BYJ20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 51
Federal Circuit and Family Court of Australia
(DIVISION 2)
BYJ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 51
File number: SYG 541 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 1 February 2023 Catchwords: PRACTICE AND PROCEDURE – whether self-represented applicant who alleges fraud on the Tribunal should be given further opportunity to adduce evidence – where document relevant to applicant’s fraud claim and which is subject to s 376 certificate of Migration Act 1958 (Cth) not before the Court – directions for filing of further evidence and submissions made and hearing relisted to another date Legislation: Migration Act 1958 (Cth) s 376 Cases cited: SDFDE 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: 22 Date of hearing: 25 January 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearances, save as to costs Solicitor for the Respondents: Minister Ellison Lawyers ORDERS
SYG 541 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYJ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
25 January 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.By 4.30pm on 22 February 2023, the applicant is to file and serve:
(a)any evidence on which he proposes to rely to support his allegation of interpretation error at the hearing before the second respondent;
(b)any evidence on which he proposes to rely to support his allegation of fraud on the second respondent; and
(c)any written submissions.
3.By 4.30pm on 22 February 2023, the first respondent is to file and serve:
(a)an affidavit annexing or exhibiting the documents before the second respondent which were subject to a certificate issued under s 376 of the Migration Act 1958 (Cth); and
(b)if the first respondent claims public interest immunity over any document, written submissions in support of that claim.
4.The first respondent has leave to file and serve any evidence or written submissions in response to any documents filed by the applicant in accordance with order 2 by 4.30pm on 8 March 2023.
5.The applicant has leave to file and serve any evidence or written submissions in response to any documents filed by the first respondent in accordance with order 3 by 4.30pm on 8 March 2023.
6.The application be listed for hearing by video at 2:00pm AEDT / 11:00am AWST on 15 March 2023.
7.Written reasons for the orders made today will be provided from chambers at a later date.
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
The applicant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal), affirming a decision made by a delegate of the Minister not to grant him a partner visa, came before the Court for final hearing on 25 January 2023. On that occasion, I did not hear submissions on the grounds of application and instead made the following orders:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.By 4.30pm on 22 February 2023, the applicant is to file and serve:
(a)any evidence on which he proposes to rely to support his allegation of interpretation error at the hearing before the second respondent;
(b)any evidence on which he proposes to rely to support his allegation of fraud on the second respondent; and
(c)any written submissions.
3.By 4.30pm on 22 February 2023, the first respondent is to file and serve:
(a)an affidavit annexing or exhibiting the documents before the second respondent which were subject to a certificate issued under s 376 of the Migration Act 1958 (Cth); and
(b)if the first respondent claims public interest immunity over any document, written submissions in support of that claim.
4.The first respondent has leave to file and serve any evidence or written submissions in response to any documents filed by the applicant in accordance with order 2 by 4.30pm on 8 March 2023.
5.The applicant has leave to file and serve any evidence or written submissions in response to any documents filed by the first respondent in accordance with order 3 by 4.30pm on 8 March 2023.
6.The application be listed for hearing by video at 2:00pm AEDT / 11:00am AWST on 15 March 2023.
7.Written reasons for the orders made today will be provided from chambers at a later date.
These reasons are those referred to in order 7 above explaining why the Court made these orders.
Reasons for orders
Grounds of application and lack of evidence in support of grounds
The applicant relies on an amended application filed on 12 May 2022. The amended application was prepared by a lawyer who was on the record for the applicant at that time, but who is no longer representing the applicant in this proceeding. There are two grounds set out in the application, which are reproduced without alteration:
1.The Administrative Appeals Tribunal (“Tribunal”) fell into jurisdictional error because the interpreters’ translations were inadequate and caused the applicant to misunderstand the Tribunal.
Particulars
a.At [29] the Tribunal said, “Asked if he wanted more time to provide additional evidence to support his claims the applicant told the Tribunal that he had no further evidence to provide”.
b.The applicant asserts that he misunderstood the question referred to by the Tribunal at [29] due to the interpreter’s inadequate translation.
c.Accordingly, the applicant was denied procedural fairness.
d.Accordingly, the applicant was denied an opportunity to properly present arguments and evidence.
e.Accordingly, the decision-making process miscarried.
2.The Tribunal’s jurisdiction remains constructively unexercised as a result of a fraud on the Tribunal.
Particulars
a.At [26] the Tribunal noted that it “put to the applicant that the sponsor had informed the department that they had separated in March 2016 and that the marriage had been contrived for the purposes of a migration outcome”.
b.At [26] the Tribunal noted that it put to the applicant that “it appeared that the sponsor was not committed, having also claimed that the marriage was not only over but contrived”.
c.The information conveyed to the Tribunal about the marriage being contrived for the purposes of a migration outcome was false.
d.The person who conveyed to the Tribunal the above information was not the sponsor.
e.The person who conveyed to the Tribunal that information had misled the Tribunal as to their identity and the fact that marriage was contrived.
f.At [35] the Tribunal found that the parties “were not, and are not, in a genuine, ongoing and exclusive spousal relationship”.
g.The misleading information giving to the Tribunal was relevant to the Tribunal’s finding at [35].
h.The legislative scheme to afford natural justice to the applicant was thereby stultified, and the Tribunal’s jurisdiction remains constructively unexercised: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [49], [52].
The applicant did not file any evidence to support either ground. At the hearing on 25 January 2023 the applicant, who appeared for himself and who was assisted by an interpreter, confirmed that he continues to advance both grounds.
At the hearing on 25 January 2023, I explained to the applicant that neither ground can succeed without evidence.
In relation to ground 1, I explained to the applicant that I cannot find that the interpreter made an error in the absence of any evidence of the error allegedly made. I explained that parties claiming interpretation error will often provide evidence from a qualified interpreter attaching a transcript of the Tribunal hearing showing what was said, how it was interpreted at the hearing, and how it should have been interpreted.
Ground 2 alleges fraud on the Tribunal. A decision may be affected by jurisdictional error for fraud on the Tribunal where a third person engages in fraudulent conduct which disables the Tribunal from the due discharge of its statutory functions in relation to the conduct of the review: see SDFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [51]. I explained this to the applicant at the hearing, albeit in somewhat simplified terms. I explained to the applicant that I cannot make a finding of fraud without evidence. I asked him to tell me the basis for his assertion that it was not the sponsor who gave information to the Department that the applicant and sponsor separated in 2016 and that the marriage was contrived for a migration outcome. The applicant told me that he asked the sponsor and she said that she did not say those things to the Department. He also told me that the sponsor would be available to give evidence in this proceeding, and that he would like a further opportunity to provide evidence. Based on this discussion, I was satisfied that the applicant might, if given a further opportunity, be able to provide evidence to support his allegation of fraud.
Court’s procedural fairness obligation in judicial review applications where a self-represented litigant raises fraud
In SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 (SZRUR), the Full Court considered the procedural fairness obligations that a court has to a self-represented litigant who raises an allegation of fraud in a judicial review proceeding. In that case, the Full Court found, in effect, that a court should give a self-represented applicant information about the court procedures (including that assertions from the bar table will not be treated as evidence) and the evidence required to establish the serious allegations of fraud, and give an applicant an opportunity to give sworn evidence if he or she chooses: SZRUR at [39]-[40] (per Robertson J), [53]-[54] (per Allsop CJ) and [58]-[60] (per Mortimer J).
Mindful of these obligations, I indicated to the parties that I proposed to give the applicant a further opportunity to adduce evidence, and that I would hear from the parties as to whether that should be by having the applicant sworn and giving him an opportunity to provide oral evidence at the hearing, or by adjourning the hearing to give the applicant a further opportunity to provide affidavit evidence.
Manner of affording procedural fairness to the applicant
The applicant expressed a preference for the hearing to be adjourned to a different day to allow him to file evidence.
Mr Reilly submitted that it would not be appropriate to give the applicant a further opportunity to adduce evidence, noting that the applicant did not appear to have taken steps to obtain evidence of a document covered by a certificate issued under s 376 of the Migration Act 1958 (Cth) (Migration Act) (see discussion below) and the applicant did not comply with an Order made by a Registrar of the Court on 22 March 2018 requiring the applicant to file and serve any evidence on which he relies by 12 July 2018.
Mr Reilly also submitted that it does not appear that applicant actually contested that the relationship broke down, identifying that the applicant told the Tribunal that he was in fact attempting to reconcile with the sponsor. Mr Reilly submitted that even if something was said to the Department incorrectly, that would not amount to fraud on the Tribunal as the Tribunal was simply acting on the basis of what was put to the Department, and the application on its face is nothing more than a bare assertion with no evidence in support.
Mr Reilly submitted that the principles in SZRUR do not require that an applicant be granted an adjournment through any claim of fraud no matter how unwarranted it is on its face. Mr Reilly reiterated that the applicant’s claim is no more than an allegation without any apparent support in the material before the Court and contrary to the applicant’s own evidence that the relationship had ceased though he was attempting to reconcile.
In my view, it is appropriate to grant the applicant a further opportunity to adduce evidence and, in the particular circumstances of this case, the preferable course is to adjourn the hearing to a different date and to give the applicant an opportunity to file affidavit evidence.
While it is true that, at present, the allegation of fraud is a bare assertion not supported by evidence, and the applicant ought to have provided evidence in accordance with the Court’s orders (or at least should have sought a further opportunity to adduce evidence when the allegation of fraud was raised in the amended application), that does not amount to a reason not to give the applicant a further opportunity to adduce evidence in the present case. The obligation to afford procedural fairness to a party does not arise only where the party has a strong prima facie case. The allegation of fraud is expressly articulated in the application. It clearly cannot succeed based on the evidence currently before the Court, but the purpose of affording the applicant procedural fairness is to give him an opportunity to adduce evidence which might support the ground. The applicant has indicated to the Court that the basis of his assertion of fraud is that the sponsor told him that she did not provide the adverse information. If the sponsor gives evidence to the Court under oath or affirmation that it was not her who provided the adverse information to the Department, and the Court accepts that evidence, then the applicant may have an arguable case, notwithstanding the other matters that Mr Reilly raised in the submissions summarised above.
There are two main reasons why I considered it to be preferable to adjourn the hearing, rather than inviting the applicant to give oral evidence at the hearing on 25 January 2023. The first is the applicant’s indication that he proposes to lead evidence from the sponsor. The sponsor is not a party to this proceeding and was not required to appear at the hearing on 25 January 2023. It is appropriate that she be given a fair opportunity to consider whether she is willing to give evidence in Court and what evidence she can relevantly provide. It is also preferable that both parties have an opportunity to consider any affidavit evidence ahead of the hearing.
The second reason I considered it to be preferable to adjourn the hearing to a different day, rather than hear oral evidence from the applicant on 25 January 2023, is that there is a document that was before the Tribunal, and which I consider may be relevant to ground 2, which is in the Minister’s possession, power or control and which is not in evidence before the Court. This is discussed further below. It would be preferable to have all relevant evidence before the Court prior to any cross-examination of the applicant or any other witness.
Relevant evidence in the Minister’s possession, power or control
It can be seen from ground 2 as pleaded that the applicant’s assertion is that the sponsor was not the person who provided information to the Tribunal that the applicant and sponsor separated in 2016 and that the marriage was contrived for a migration outcome.
The information that the applicant and sponsor separated in 2016 and that the marriage was contrived for a migration outcome was information purportedly provided by the sponsor to the Department. The Secretary provided the information to the Tribunal and the document in which the information was included was subject to a certificate issued under s 376 of the Migration Act. The Tribunal decision records that a copy of the certificate was provided to the applicant and that the gist of the information was disclosed to the applicant, but it does not appear that the applicant was provided with a copy of the document to the subject of the s 376 certificate.
A copy of the s 376 certificate is included in the court book that has been filed by the Minister. Mr Reilly confirmed that the document the subject of the s 376 certificate is not in evidence before the Court, possibly because there may be a claim for public interest immunity, and he conceded that it may be relevant to the Court’s consideration of ground 2.
In my view, it is appropriate that the document containing the information that was purportedly provided by the sponsor to the Department be in evidence before the Court. While I acknowledge Mr Reilly’s submission that the applicant has been aware of the existence of the document for some years now and has not sought a copy even when he was represented by a lawyer, the document is in the Minister’s possession, power or control and it is appropriate that the Minister take steps to put the document before the Court. If the Minister claims public interest immunity over the document, the document can be provided as a confidential annexure or exhibit to an affidavit pending the resolution of any claim for public interest immunity.
Conclusion
Taking into account the various considerations discussed above, I considered it appropriate to adjourn the hearing to 15 March 2023 and make the orders set out at [1] above.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 February 2023
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