BTJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 90
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BTJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 90
File number(s): MLG 912 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 6 February 2025 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa – alleged fraud by migration agent upon Tribunal – allegation of fraud unsupported by evidence – no particulars of jurisdiction error – no error apparent - application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss 426A(1A)(b), 477(1), 441A(5) Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Hamod v New South Wales [2011] NSWCA 375
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69]
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
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
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of last submission/s: 21 January 2025 Date of hearing: 25 October 2024, 21 January 2025 Place: Melbourne Solicitor for the Applicant The Applicant appeared in person Solicitor for the Respondents Ms M Baras-Miller and Mr D Brown, Australian Government Solicitor ORDERS
MLG 912 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BTJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.The application for judicial review filed 9 April 2018 be dismissed.
4.The applicant pay the first respondents costs and disbursements of and incidental to the proceeding fixed in the amount of $6,000.00.
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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 5 March 2018. The Tribunal confirmed an earlier decision to dismiss the applicant’s review application and affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and marked exhibit “R1”.
BACKGROUND
The applicant is a citizen of Malaysia. The applicant first arrived in Australia on 6 September 2016 on an Electronic Travel Authority visa (CB 50).
On 22 December 2016, the applicant applied for the visa (CB 9).
On 31 March 2017, a delegate of the Minister refused to grant the applicant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations (CB 47).
On 21 April 2017, the applicant applied to the Tribunal and sought review of the delegate’s decision (CB 63-4).
TRIBUNAL DECISION
On 12 January 2018, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments (CB 69-70).
On 15 February 2018, the hearing before the Tribunal was held, however, the applicant did not appear (CB 71). The Tribunal decided to dismiss the review application without further consideration in accordance with s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act). On 16 February 2018, the Tribunal notified the applicant of its decision and advised that he may apply to reinstate the application by 1 March 2018 (CB 75).
On 5 March 2018, in the absence of an application for reinstatement, the Tribunal dismissed the applicant’s review application (CB 80). The Tribunal was satisfied that the applicant had been notified of the decision to dismiss the application, was properly advised that reinstatement of the application may be sought within 14 days and that a failure to apply within the 14-day period would result in confirmation of the dismissal decision (Decision) (CB 81).
PROCEEDINGS IN THIS COURT
On 9 April 2018, the applicant filed an application in this Court seeking judicial review of the Decision under s 477(1) of the Act. The application for judicial review contained two grounds (verbatim):
1.The decision of the Tribunal:
(a) is affected by an error of law; and
(b)denied the applicant procedural fairness.
2.The applicant has applied for a grant of legal assistance from Victoria Legal Aid and is awaiting a decision.
The application for judicial review was accompanied by an affidavit of the applicant affirmed 6 April 2018 which annexed the Tribunal decision record.
On 23 May 2024, a Registrar of this Court made orders which gave the applicant the opportunity to file an amended application for judicial review, written submissions and any additional evidence the applicant sought to rely on 28 days before the hearing. The applicant did not avail himself to that opportunity.
On 10 October 2024, the Minister filed an outline of submissions, and an affidavit of Mary Baras-Miller affirmed 10 October 2024. At the hearing before this Court, that affidavit was read, tendered and marked exhibit “R2”.
The application for judicial review was first heard before this Court at Melbourne on 25 October 2024. The applicant appeared in person and was assisted by an interpreter fluent in the English and Tamil languages. Ms Baras-Miller, solicitor, appeared on behalf of the Minister.
FIRST HEARING
At the hearing before this Court at Melbourne on 25 October 2024, the Court, as is customary when an applicant is self-represented, invited the applicant to explain why the Tribunal erred in dismissing his application for review.
The applicant raised for the first time entirely new matters and claimed that the application for the visa and the application for review by the Tribunal were initiated without his knowledge and that he did not receive any notification from the Minister or the Tribunal about his application for protection. He claimed that he first became aware that his application for protection was unsuccessful shortly before filing the application for judicial review in this proceeding after coming to Melbourne and seeking assistance from the Asylum Seeker Resource Centre in Footscray (ASRC).
The applicant claimed that he paid money to a person who completed his application forms for him. That person did not provide the applicant with any information or documentation, and it was not until much later that the applicant went to the ASRC to seek assistance as to the status of his application for a visa. It was only then that he discovered that the Tribunal had dismissed an application for review.
The applicant told the Court that when his Electronic Travel Authority visa was about to expire, he was told by a person that the expiration would “disappear” and that he would be granted an automatic extension of his visa for six months. The applicant was told by that person that he would likely need to apply for a new visa which would cost $4,800.00. The applicant told the Court that he had paid the person approximately $3,700.00 to prepare his visa application. He did not read the application because at that time, his ability to read the English language was poor. The applicant said that time, he did not have $4,800.00 to pay the person and did not know what happened to the application until he came to Melbourne much later and sought advice from other people.
The applicant submitted that he sought assistance from ‘Ethos Immigration’ who directed him to ASRC to help submit his application to the Court. Approximately two months after the ASRC lodged his application, “they gave [him] a visa”, and roughly one and half years later, he “came to this Court”. He said he was advised that the “judges were busy” and that it would take a further two to three years for his matter be heard.
The Court inquired whether the applicant recalled filing the visa application in December of 2016. In reply, the applicant said “when the person…prepared the visa, I did not know any English at all, he only got my signature, I later learned English and the second I went to Asylum Seeker Resource Centre, I did tell my actual story…because I didn’t know English, I don’t know what happened with that…the person who has prepared the applicant has cheated many people”.
The Court directed the applicant to the application for the visa and recited the applicant’s response to the question, “Why did you leave that country(s)?” where it was claimed (verbatim) (CB 40):
I was borrowed money from money lender. I cannot pay that money to money lender. he was get angry, and bully me. he was treaten me to kill. I was lives without peaceful. Always bully me. follow me everywhere. Im scared everyday. I mentally and fizically torture by him.
The applicant said that was not his story. The applicant said, “back home I had a gangster issue, my uncle wanted to protect me from my cousin, he told me that I’d be attending a wedding of a cousin but the main reason for me to leave was to escape the gangster issue…my uncle wanted to help me, but I did not have any debt related issues”.
The Court directed the applicant to the application to the Tribunal to review the delegate’s decision lodged on 21 April 2017 (CB 63-4). The applicant informed the Court that he didn’t personally submit the review application to the Tribunal and that it was likely that the person who assisted him had lodged it. He submitted that this person did not inform him that he had an upcoming hearing.
The Court directed the applicant’s attention to the contact details in the review application to the Tribunal (CB 63). The applicant then rhetorically asked the Court whose details they were and claimed that he did not receive any emails from the Tribunal. The Court referred to a letter from the Tribunal addressed to the applicant dated 12 January 2018 inviting him to attend a hearing on 15 February 2018 (CB 69). The applicant told the Court he did not receive this. The Court directed the applicant to another letter from the Tribunal dated 16 February 2018 notifying him of the Tribunal’s decision to dismiss the application (CB 75). The applicant claimed that he did not receive this either.
The applicant told the Court he also did not receive the Tribunal’s decision record, and the Court inquired as to how the applicant discovered that his application for the visa was refused (CB 77). The applicant submitted that he did not receive any notification whatsoever and that he eventually approached ASRC to further investigate the status of his application. When asked when the applicant sought this assistance, the applicant said around six to seven months “earlier”.
The Court referred the applicant to his application for judicial review filed in this Court on 17 April 2019 (CB 2). The applicant submitted that the email address listed on the application was missing a character, hence why he did not receive any correspondence from the Court and had to visit the Court to inquire about his matter. The applicant further submitted that the ASRC completed the application on his behalf. The Court directed the applicant to his affidavit accompanying the application for judicial review affirmed 6 April 2018, noting that it contained two signatures (CB 7-8). The applicant confirmed that ASRC also prepared the affidavit, and he had signed it.
The Court confirmed with the applicant that he attended a hearing before a Registrar of this Court and inquired whether he received any correspondence from the Court recently. The applicant confirmed that he had received some correspondence by post to his residential address and documents sent to his new email address.
The applicant’s assertions were not supported by any documentary or other evidence and were to say the least confusing, vague and previously undisclosed. The applicant was adamant that he had been deceived about his application for the visa and had no knowledge of proceedings before the Tribunal. His assertions suggested a fraud on the Tribunal and that his application for a protection visa was fabricated by a third party.
When later asked the name of the person that assisted and cheated him the applicant said that he knew him only by the name of “Melbourne Joe”.
Noting the seriousness of these new allegations and that the applicant was unrepresented, the Court was concerned not to deny the applicant a further opportunity to seek advice and submit evidence in admissible form to substantiate these new claims.
Ms Baras-Miller on behalf of the Minister, was understandably critical of these new assertions that were not substantiated by any evidence. Ms Baras-Miller also referred to the orders made by Registrar Cummings on 23 May 2024 requiring the applicant to file any amended application for judicial review, further evidence and submissions before the hearing, which the applicant did not comply with. The Minister’s position was that the hearing should proceed and repeated the submissions in the Minister’s outline of submissions that there was no jurisdictional error identified in the application for judicial review and that the Tribunal complied with the statutory obligations of procedural fairness. However, the Minister could not identify any prejudice, save as to costs and further delay, if an adjournment was granted to allow the applicant to seek advice and put evidence before the Court.
The Court adjourned the hearing until 21 January 2025 and made directions that the applicant file and serve any further affidavits upon which he wished to rely in support of his application, together with a written outline of submissions. The Court urged the applicant to seek legal advice and emphasised the need to establish his claims with evidence by affidavit. The Court also warned the applicant that if he did not do that which had been ordered and provide evidence of his claims, then the Court would view his case very differently at the second hearing. The Court explained that a further affidavit from the applicant would need to explain everything including what happened with his application for the visa, the application to the Tribunal and everything else he submitted to the Court at the first hearing. He would also need to identify the person that misled him and name that person in an affidavit.
The applicant did not file and serve any further evidence or submissions.
SECOND HEARING
The hearing of the application for judicial review resumed on 21 January 2025 before this Court at Melbourne. After difficulties securing an interpreter, the hearing proceeded with the applicant assisted by an interpreter fluent in the English and Tamil languages.
Mr Brown, solicitor, appeared on behalf of the Minister.
APPLICANT’S SUBMISSIONS
The applicant claimed that he had made inquiries of the Malaysian Police about threats made against him by gangsters, but the police had refused to help because it would reflect poorly on Malaysia. The applicant said he had been unable to obtain legal advice because lawyers were too expensive and would not help him.
The applicant again claimed that he did not receive correspondence from the Minister, the Tribunal or the Court.
The Court canvassed the possibility of giving the applicant the opportunity to give oral evidence, but that course was opposed by the Minister, and understandably so, when the scope of any evidence was unknown and may lead to a further adjournment to allow the Minister to investigate any new, unarticulated allegations and then properly cross examine the applicant. Mr Brown correctly and fairly observed that the applicant had been given numerous opportunities and considerable time to put evidence before the Court and had failed to do so. The Minister was entitled to have fair notice of the applicant’s evidence or likely evidence, and the Minister would now be prejudiced in responding to that evidence. In the circumstances, the Court considered that it was not procedurally fair or in the interests of justice to allow the applicant to give oral evidence in circumstances where the previous orders of the Court were not complied with and the assertions made by the applicant were vague, inconsistent and confusing.
The Court asked the applicant if there was anything further he could say about the Decision and why it was wrong. The applicant submitted that he did not receive help from this country or Malaysia to help him make submissions. He claimed that he tried to contact lawyers but they were asking for money that he could not afford.
MINISTER’S SUBMISSIONS
Mr Brown relied on the Minister’s outline of submissions filed 10 October 2024 and the supplementary written submissions dated 13 January 2025. The Court Book prepared by the Minister’s solicitors was tendered and marked exhibit “R1”. The affidavit of Ms Baras-Miller affirmed 10 October 2024 was read, tendered and marked exhibit “R2”.
The Minister’s submissions were concise. There was no jurisdictional error by the Tribunal when dismissing the applicant’s application for review for non-appearance. The Tribunal complied with the statutory obligations of procedural fairness and sent relevant correspondence to the email address provided by the applicant as it was entitled to do. The Act deemed delivery to be effective and the Tribunal was not put on notice of any irregularity.
The decision of SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 (SZRUR) was referred to in the Minister’s outline of submissions, where the Full Court of the Federal Court considered whether the Federal Circuit Court denied the applicant procedural fairness in relation to allegations he had made about the fraudulent conduct of his migration agent. SZRUR alleged in the grounds of review that his migration agent did not inform him of the date of the hearing before the Tribunal and that the applicant was denied “natural justice” by the Tribunal by dismissing the review for non-appearance. No affidavit was provided by SZRUR to support this claim. The Federal Circuit Court did not give the applicant the opportunity to give oral evidence to substantiate his claims and dismissed the application for judicial review due to want of evidence. The Full Federal Court found that there had been a denial of procedural fairness in that case because the applicant was denied the opportunity to give evidence about his claims of fraud and was not given an adequate explanation of the procedures of the Court.
The Minister submitted that no such issue of procedural fairness arose in the present case. This was because the applicant did not raise any allegation of fraud against the third party until appearing before this Court on 25 October 2024, despite filing his application for judicial review six and a half years prior. He did not provide an explanation as to why this was not included in his application, nor did he file any submissions or evidence relevant to this allegation since Registrar Cummings’ orders made 23 May 2024. Further, the Court explained at the first hearing what was required of the applicant if he wanted to make good his assertions and encouraged him to obtain legal advice and provide evidence by affidavit to substantiate his claims. The applicant elected not to submit any further materials for consideration by this Court and there was no evidence to suggest that the applicant sought legal advice or that advice was not available to him.
Mr Brown further submitted that the applicant’s claims that he did not know what was included in the visa application and that an agent assisted him were inconsistent with his visa application form, in which the applicant recorded that he received no assistance (CB 18). Further, the applicant’s review application lodged with the Tribunal did not identify any other person as assisting him with applying for the review (CB 63). Mr Brown submitted that fraud on the Tribunal was a serious allegation that must be clearly alleged and strictly proven (see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69] and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35) and the applicant had failed to properly allege any fraud, identify the fraudster, or explain why the applicant was not complicit in or indifferent to the alleged fraud.
Mr Brown submitted that the Court should reject the applicant’s bare assertions and dismiss the application for judicial review with costs.
CONSIDERATION
The Tribunal dismissed the applicant’s application for review of the delegate’s decision pursuant to s 426A(1A)(b) of the Act because the applicant did not appear on the day on which or at the time and place at which the applicant was schedule to appear. The Tribunal was satisfied that the applicant was properly invited to attend a hearing in accordance with s 441A(5) of the Act (CB 77).
The Tribunal then notified the applicant in writing of that decision to the email address provided in the application for review (CB 75). That notification included instructions on how to apply for reinstatement in writing by 1 March 2018 (see exhibit “R2”). No application for reinstatement was received by the Tribunal.
On 5 March 2018, the Tribunal decided to confirm the decision to dismiss the application (CB 80-1). It did so in writing, again sent to the address for service given in the application for review.
On 9 April 2018, the applicant lodged an application for judicial review within the time prescribed by s 477(1) of the Act.
There is a case note prepared by an officer of the Tribunal on 6 April 2018 recording a conversation with “Nick” from the ASRC, stating that the applicant did not receive the invitation to the hearing and notification of initial dismissal of the review application (CB 82). A further copy of the Decision was then sent by the Tribunal to a different email address (CB 83). That email referred to the conversation with “Nick “from the ASRC.
The timing of that request and the subsequent application to this Court on 9 April 2018 is curious in circumstances where the applicant now claims that he did not receive correspondence from the Tribunal. The Court draws no inferences, however, there is simply no evidence before this Court that the application for the visa and the application for review to the Tribunal were not authorised by the applicant. Nor that the addresses given to the Minister and the Tribunal were incorrect, or that the applicant was not aware of the grounds upon which he applied for a protection visa and that the decision to refuse the visa was the subject of review by the Tribunal.
There is also no evidence before this Court of any fraud on the Tribunal or in submitting the application for the visa.
The grounds of review in the application for judicial review filed 9 April 2018 do not provide any particulars of jurisdictional error. The error of law alleged is not identified and the denial of procedural fairness is not explained. A failure to particularise grounds of review is a sufficient basis for dismissing an application for review (see WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and on appeal WZATH v Minister for Immigration and Border Protection [2014] FCA 969 and DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4] per Gilmore J).
Further, on the evidence contained in the Court Book, there was no jurisdictional error by the Tribunal in dismissing the application for review and subsequently confirming the decision under review pursuant to s 426A(1E) of the Act.
The Court has reviewed the evidence contained in the Court Book and the affidavit of Ms Baras-Miller affirmed on 10 October 2024 and no material jurisdictional error is apparent (see MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [112]-[114] per Mortimer J).
The applicant made serious allegations of fraud and dishonesty by third parties without any supporting evidence and asserted that he was not aware of any application to the Tribunal, nor was he notified of the outcome of it. Those assertions were not substantiated, despite opportunities to amend the application for judicial review and submit evidence by affidavit. The application for judicial review was also prepared with some assistance from the ASRC. The application for judicial review and the affidavit in support did not refer to a lack of notification or want of authority or suggest any fraud.
The applicant’s most recent assertions were not established by evidence despite the Court providing the applicant with a further opportunity to do so. The assertions made by the applicant were inconsistent, vague and often confusing. At the second hearing, the applicant sought to allude to different and new claims for protection, the substance of which was unclear.
The Court considered the decision of the Full Federal Court in SZRUR, in particular, the reference in that case at [37] (per Robertson J) to the New South Wales Court of Appeal decision in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]. This Court has endeavoured to strike the delicate balance between aiding an unrepresented litigant and ensuring a fair trial for all parties. The new claims made by the applicant from the bar table at both the first and second hearing were not substantiated in any form or with any documentation or other evidence to suggest they may have merit. The applicant was given guidance as to the requirement that he provide evidence of his claims in affidavit form before the second hearing and urged to obtain legal advice. An adjournment of the hearing was provided to allow the applicant to present his claims in proper form. The applicant did not do so, and he has provided no evidence of his attempts to obtain legal advice or proof that the addresses given in the application for visa and the application for review to the Tribunal were not his. There was also no explanation as to how the applicant first knew of the outcome of the review by the Tribunal or how he came to seek the assistance of the ASRC in April 2018. There was no evidence of why the applicant did not make inquiries as to the status of his visa application during the period from December 2016 until April 2018 or of any active engagement by the applicant with this proceeding after it was commenced on 9 April 2018. There was no evidence of any attempt by the applicant to comply with the orders of this Court made on 25 October 2024 or of his inability to secure legal advice in any form. The applicant was invited at the second hearing to provide the Court with any documents that may assist or substantiate his case, and nothing was forthcoming. The Court was not prepared in the circumstances of this case to allow the applicant to give oral evidence at the second hearing of claims that could not be substantiated by documentary evidence and properly challenged or contradicted by the Minister without proper notice. The applicant was given an opportunity at the first hearing to substantiate his new claims, however, there is no evidence that the applicant took any steps to seize that opportunity.
The applicant has not established any error of law, procedural unfairness or other reason to remit this matter for reconsideration by the Tribunal in accordance with law. The application for judicial review filed 9 April 2018 is dismissed.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs which is the current Ministerial title.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent should also be amended to the Administrative Review Tribunal.
COSTS
Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review (including the costs of the first and second hearing) in the sum of $6,000.00, which is less the scale amount provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth). The sum claimed is fair and reasonable, if not generous in the circumstances of this case.
ORDERS
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent be amended to Administrative Review Tribunal.
The application for judicial review filed 9 April 2018 be dismissed.
The applicant pay the first respondents costs and disbursements of and incidental to the proceeding fixed in the amount of $6,000.00.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 6 February 2025
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