closing submissions and submissions in reply, which were both annexed to affidavits made by the second respondent. The content of both affidavits annexing submissions appears in the form of a letter to the registry which relevantly refers to submissions being enclosed. I treat the submissions annexed to the affidavits of the second respondent as submissions rather than evidence. However, I have had regard to the submissions to carefully consider whether the purported facts set out in the submissions would, if accepted, affect the findings I have made. Even if I were to accept the submissions as evidence, it would not change the outcome of this application. I have also had regard to the Tribunal’s summary of the evidence that the applicants gave to it and have taken that evidence into account where it supplements the applicants’ evidence to the Court. However, in circumstances where there is no transcript of the Tribunal hearing before the Court, I make no adverse credibility findings against the applicants in relation to any aspect of their evidence which, based on the Tribunal’s summary, might be seen to be inconsistent with their evidence to the Court.
Both applicants gave evidence that they came to Australia so that the second applicant could study and I accept that this is the case. Neither applicant offered any meaningful evidence as to why they entered Australia on tourist visas, rather than applying for student visas in Malaysia, given their stated intention of the second applicant studying in Australia. Based on the Tribunal’s summary of the applicants’ evidence, it appears that the applicants gave evidence to the Tribunal about a friend in Australia who was going to assist them to get a visa, but when they arrived, a go-between requested $5,000, which the applicants refused to pay until their visa was organised.
Both applicants also gave evidence that while staying at a hotel, they saw a lot of people from Malaysia working there. The applicants did not have any job at this time and they were spending all of the money that they had brought into Australia. The applicants said that they questioned the Malaysians they saw working at the hotel, who gave them the name of an agent, Roslyn, and a phone number. The second applicant also gave evidence that the managers at the hotel told them that if they wish to stay longer, they must apply for some other visa.
The first applicant gave evidence that he contacted Roslyn and asked to meet him. Roslyn agreed to meet the applicants in Melbourne so they travelled by public transport to Melbourne.
The first time the applicants met Roslyn was at a Hungry Jack’s store in Melbourne in September 2015. The first applicant gave evidence that the applicants made a request of Roslyn to the effect that the second applicant wanted a visa to study in Australia, and the first applicant wanted to have a visa to work in Australia. Roslyn brought forms with him to the meeting and asked the applicants to write various personal information, including full name, address, schools they had studied at, family members’ details and ‘everything’ on a blank piece of paper. Roslyn took the completed paper from the applicants but, according to the first applicant, did not explain the various forms. Both applicants said that Roslyn asked them to sign the forms in various places. The first applicant gave evidence that some of the forms were witnessed by a pharmacist and I note that this is consistent with the witness details on the completed protection visa application forms.
In their written closing submissions, the applicants suggested that it was after they signed the forms that the agent told them to write down their family details and education details on empty white paper, and after the signing process was done that the agent took the applicants to a nearby pharmacy for verification.
Both applicants gave different evidence about questions they asked of Roslyn at the first meeting. The first applicant gave evidence that when the second applicant was signing the documents, she noticed something different on the form at one particular place and questioned Roslyn why they needed to sign that form. Roslyn told them that it was for the bridging visa, and that if they want to study and work, they must first get a bridging visa. The first applicant also gave evidence that Roslyn told the applicants that after six months they would be called for an interview and they would need to pay in full before that.
The second applicant gave evidence that she asked Roslyn why they had to give details of their family members when the visa application only related to the two applicants and Roslyn replied to the effect that ‘in this country… [w]hen you apply for any kind of visa, you have to give all your family details’. She also gave evidence that when she was signing the forms, she noticed that one form said ‘protection visa’. She said that she asked Roslyn, ‘Why do we need to apply for a protection visa?’, and Roslyn answered to the effect that it was a legal form and that they would need to apply for this visa to get into the country, and after six months they can change their visa status to a different type of visa.
In their closing submissions, the applicants have given a slightly different account of these conversations, saying at [15]-[18] of their submissions:
15.Between the conversations second applicant asked the agent about what type of visa this before signing the forms. And the agent answered to second applicants that this the visa you need apply if you want stayed legally in Australia and it’s called bridging visa.
16.The second applicant also asked about student visa and the agent told her, she could apply for student visa after 6 months of this visa application and they should get this Bridging visa before the tourist visa expired.
17.While signing the forms, The Second Applicant was asked the agent why the form title with Protection Visa and the agent answered it is kind of Bridging visa for stayed legally in Australia.
18.The Applicants trusted the agent and signed the forms.
In relation to payment, both applicants gave evidence that Roslyn told them that the cost to apply for the visa would be $3,000, and that they paid only $300 at this first meeting.
The applicants took photographs with Roslyn at their first meeting with him, which are annexed to the first applicants’ affidavit. The first applicant gave evidence that they took the photographs with Roslyn so that there is proof of him if something happens. The second applicant gave evidence that at the first meeting, she asked what they should do if he cheated them. She said that the applicants told Roslyn that they had better take a picture with him and he agreed. She also gave evidence that at this meeting, she asked Roslyn, ‘If you are a registered migration agent, why don’t you take us to your office?’, and that Roslyn gave a response that the second applicant described as ‘some reason… likes us to meet here in Hungry Jack’s’. In their reply closing submissions, the applicants asserted that the ‘agent give some reasons for not inviting us to the office.(under renovation).’ There is no evidence of this, but I will nevertheless take it into account in addressing my reasons in this matter.
The protection visa application was signed by the applicants on 30 September 2015. There are a few relevant details in the protection visa application which are worth noting in this judgment:
(a)the application form 866B was signed by the first applicant on the front page (CB 1), declaring that the information provided in the application was true and honest in every way and he confirmed in cross examination that the signature appearing on that page was his own;
(b)the date of birth of the second applicant identified on the second page of the form 866B (CB 2) is incorrect, based on the evidence of the first applicant in his affidavit of 28 October 2022 and the second applicant’s passport that appears in the court book (CB 44);
(c)at question 6 of the form 866B, it is indicated that the applicants did not receive any assistance in completing the form and at question 10, it is indicated that all communication should be sent to the applicants (CB 8);
(d)the form 866B appears to be signed by both applicants at page 9 of the application (CB 9) and the first applicant confirmed in cross examination that the signature was his, but the second applicant denied in cross examination that the signature was hers;
(e)the first applicant’s form 866C appears to be signed by him on the first page (CB 11) and he confirmed in cross-examination that the signature was his;
(f)the first applicant’s form 866C contains an address at Nyah West, Victoria (CB 15, 25), which the applicants say was the wrong address;
(g)in the first applicant’s form 866C, in response to question 41 where the first applicant was asked to list all of his email addresses, but not to include any migration agent email addresses, two email addresses are recorded, both Gmail, the first of which the applicants acknowledged in cross-examination was the first applicant’s email address and the second of which the first applicant claims belonged to Roslyn (CB 15);
(h)in the first applicant’s form 866C, the date of departure from Malaysia is recorded as 10 days after the date of arrival in Australia (CB 19);
(i)the first applicant’s form 866C at CB 34 was signed by the first applicant, and he confirmed in cross-examination that the signature was his;
(j)the second applicant’s form 866D contains a signature on the first page (CB 36) and the last page (CB 42) of the court book and in cross-examination the second applicant confirmed that the signature on CB 36 was hers but denied that the signature on CB 42 was hers.
After the visa application was lodged, it appears based on the second applicant’s evidence that the applicants met Roslyn on two further occasions, although the first applicant’s evidence in relation to this is vague.
The second applicant gave evidence that the second time they saw Roslyn, in October 2015, Roslyn said he already got their visa grant number and because they had initially paid him only a $300 deposit, he came to collect the balance. They could only pay him $1,000 at that time. The third time they saw Roslyn was in December 2015 when he came to their hotel to collect the balance of the money he was owed. The second applicant said that she told him, ‘No, I’m not going to pay you the balance because you promised us earlier, in six months’ time you will change the visa to another … I’m simply … I’m not going to pay you any more money’.
The second applicant was very clear in her evidence that the applicants had no contact with Roslyn after December 2015. She gave evidence that they attempted to contact him after their visa application was refused, but could not contact him.
There is no documentary evidence before the Court relating to the applicants being granted a bridging visa. The Tribunal’s summary of the applicants’ evidence suggests that the first applicant told the Tribunal that the applicants received a visa with work rights, which was sent to their hotel address. Based on the context and where this fits in the applicants’ narrative, this may be a reference to a bridging visa granted in or around October 2015.
The evidence relating to communications from the Department to the applicant shows that the Department sent to the applicants an acknowledgement of a valid protection visa application on 4 March 2016 to the email address of the first applicant. The notification of the refusal to grant the applicants a protection visa was also sent to the first applicant’s email address on 5 April 2016.
The second applicant completed a form 80 without the assistance of an agent. In the form she indicated that she came to Australia to follow her husband and that she wanted to remain in Australia to study. She said her husband was applying for a bridging visa. The second applicant gave evidence at the hearing that she thought the form was for the ‘new visa’.
The applicants have given inconsistent evidence about when found out that they applied for a protection visa. At the hearing the first applicant said that the applicants only found out they had applied for a protection visa after their application was rejected and they sought advice from another agent. However, this is not consistent with the second applicant’s evidence that she saw at the time she signed the forms that it was for a protection visa.
Throughout their evidence to the Court, the applicants have repeatedly referred to Roslyn as an unregistered migration agent. The first applicant said at the hearing that Roslyn promised to change the visa condition to student visas after six months, but he failed to do this and when they tried to call him, he never answered his phone calls. It was after their application was rejected that the applicants say they came to know that Roslyn was not a properly registered migration agent. He just cheated them. They also said that they spoke with the other Malaysians working at the hotel and found out that he applied for protection visas for them too, but even these people were unaware of the type of visa they paid Roslyn to apply for.
Did the conduct of the agent amount to fraud?
The applicants in this matter have not discharged the heavy burden of establishing that the person they know as Roslyn committed fraud against them and that the fraud stultified or disabled a process under the Migration Act.
The applicants’ assertion is that Roslyn was an unregistered migration agent who applied for a protection visa on their behalf without their knowledge, and that some of the information in the protection visa application is incorrect.
The Minister submitted that there is an insufficient evidentiary basis for the Court to find that the migration agent known as Roslyn engaged in conduct that could amount to fraud, given that there is no direct evidence of any dishonesty or improperly motivated conduct on the part of Roslyn or any other person in connection with the applicants’ protection visa application. While I acknowledge the lack of direct evidence, this is not fatal to the applicants’ case, as it would be open to the Court to draw inferences about Roslyn’s dishonesty or improperly motivated conduct if the Court considered those inferences were open on the evidence. However, I do not draw any inferences as to the motives of Roslyn lightly, particularly in circumstances where, for the most part, the Court only has available to it the evidence of the applicants and for reasons explained further below, I consider that the applicants have been very selective in the evidence that they have given to the Court, only volunteering evidence that they consider will advance their case.
While the applicants’ case has not been clearly articulated, it appears that there are three ways in which the applicants claim to have been the victims of fraud carried out by Roslyn:
(a)as a result of Roslyn being an unregistered migration agent;
(b)as a result of Roslyn lodging an application for a protection visa without their consent; and
(c)as a result of the protection visa application containing information that is false or incorrect.
I address each of these matters in turn.
Have the applicants established that Roslyn was an unregistered migration agent?
I accept that the applicants met with a person named Roslyn and that he assisted them in completing various forms for the purposes of making a visa application and bridging visa application. I also accept that they paid him $300 on the first occasion that they met him and a further $1,000 on a subsequent occasion and that this is well short of his requested $3,000 fee.
Although the applicants have referred to Roslyn as an unregistered migration agent, I cannot make any finding that he was an unregistered agent based on the evidence before me. The assertion that he was unregistered appears to be based on the applicants not being granted a substantive visa, their assertion that they tried to contact him and could not, and their discussions with unnamed Malaysians working at the hotel they were staying at who allegedly utilised his services. In the written closing submissions, the applicants also refer to learning through ‘researching and [talking] to other Malaysian people’ that Roslyn was not a registered migration agent.
I place no weight on the applicants’ evidence of what they were told by other people in the hotel they were staying at. There is no evidence of the identity of the people who made the representations or the words that they said, and they were not called to give evidence on behalf of the applicants. I also place no weight on the applicants’ submission that they did research where the nature of the research is not identified and the applicants have not indicated the steps they took to form the view that Roslyn was unregistered.
The photographs provided by the applicants do not show that Roslyn was unregistered or that he engaged in fraud. They show nothing more than that the applicants met with a person and took photographs with him.
I acknowledge that there is some evidence that is inconsistent with the applicants being assisted by a registered migration agent. If a registered migration agent assisted the applicants to complete the visa application forms, one would expect this to be recorded in the visa application form. However, this on its own does not establish that the agent was unregistered.
The applicants have not given any evidence that Roslyn represented to them that he was a registered migration agent. The second applicant at the hearing gave evidence that she held concerns that Roslyn was not a registered migration agent at the time of their first meeting, and gave evidence that she asked him, ‘If you are a registered migration agent, why don’t you take us to your office?’. Such a question in some ways appears to be at odds with the applicants’ claimed ignorance of all matters relating to visas in Australia at that time. However, based on the second applicant’s evidence, nothing in the claimed response from Roslyn amounted to any representation that he was a registered migration agent.
In any event, even if I were to accept that Roslyn was not a registered migration agent, and that he did assist the applicants with their visa application, this would likely amount to a contravention of s 280 of the Migration Act, but it would not automatically follow that the visa application process would be stultified or disabled.
Was the protection visa application made without the applicants’ knowledge or authorisation?
I accept that the applicants came to Australia so that the second applicant could study and that they do not now claim to engage Australia’s protection obligations. The second applicant has completed three certificate level courses since arriving in Australia.
However, I do not accept that the protection visa application was made without the applicants’ knowledge or authorisation. There are significant gaps in the evidence in relation to what happened when the applicants met with Roslyn and the applicants have chosen to provide evidence or information about only some of the conversations they had with Roslyn and some of the information they provided to Roslyn.
I accept the second applicant’s evidence that she noticed when she signed the forms that one of them was for a protection visa application and that she asked Roslyn about this. There is no evidence that the first applicant was not present at this time, and given that the evidence suggests that the applicants met Roslyn together, I infer that the first applicant was present when the second applicant asked about why they were signing a form for a protection visa application. To the extent that there is any inconsistency in the second applicant’s evidence at the hearing as to Roslyn’s reply to the second applicant’s question about the protection visa application and the applicants’ submissions about this issue, I prefer the evidence given under affirmation at the hearing.
There is no evidence that after noticing that the application was for a protection visa and asking Roslyn about it, the applicants asked Roslyn not to make the application. On the contrary, the applicants proceeded to sign the forms and trusted Roslyn to proceed to lodge the protection visa application. Even if the applicants understood that they would be able to change the visa to a student visa at a later date, I find that they still understood that the visa application they were making in or around September 2015 was for a protection visa.
It follows that I do not accept that the applicants did not know that they had applied for a protection visa until after it was refused by the delegate. In addition to the second applicant noticing when she was signing the forms that the application was for a protection visa and asking Roslyn about it, the correspondence that the applicants were sent by the Department acknowledging the visa application clearly indicated that they had applied for a protection visa. This correspondence was sent to the first applicant’s email address and there is no suggestion that the applicants did not receive it or provide the additional information requested in the acknowledgement.
Did the inclusion of incorrect information in the protection visa application amount to fraud?
In their submissions after the hearing, the applicants appear to attach particular significance to their evidence that they did not personally complete the various forms. The simple fact that a person other than the applicants filled out the forms, and that the forms contain handwriting that, on their evidence, does not belong to them does not establish that the person who compled the forms, be it Roslyn or some other person, acted fraudulently. I accept that Roslyn completed the visa application forms and that the applicants engaged him to do so.
The applicants point to information in their protection visa application that is incorrect, and the inclusion of an email address that is not theirs, as proof that the visa application is fraudulent. I do not accept the applicants’ submission in this regard.
While the inclusion in the application of an incorrect date of birth for the second applicant and an incorrect date of departure from Malaysia show some carelessness in the completion of the protection visa application form, it does not show any deliberate inclusion of false information.
I acknowledge that the address included in the visa application form is different to that included in the second applicant’s form 80. However, even before the second applicant completed the form 80, the Department addressed correspondence to the applicants at the address of the hotel indicated in the form 80. This suggests that either other forms provided with the protection visa application (such as a bridging visa application) may have contained the hotel address, or that the applicants or Roslyn may have been in contact with the Department to update or correct their details shortly after the visa application was lodged. In any event, I do not find fraud on the basis of the inclusion of an incorrect address (if indeed it was incorrect). Even if the address was incorrect, there is no evidence from which I can conclude that there was any intent to defraud the applicants by including that address, or to prevent them from receiving information about their visa application. I note in particular that the address is in Nyah West, and I make no inference that it is Roslyn’s address because, on the applicants’ evidence, Roslyn asked them to travel to Melbourne to meet him, suggesting that he was based in Melbourne, not Nyah.
While the applicants have asserted that a second email address included in the application belonged to the migration agent and not to them, there is no documentary evidence to support this. For example, there is no evidence of any email communications between the applicants and the agent that would confirm the address is his. Nevertheless, I am prepared to accept that the secondary email address included in the protection visa application did not belong to the applicants. There is no evidence that the Department ever used the second email address in the application for any communication, and there is no suggestion by the applicants that they did not receive any relevant communications as a result of the inclusion in the application of a second email address that was not theirs.
The applicants gave evidence to the Tribunal and the Court that they do not have any problems or issues in Malaysia and do not need protection. It follows from this that the substance of the claims in the protection visa application are false. The question then becomes whether Roslyn committed fraud on the applicants when he included this information in the protection visa application. The applicants have not offered any evidence on this point. That might be explained by the fact that, until the second applicant’s oral evidence to the Court, the position adopted by the applicants was that they did not know that they had applied for a protection visa until their application was refused. As can be seen from the above paragraphs, I found, based primarily on the second applicant’s oral evidence that the applicants knew that they were applying for a protection visa before the conclusion of their first meeting with Roslyn.
The applicants have not specifically submitted that the inclusion of the false claims for protection amounted to fraud on them, instead focusing on the other incorrect information already addressed above. There is no direct evidence before the Court from which I can make any findings one way or the other as to whether there was any discussion between them and Roslyn about the Bersih movement, or the protection claims contained in the application. In the absence of evidence, I do not make any positive finding that the applicants were aware of the content of the protection claims prior to their visa application being lodged. I therefore do not find that, to the extent that the provision of false claims could be seen as fraud against the Department, the applicants were complicit in that fraud.
However, I am also unable to find that the applicants have discharged the onus of establishing fraud based on the content of their claims, and I am not prepared to draw any inference in their favour on this point.
In giving evidence of the information that the applicants gave to Roslyn for the purposes of their visa applications, the first applicant’s evidence was that he requested of Roslyn a student visa for the second applicant and a work visa for himself, and that Roslyn gave him paper to ‘fill out all … our details. Birth and details. Like name and the … details and everything.’ Later in his oral evidence, the first applicant said Roslyn gave them blank paper ‘to write down all our family details, names and that, everything’. In her oral evidence, the second applicant said Roslyn gave them blank paper and ‘asked us for all our personal details, like our full name, my country address, and the school we had studied, and our family members’ details – everything.’
It is clear that the types of information that the applicants claim to have given Roslyn were not exhaustive. This is apparent not just from both applicants ending the list of information sought with the term ‘everything’ used in a way to suggest that there was more information requested and provided, but also because there was a lot of information included in the protection visa application that extends well beyond information about names, birth dates, family composition, address and education history, and which the applicants have not asserted to be incorrect. The further information includes information relevant to character, contact details, place of birth, citizenship of the applicants and their family members, military service, language ability, ethnic groups, religion, employment history, date and place of marriage, contact with relatives outside of Australia, travel and passport details (although I acknowledge that the passport details might be evident from the applicants’ passports, if they produced those to Roslyn) and visa history including whether the applicants had previously applied for protection. The inclusion of all this additional information in the application suggests that either Roslyn asked the applicants to write down more than they indicated in their evidence, or he went through the application form and asked more questions than the applicants indicated in their evidence. The upshot is that I cannot draw an inference from the absence of evidence of any discussion about the claims for protection that such a discussion did not take place, as the applicants have not given an exhaustive account of the information they provided to Roslyn.
Were the applicants recklessly indifferent or wilfully blind to the commission of any fraud?
Given that I have found that the applicants have not established that they were the victims of fraud by their agent, it is not strictly speaking necessary to address whether the applicants were recklessly indifferent or wilfully blind to any fraud committed by their agent.
However, in the event that I am subsequently found to be wrong in relation to any of the findings above, I also set out my findings in relation to whether the applicants were recklessly indifferent or wilfully blind to whether Roslyn used unlawful or dishonest means to attempt to obtain visas for the applicants.
The first applicant gave evidence at the hearing that the agent showed them where to sign on the various forms, and the applicants believed him and signed the forms. In their closing submissions, the applicants submitted that they ‘trusted the agent’ and signed the forms. The second applicant gave evidence, and the applicants made submissions, to the effect that they did not know as much about visas in Australia at the time of their application as they now know.
I accept that the applicants now have greater knowledge about visas in Australia than they had at the time of the protection visa application. However, I do not accept that the applicants were as naïve as they claim at the time of the visa application, and their assertion that they ‘trusted the agent’ requires careful consideration.
Significant parts of the applicants’ evidence clearly suggests that they did not trust Roslyn, including the following:
(a)The second applicant gave evidence at the hearing that at the time the applicants first met with Roslyn, she was concerned that he was not a registered migration agent, and that she asked him, ‘If you are a registered migration agent, why don’t you take us to your office?’. It seems surprising that the second applicant would have known that a migration agent needed to be registered at that time, in the light of her claimed lack of knowledge about the Australian migration system. However, her knowledge at the time about whether agents needed to be registered was not put to her in cross-examination, and I am prepared to accept that she had concerns at the time she met Roslyn as to whether he was registered or otherwise trustworthy.
(b)The applicants took photographs of Roslyn when they first met him. The first applicant’s evidence as to the purpose of taking the photographs was that ‘at that time we thought better to take him … picture because suppose if something happen, then we have a proof of him’ and the second applicant’s evidence as to the purpose of taking the photographs was that ‘at that time, I asked … if he cheated us, what do we do? Then … told him that better – we like to take a picture with that. Then he agreed.’ While I have found above that the photographs do not establish fraud, the applicants’ evidence as to why they took the photographs shows their doubts about Roslyn at the time that he assisted them to apply for the protection visa. I note in passing, and without drawing any adverse inference, that it is not apparent from the evidence before the Court why the applicants thought that photographs would be the best way to show that Roslyn had assisted with their visa applications, as opposed to more conventional business methods, such as requesting a written agreement as to services to be provided, a receipt for the $300 paid, or even requesting a business card.
(c)The applicants’ approach to the payment for Roslyn’s services was unconventional. On the applicants’ evidence, Roslyn advised at or before his first meeting with the applicants that his fee would be $3,000. The applicants only paid $300 of that amount at the first meeting, and Roslyn apparently accepted this, notwithstanding the significant work that goes into preparing a visa application. The first applicant’s evidence was that Roslyn told him that the Department would call the applicants for an interview after about six months, and the applicants would need to pay fully before that. I infer from this that the full $3,000 fee was to be paid within 6 months, and before the applicants had to attend the Department, which would be before the outcome of the visa application would be known. The applicants met Roslyn again, after they received their bridging visas with work rights and paid a further $1,000. The second applicant gave evidence that Roslyn came to their hotel in December 2015 to collect the balance of the money that the applicants owed to him. The second applicant’s evidence was that ‘Then I told him, “No, I’m not going to pay you the balance because you promised us earlier, in six months’ time you will change the visa to another so that we … thing. I’m simply … I’m not going to pay you any more money”.’ This stance of the second applicant is inconsistent with the applicants’ claimed trust of Roslyn at the time the visa application was lodged. Taking into account the applicants’ evidence that Roslyn told them they would need to pay in full before their protection visa interview, and their evidence that they received bridging visas with work rights in or around October 2015, there is no apparent reason why the applicants’ level of trust in Roslyn would change between September 2015 when they signed the protection visa application forms and December 2015 when Roslyn requested his outstanding payment.
Although the first applicant gave evidence that Roslyn did not explain the forms to the applicants, it is clear that the applicants sighted at least part of the forms before signing them, as they asked questions about the forms, including about why one of the forms was for a protection visa. This is not a case of unsophisticated applicants who were completely reliant and dependent on a migration agent to lodge their visa application. Based on the limited information the applicants have chosen to provide about their meetings with Roslyn, it is clear that they asked questions and took steps to look after what they perceived to be their interests, including by questioning Roslyn about the forms and information required, and negotiating regarding payment for services.
The applicants saw enough of the forms when they signed them to know that they were not at that stage applying for student or work visas, and that at least one of the forms was for a protection visa. On the applicants’ evidence, they did not need protection. As noted above, there is no evidence before the Court as to any discussions that took place in relation to the content of any claims for protection. The applicants signed the protection visa application in multiple places, and not just on the back page, as they appear to have suggested to the Tribunal. I do not accept the second applicant’s evidence that two of the signatures on the protection visa application form were not hers, noting that one of the signatures that she claims was not hers was witnessed by the pharmacist.
I accept that the applicants signed the forms without reviewing every word on them or every answer submitted on their behalf. There is no evidence that they sought any opportunity to review the completed forms before signing them, and I infer that the applicants simply left the forms with Roslyn to submit to the Department. There is no evidence before me as to when the applicants were first provided with a completed copy of their protection visa application or when they first became aware of the full content of that application.
Although the applicants’ evidence is rather vague in places, I understood that the protection visa application was completed when the applicants signed it. However, their closing submissions present a different version of events not previously raised. In their closing submissions, the applicants submitted that after they signed the forms the agent told them to write their family and education details on a blank sheet of paper, and in their reply submissions, they submitted that they allowed the agent to keep the uncompleted forms because they trusted the agent to do all the visa processing. These submissions imply that the visa application forms had not been filled in, or were known by the applicants to be incomplete, when they signed them. It is concerning that these issues are raised for the first time in closing submissions, when the applicants are able to collaborate in their representations to the Court and when the opportunity for cross-examination has passed.
In any event, whether the applicants signed a completed visa application form without seeking any opportunity to review it, or whether they signed an incomplete visa application form and simply left it for their agent to complete and submit, I find that they were recklessly indifferent or wilfully blind to any fraud committed by their agent. It is particularly relevant that the applicants had seen that one of the forms was for a protection visa, and that their conduct and questions referred to in [94] above suggested that they had doubts about Roslyn and thought he might cheat them, and yet still chose to allow him to lodge a visa application that they had not viewed. I infer from their conduct in these circumstance that they were recklessly indifferent to the truth of any claims for protection put forward to the Department to support their protection visa application.
To the extent that the applicants say that they trusted the agent, I find that that trust extended only so far as to trust him to complete and submit the visa application. The applicants have not established that they trusted Roslyn to use only lawful and honest means in his dealings with them, or in relation to the method of obtaining a substantive visa. I find that the applicants were recklessly indifferent or wilfully blind as to whether Roslyn used unlawful or dishonest means to obtain a substantive visa.
Conclusion in relation to the applicants’ assertion of fraud
The applicants have not established that the protection visa application was invalid because they were the innocent victims of fraud by their agent.
Grounds raised in application
The grounds raised in the application did not appear to be advanced by the applicants in their submissions, and the applicants submitted at the first hearing that they did not believe the Tribunal had done anything wrong. However, the grounds have not been formally abandoned, so it is appropriate to address them here.
None of the grounds raised in the application establish jurisdictional error.
Ground 1 asserts that the Tribunal decision has ‘errors of process and procedure’. I interpret this ground as an assertion that the Tribunal failed to afford the applicants procedural fairness. There is no merit to this ground. The Tribunal complied with the mandatory procedures in Division 4 of Part 7 of the Migration Act, including by inviting the applicants to attend a hearing to give evidence and make submissions. Further, the Tribunal in this matter gave the applicants an opportunity to take advice and provide further submissions after the hearing, in response to the issues raised at the hearing. The applicants have not identified any process or procedure adopted by the Tribunal that amounted to a denial of procedural fairness.
Ground 2 asserts that at [2] of its reasons, the Tribunal made an error of law by failing to give appropriate weight to the applicants making an early application for protection. At [2], the Tribunal simply recounted the applicants’ arrival in Australia in July 2015 and their application for a protection visa made on 5 October 2015, including the nature of the claims advanced by the first applicant. This is not, however, a matter where the Tribunal made adverse credibility findings against the applicants because of any delays in making an application for a protection visa. Rather, the applicants gave evidence at the Tribunal hearing that the claims in the protection visa application were false and they did not fear harm in Malaysia and wished to stay in Australia so that the second applicant could study. The Tribunal accepted the evidence given by the applicants at the hearing and found that they did not meet the criteria for a protection visa on their own evidence. In making this decision, it was a matter for the Tribunal to determine what weight, if any, it placed on the timing of the protection visa application. It was open to the Tribunal to place no weight on the timing of the application in accepting the applicants’ evidence that they did not fear harm in Malaysia and in finding that they did not meet the criteria for a protection visa. Ground 2 does not establish jurisdictional error.
Ground 3 asserts that the Tribunal erred at [6] by referring to considerations that were inappropriate and limiting its statutory power. At [6] of its reasons, the Tribunal identified the following four issues for its consideration:
•Are the applicants credible as to their claims?
•Do the applicants have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?
•Do the applicants meet the protection obligations under the complementary protection provisions of the Migration Act?
•Should the matter be referred to the Minister for his intervention?
The Tribunal was not prohibited from considering any of these issues. Indeed, the second and third issues listed were the very questions that the Tribunal needed to address in order to carry out its statutory task. The first issue listed regarding the credibility of the applicants informed the Tribunal’s findings in relation to the second and third issues. It was not strictly speaking necessary for the Tribunal to consider referring the matter to the Minister so that the Minister could consider exercising his powers of intervention. However, this issued was raised on behalf of the applicants in a submission to the Tribunal. There was no disadvantage to the applicants by the Tribunal addressing this issue and it did not inhibit the Tribunal’s exercise of its statutory powers. Ground 3 does not establish jurisdictional error.
Ground 4 asserts that the Tribunal at [7] of its reasons limited the criteria for a grant of a protection visa and the Tribunal should also have considered case law and United Nations Convention principles. At [7] the Tribunal said:
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
This is an accurate summary of the criteria that the Tribunal needed to consider in this application. Since changes to the Migration Act were made in December 2014 by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Australia’s interpretation of its obligations under the Refugee Convention have been codified in the Migration Act: see in particular ss 5H and 5J. Likewise, Australia’s complementary protection obligations, although based on its obligations under international treaties, are found in the Migration Act: see, in particular, ss 5(1), 36(2)(aa) and 36(2A). While case law may inform how the criteria in the Migration Act should be interpreted or applied, it does not create additional criteria. The applicants have not identified anything said by the Tribunal at [7] of its reasons, or elsewhere, that suggests the Tribunal applied the criteria in the Migration Act in a manner that is inconsistent with the relevant definitions in the Migration Act or in a way which is inconsistent with the case law addressing the proper interpretation of the Act. Ground 4 does not establish jurisdictional error.
Ground 5 asserts that the Tribunal erred by proceeding on the basis that the review application was for merits review and suggests that instead the applicants should have been invited to submit fresh merits claims. It is unclear what the applicants intend by advancing this ground. It is abundantly clear from the Tribunal reasons that the applicants were not held to the information presented in the written application for protection and were able to present new claims and evidence to the Tribunal. For example, at [20] the Tribunal said:
Both applicants indicated and confirmed that they had never been involved in the Bersih movement, do not support it and do not fear return to Malaysia on this basis or on any other basis. They said they did not have any problems in Malaysia. Both indicated the protection visa application form had been written and submitted by Roslyn, without their knowledge and that they had actually come to Australia for the second named applicant to pursue her studies in cookery. They submitted that they had been misled and hoodwinked by Roslyn.
If by this ground the applicants are asserting that the Tribunal should have given them an opportunity to address the criteria for a student visa, the ground is misconceived. The Tribunal only had jurisdiction to conduct merits review of the decision to refuse to grant the applicants a protection visa. It had no power to treat the protection visa application as a student visa application and whether the applicants might meet the criteria for a student visa was entirely irrelevant to the application that it was actually considering. Ground 5 is not established.
Grounds 6, 7, 8, 9 and 10 are all related and can be addressed together. Each of the grounds proceeds on an assumption, which is not accurate, that the Tribunal did not consider the applicant’s claims for protection. The various grounds assert jurisdictional error on the basis that the Tribunal:
(d)failed to consider the applicants’ claims for protection once the applicants indicated that they were seeking a student visa (ground 6);
(e)failed to inform the applicants that they could proceed with their protection visa claims (ground 7);
(f)should have afforded the applicants a fresh hearing in relation to the review of the delegate’s decision refusing their protection visa application (ground 8);
(g)failed to consider that the applicants wanted a review of the refusal to grant them protection visas (ground 9); and
(h)engaged in an improper exercise of power by dismissing their merits review application without further consideration of the protection visa claims (ground 10).
The Tribunal took into account the evidence given by the applicants at the hearing and made findings in relation to their claims for protection. The Tribunal accepted the applicant’s evidence that they were not supporters of or involved in the Bersih movement and did not face any difficulties in Malaysia or fear returning to Malaysia. It therefore rejected the claims advanced in the protection visa application. The Tribunal did not accept that the applicants would face a real chance of persecution involving serious harm if they were to return to Malaysia and was not satisfied that there was a real risk that the applicants will suffer significant harm on their return to Malaysia. It therefore cannot be said that the Tribunal did not consider the applicants’ protection claims. The hearing that the applicants attended on 27 March 2017 was a hearing for the purpose of them giving evidence in relation to their protection claims. It was not necessary for the Tribunal to convene a further hearing. Grounds 6, 7, 8, 9 and 10 do not establish jurisdictional error.
CONCLUSION
As the applicants have not established that the Tribunal decision is affected by jurisdictional error, the application for judicial review is dismissed.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 April 2023
0
11
0