CBV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 184
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CBV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 184
File number(s): MLG 983 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 24 March 2022 Catchwords: MIGRATION – Judicial review – decision of the Immigration Assessment Authority – Temporary Protection (Subclass XD-785) visa – citizen of Iran – where failure to particularise – notification requirements – alleged third party fraud on the Authority – whether fraud on the Authority established – whether jurisdictional error
EVIDENCE – evidentiary requirements for fraud – whether fraud on the Authority established
Legislation: Evidence Act 1995 (Cth) s 140
Migration Act 1958 (Cth) Pt 7AA, Div 3, ss 5H, 36, 65, 66, 473CB, 473DA, 473DB, 473DC, 473FB, 473GA, 473GB, 474, 476, 494B
Migration Regulations 1994 (Cth) reg 2.16
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJ 100
Chan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308
Commonwealth & Anor v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; (2012) 287 ALR 267; (2012) 126 ALD 10
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; (1999) 73 ALJR 1274; (1999) 164 ALR 548
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; (2003) 77 ALJR 1829; (2003) 201 ALR 327; (2003) 76 ALD 1
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WZARX v Minister for Immigration and Border Protection [2014] FCA 423
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submission/s: 22 February 2022 Date of hearing: 22 February 2022 Place: Perth The Applicant: Appeared in person with the assistance of a Farsi interpreter Counsel for the First Respondent: Ms I. Ward Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 983 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CBV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1.The originating application filed 15 May 2017 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The application before the Court was filed by the applicant, CBV17, in the Melbourne Registry of the Court on 15 May 2017 under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) (“Judicial Review Application”). The Judicial Review Application concerns a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down 21 April 2017. The Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant CBV17 a Temporary Protection (Subclass XD-785) visa (“Protection Visa”).
The Judicial Review Application contains three grounds, however, the third ground, “Further particulars will be provided after service of the court book”, is merely an indication that CBV17 intends to provide further particulars (which he did not do) and is not itself a ground of review. The remaining two grounds of review are set out below at [18] (ground 1) and [23] (ground 2).
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 188 pages (“Exhibit 1”);
(b)the affidavit of CBV17 affirmed 15 May 2017 annexing the Authority Decision (“CBV17 Affidavit”);
(c)CBV17’s written submissions filed, almost two months out of time, on 30 December 2021, and, hence, filed after the Minister’s submissions (“CBV17’s Written Submissions”);
(d)the Minister’s written submissions filed 23 December 2021 (“Minister’s Written Submissions”); and
(e)the affidavit of Tareena Martin affirmed 23 December 2021 annexing the following:
(i)email from CBV17 to the Department dated 8 July 2016 (attachment(s) not reproduced);
(ii)email from the Department to CBV17 dated 7 November 2016;
(iii)identity document(s);
(iv)registered post envelope sent to CBV17’s migration agent; and
(v)fact sheet attached to the Authority Decision dated 21 April 2017.
JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Judicial Review Application is as follows:
(a)CBV17, a citizen of Iran, arrived on Christmas Island as an unauthorised maritime arrival on 10 April 2013: CB 143;
(b)on 27 May 2016 CBV17 lodged an application for a Protection Visa: CB 21-61;
(c)on 15 November 2016 CBV17 attended an interview with the Delegate (“Department Interview”): CB 137-139;
(d)CBV17 made the following claims (see CB 56-57, 107-108 and 128):
(i)he is of Arab ethnicity;
(ii)as a young person in Iran he had to adhere to the rules as young people were often stopped in the street due to their hairstyle, clothing or appearance;
(iii)he was arrested by the police and detained and told they were searching for drugs, but was released as they did not find anything;
(iv)in 2011 he had a sexual relationship with a married woman, who was from a different Arab tribe to CBV17. Her husband found out about the relationship and threatened him.
(v)he is now the subject of an honour killing because he slept with a married woman; and
(vi)he moved from Shush to Yazd to escape the woman’s family but two years later people came looking for him. He feared for his life and he believed they were from the woman’s tribe;
(e)on 16 January 2017 the Delegate’s Decision was to refuse to grant CBV17 a Protection Visa: CB 140-150. On the same date, the letter giving notification of the refusal to grant the Protection Visa (“Notification of Refusal letter”) and the Delegate’s Decision were mailed to CBV17’s migration agent.;
(f)on 19 January 2017 the Delegate’s Decision was referred to the Authority for review. On the same date, a letter acknowledging the referral was mailed to CBV17 (“Acknowledgement of Referral letter”): CB 155-156; and
(g)on 21 April 2017 the Authority affirmed the Delegate’s Decision not to grant CBV17 a Protection Visa: CB 164-173.
Authority Decision
In the Authority Decision the Authority:
(a)had regard to the information referred by the Secretary under s 473CB of the Migration Act and recorded that no further information was obtained or received: CB 166 at [3];
(b)concerning the claims of adultery and the blood feud:
(i)accepted that CBV17 was involved in a relationship with a woman for around seven months: CB 167 at [10];
(ii)accepted that the woman’s family was angry with CBV17 for having an affair and that members of her family came to CBV17’s house to threaten him: CB 168 at [11]-[12];
(iii)accepted that CBV17’s family may have been angry with him: CB 168 at [12];
(iv)accepted that CBV17 moved to Yazd because the woman’s brothers and cousins came to his house: CB 168 at [13];
(v)having regard to country information, found that CBV17 had not directly claimed to fear harm from the Iranian authorities as a result of his affair with the woman: CB 168-169 at [14]-[15];
(vi)found that CBV17 was generally credible, but that there was nothing before it to suggest that CBV17 had any outstanding court case in Iran concerning the relationship and considered this aspect of his claim to be “speculative”: CB 169 at [15];
(vii)was not satisfied that the woman’s family reported the relationship to the authorities in Iran, and found that if there was any outstanding legal action pending in Iran that his family would have informed him of this: CB 169 at [15];
(viii)was not satisfied that the authorities in Iran had any interest in CBV17 by reason of his relationship with the woman: CB 169 at [15];
(ix)was not satisfied that CBV17 would face a real chance of serious harm from the Iranian authorities on the basis of committing adultery: CB 169 at [16];
(x)accepted that CBV17 and the woman were from different tribes, and that the woman’s brothers and cousins threatened him, but it was not satisfied that the woman’s family had sought CBV17 out after the incident in 2011: CB 169 at [17]; and
(xi)found that CBV17 lived in Yazd without incident for two years, and that the incident involving the woman’s husband happened six years ago, and it was not satisfied that there was any ongoing blood feud as a result of CBV17’s relationship with the woman, and was, therefore, not satisfied that CBV17 faced a real chance of serious harm for this reason: CB 169 at [17];
(c)concerning claims based on ethnicity:
(i)based on country information, was prepared to accept that CBV17 was stopped and arrested by police, searched for drugs then released and was prepared to accept that this could have been a result of his Arab ethnicity: CB 170 at [19]-[20];
(ii)found that apart from the above one-off incident, that CBV17 had not claimed to have suffered any other incidents of harm as the possible result of his ethnicity: CB 170 at [20];
(iii)was not satisfied that CBV17 had engaged in anti-regime activities or demonstrations that would have brought him to the attention of the Iranian authorities: CB 170 at [20];
(iv)accepted that Arabs can suffer from societal harassment and discrimination and that CBV17 may also have suffered harassment and discrimination as the result of his ethnicity as an Arab, and may do so again upon return, but was not satisfied that CBV17 would suffer serious harm on the basis of his Arab ethnicity: CB 170 at [20]; and
(v)was not satisfied CBV17 would engage in any political activity or in vocalising any Arab cultural or political rights, not due to fear of harm or behaviour modification, but because of a lack of enthusiasm, interest and commitment: CB 170-171 at [21];
(d)regarding young people and dress:
(i)found that CBV17 had not elaborated on the style of hair or clothing he would like to wear but was prepared to accept that some articles of clothing or haircuts he may choose could be construed as western or un-Islamic by the authorities: CB 171 at [23]-[26]; and
(ii)accepted that wearing clothing considered western or un-Islamic and styling hair in a similar manner would attract low-level harassment but found that this would not amount to serious harm: CB 171 at [26];
(e)noted that CBV17 had not raised any fear of harm on the basis of having sought asylum in Australia and found that it was not satisfied that there was a real chance of serious harm for this reason: CB 172 at [27];
(f)having considered CBV17’s claims singularly and cumulatively, found that CBV17 did not have a well-founded fear of persecution and did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act, and was therefore not satisfied that he met s 36(2)(a) of the Migration Act: CB 172 at [28]-[29];
(g)regarding complementary protection accepted that:
(i)persons of Arab ethnicity face societal discrimination, but was not satisfied that there was a real risk that CBV17 would be subject to the death penalty, would be arbitrarily deprived of his life, or that he would be subject to torture, cruel and inhuman treatment or degrading treatment and punishment, and was not satisfied that the societal discrimination was a form of harassment that amounted to significant harm as defined in the Migration Act: CB 172 at [32];
(ii)CBV17 had been in an adulterous relationship, but relying on its anterior findings found that he did not face a real risk of significant harm on this basis: CB 172 at [33]; and
(iii)CBV17 may not wear clothing that would be perceived to be nonconformist, western or un-Islamic out of fear of the possible consequences of doing so, and that this would constitute low-level harassment from the Iranian authorities, but was not satisfied that such harassment amounted to significant harm as defined in the Migration Act, and, further, that the inability to wear whatever item of clothing CBV17 may wish to wear, or to style his hair in any manner, would not amount to significant harm: CB 172-173 at [34];
(h)relying on its anterior findings, was not satisfied that CBV17 faced a real risk of significant harm on the basis of his political opinion or applying for asylum in Australia: CB 173 at [35]; and
(i)having considered CBV17’s claims individually and in combination, was not satisfied that CBV17 would face a real risk of significant harm to CBV17 if he returned to Iran, and found that he did not meet s 36(2)(aa) of the Migration Act: CB 173 at [36].
Litigation History
The relevant litigation history of the matter in this Court is as follows:
(a)on 15 May 2017 CBV17 filed the Judicial Review Application in the Melbourne Registry of this Court (then styled the Federal Circuit Court of Australia);
(b)on 22 November 2017 consent orders were made by a Registrar in the Melbourne Registry of this Court programming the matter and listing it for hearing on 2 April 2020 before Judge Kelly in Melbourne;
(c)on 3 September 2019 an email was sent to the parties from the Chambers of Judge Kelly attaching a “Letter of Adjournment” which stated as follows:
Please note that this proceeding has been transferred to the Melbourne Migration Docket.
The parties will be notified in due course of a new listing date in the Federal Circuit Court of Australia.
however, the Court’s records indicate that the matter was actually transferred to the National Migration Docket; and
(d)due to well-known and acknowledged significant delays in allocating migration judicial review applications in the Melbourne Registry of this Court to a Judge for hearing: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev, in August 2021 the matter was transferred to the Perth Registry and listed before the Court as presently constituted on 1 September 2021 for a directions hearing, whereat orders were made listing the matter for hearing on 22 February 2022.
Jurisdictional error required
This Court may set aside the Authority Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Authority:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material
in such a way that the Authority’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Authority under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain, very limited, circumstances, a denial of procedural fairness by the Authority may also constitute jurisdictional error: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [68]-[78] per Reeves, Robertson and Rangiah JJ (“DGZ16”).
An instance where the Authority has made findings that are legally illogical, irrational or unreasonable may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130]-[131] per Crennan and Bell JJ. In order to establish jurisdictional error, “extreme” illogicality must be demonstrated, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [148] per Robertson J; SZMDS at [131] and [135] per Crennan and Bell JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [60] per McKerracher, Griffiths and Rangiah JJ.
To constitute a jurisdictional error, the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon CBV17 to establish jurisdictional error in the Authority Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Authority Decision, or determine CBV17’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
CBV17’s Submissions
CBV17’s Written Submissions asserted as follows:
(a)he was not informed or sent any information about the Authority or the requirement that he appear at the Authority “hearing” by the Department, the Authority, or his migration agent;
(b)at the time of the Authority “hearing” he was in the process of changing his address and had informed his migration agent and the Department, but was still contactable on his mobile phone number and his email did not change during this period;
(c)he retained the services of a lawyer but was unable to pay the costs of maintaining legal representation and is presently self-represented;
(d)he was never given the opportunity to be heard or to represent himself at the Authority. He believes the appropriate course of action would have been for the Authority to adjourn and make inquiries as to why he did not appear at his “hearing”;
(e)to have a genuine and fair outcome both parties should have been given the opportunity to present their case; and
(f)due to his lack of knowledge of English and lack of understanding of the law, he was taken advantage of and given false and misleading information regarding this matter.
CBV17’s Written Submissions included other assertions relating to his fear of harm based on being a member of a minority group of citizens in Iran and based on his claim relating to an incident of alleged adultery. He also described his circumstances since arriving in Australia, his hopes for his future in Australia, and expressed his gratitude to the Australian government and support groups for the aid they have given him. Ultimately he asked that the Court grant him protection and the opportunity to remain in Australia.
At hearing CBV17 made the following oral submissions:
(a)he had no knowledge of, and therefore was not present at, the Authority “hearing”: Transcript, p 3;
(b)he has poor English skills: Transcript, p 3;
(c)the migration agent that prepared his Protection Visa application claimed to be a lawyer and continued to assist him while the Protection Visa application was sent to the Authority for review, but he was deceived by the migration agent who was not a lawyer and “they just took [his] money, … they charged [him] for it and they did nothing and they put [him] in this position”: Transcript, p 4;
(d)at the time of the Authority review he was in bad health as a result of an accident: Transcript, p 4;
(e)at the Department Interview he was told he needed evidence, however, he was a young man without any experience and did not know what evidence he should bring. His migration agent told him he was to attend the Department Interview alone and he had no assistance in the Department Interview: Transcript, p 11; and
(f)he could not afford to retain a lawyer for the proceedings in this Court because he lost his job due to the COVID-19 pandemic: Transcript, p 13.
Minister’s Submissions
In relation to ground 1, the Minister submitted that the failure to particularise the ground was sufficient to warrant its dismissal and that otherwise the Authority Decision correctly set out the relevant law and applied the law correctly: CB 166-167 at [5]-[6] and 172 at [30]-[31].
In relation to ground 2, the Minister submitted that:
(a)the Delegate notified CBV17 of its refusal to grant the Protection Visa, and the Notification of Refusal letter was sent to CBV17’s migration agent at the time;
(b)CBV17 had previously provided his migration agent’s details on his Protection Visa application to the Department and had indicated that all written communication about the Protection Visa application was to be sent to his migration agent; and
(c)CBV17 was advised, through his migration agent, in the Notification of Refusal letter, that the Authority would contact CBV17 at a particular address, and to advise the Authority if he wanted the Authority to contact him at a different address. No such advice was sent to the Authority by CBV17 or his migration agent.
Ground 1
Ground 1 of the Judicial Review Application is as follows:
1.The decision of the Immigration Assessment Authority is affected by an error of law.
Consideration – ground 1
The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J, citing WZAVW.
Even where there is an unparticularised ground of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J; FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams. The Court heard oral submissions from CBV17 but those submissions did not address, identify or particularise any jurisdictional error in ground 1.
The failure to particularise ground 1 provides no basis for a finding of jurisdictional error in relation to ground 1 of the Judicial Review Application. Otherwise, the Court finds that the Authority Decision correctly set out and applied the relevant law: CB 166-167 at [5]-[6] and 172 at [30]-[31], and no error, jurisdictional or otherwise, arises in the Authority’s application of the law to the facts as found by the Authority.
Having regard to [19]-[21] above, ground 1 is not made out and does not establish jurisdictional error in the Authority Decision.
Ground 2
Ground 2 of the Judicial Review Application is as follows:
2.The Immigration Assessment Authority denied me procedural fairness. I did not have an opportunity to respond to the issues raised in the Department of Immigration decision. I had not received the notification decision letter and was not made aware of the deadline by which I could respond.
Consideration – ground 2
CBV17 appears to attribute his failure to appear before the Authority to his migration agent, whom he says did nothing and failed to inform him of the Authority review, and he further claims that his migration agent deceived him, seemingly by asserting that she was a lawyer.
CBV17 was invited to apply for a Protection Visa by letter dated 20 April 2016 sent to his nominated residential address in Dallas, Victoria (“Dallas Address”): CB 18. On 27 May 2016 CBV17’s migration agent lodged the Protection Visa application on CBV17’s behalf: CB 21-61. In Part B of the Protection Visa application CBV17 set out at question 6 that he had received assistance with the Protection Visa application form from a migration agent, and at question 10 indicated that all written communication about the Protection Visa application was to be sent to the migration agent: CB 34. On 13 May 2016 CBV17’s migration agent lodged a Form 956 – Advice by a migration agent/exempt person of providing immigration assistance, in which the migration agent provided the migration agent’s postal address in Glenroy, Victoria (“Glenroy Address”) as the address for correspondence in relation to the Protection Visa application.
On 16 January 2017 the Delegate sent CBV17, via post to the Glenroy Address, the Notification of Refusal letter: CB 140-142, together with a copy of the Delegate’s Decision: CB 143-154. Thus the Department provided CBV17 with notification of the Delegate’s Decision to the migration agent’s postal address as provided by CBV17 in the Protection Visa application and did so in the prescribed manner: Migration Act, s 494B(4); Migration Regulations 1994 (Cth) (“Migration Regulations”), reg 2.16. Further, the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients (“Practice Direction”) (given under s 473FB of the Migration Act) sets out at [11]: CB 161, that if a person:
(a)notified the Department that a person was acting on behalf of an applicant during the primary application process that notice does not apply to the Authority’s review; and
(b)continues to act for an applicant during the Authority’s review,
the applicant must notify the Authority as soon as is possible.
There is nothing on the evidence before the Court that CBV17 gave such a notification to the Authority.
Under the Migration Act the Delegate had to:
(a)notify CBV17 of the grant or refusal of the Protection Visa in the prescribed way: s 66(1);
(b)give written reasons to CBV17 if the Protection Visa application was refused: s 66(2)(c); and
(c)notify CBV17 that the Delegate’s Decision had been referred to the Authority for review under Pt 7AA of the Migration Act: s 66(e).
The Notification of Refusal letter notifying CBV17 of the Delegate’s Decision stated that if he wanted the Authority to contact him at an address different to the one listed in that letter, that being the Dallas Address, he should inform the Authority as soon as possible: CB 141. CBV17 did not provide a different address to the Authority. The Authority’s Acknowledgement of Referral letter, information sheet and Practice Direction were therefore sent to the Dallas Address: CB 155. The Authority also gave CBV17 some information about the Authority’s review, including that he would need to provide any new information to the Authority for consideration: CB 141, but CBV17 did not do so.
Section 66(4) of the Migration Act states, however, that the failure to notify in accordance with s 66 of the Migration Act does not invalidate the Delegate’s Decision. Further, non-compliance with s 66 of the Migration Act will not amount to jurisdictional error in a decision made under s 65 of the Migration Act: Chan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308 at [50] per Gray J; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; (2003) 77 ALJR 1829; (2003) 201 ALR 327; (2003) 76 ALD 1 at [48] per Gleeson CJ, Gummow and Heydon JJ. Thus, even if the Delegate had failed to properly notify CBV17 of the Delegate’s Decision, no jurisdictional error arises.
To the extent that CBV17 contends a denial of procedural fairness because he asserts he missed out on an opportunity to provide submissions to the Authority, the Authority’s procedural fairness obligations are set out in Pt 7AA, Div 3 of the Migration Act. Section 473DA of the Migration Act provides that Pt 7AA Div 3 of the Migration Act, together with ss 473GA and 473GB of the Migration Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to Authority reviews. The combined effect of ss 473DA(1), 473DB(1) and 473DC(2) of the Migration Act is that the Authority is required to conduct a review of the Delegate’s Decision on the papers and the common law rules of procedural fairness do not govern the way in which reviews are to be conducted under Pt 7AA of the Migration Act: DGZ16 at [68]-[78] per Reeves, Robertson and Rangiah JJ, and in particular at [75] where it was said:
There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
It follows, therefore, that for the purposes of the Authority’s review the Authority was not required to invite CBV17 to a hearing or to hold a hearing. For this reason, insofar as it related to the right to a “hearing” before the Authority, ground two of the Judicial Review Application, and many of the submissions in support thereof by CBV17, is misconceived.
The Court also notes that:
(a)the notification of the Authority Decision was sent to the same address, namely the Dallas Address, to which the Acknowledgement of Referral letter was sent; and
(b)CBV17 filed the Judicial Review Application under s 476 of the Migration Act within time on 15 May 2017,
and, therefore, the inference to be drawn from those facts is that CBV17 was still using the Dallas Address to collect mail.
For the reasons set out at [24]–[33] above, it is evident that, in accordance with the procedure prescribed by the Migration Act, Migration Regulations and the Practice Direction, CBV17 was notified of the refusal of the Protection Visa, given written reasons by way of the Delegate’s Decision in relation to that refusal, notified that the matter had been referred to the Authority for review, and was advised to notify the Authority if correspondence was to be sent to an address other than the Dallas Address. No jurisdictional error is made out insofar as it is asserted in ground 2 of the Judicial Review Application that there was a denial of procedural fairness on the basis set out therein.
In relation to the allegations of what might be argued to be a fraud upon the Authority raised by, or in submissions in relation to ground 2 of the Judicial Review Application, fraud upon the Authority which affects its decision-making process may constitute jurisdictional error: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 (“SZFDE”) at [49]-[51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 (“SZLIX”) at [30]-[33] per Tamberlin, Finn and Dowsett JJ.
Jurisdictional error will occur on account of fraud by a third party if the Authority was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. The imperative statutory functions are those governing procedural fairness obligations under the Migration Act, and where such function is vitiated the decision-maker, here the Authority, is found to have not made a decision at all: SZFDE at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. It is not considered to be a fraud on the Authority, nor jurisdictional error, where a migration agent has acted negligently, incompetently or inadvertently, or simply failed to inform: SZFDE at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLIX at [30] and [33] per Tamberlin, Finn and Dowsett JJ. Ordinarily, in order to constitute fraud, the relevant conduct must be proven to the requisite standard outlined in s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”), which is as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Notwithstanding the caution expressed against treating any provision of the Evidence Act (as part of the uniform evidence legislation) as a codification of common law principles of evidence: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; (1999) 73 ALJR 1274; (1999) 164 ALR 548 at [10] per Gleeson CJ and Hayne J, s 140 of the Evidence Act has been said (in Commonwealth & Anor v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; (2012) 287 ALR 267; (2012) 126 ALD 10 at [128] per Gray, Rares and Tracey JJ and Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [28] per Wheelahan J) to be a partial codification or re-statement of what was said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJ 100; CLR at 362 per Dixon J, where it was observed that it is often said that fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty". It has also been observed that the gravity of the matter: Evidence Act, s 140(2)(c), is a circumstance which the Court must take into account when determining whether or not the burden of proof has been discharged, and the more serious the issue of which proof is required, the more cogent and clear the evidence is needed to establish it: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449; ALJR at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459 at [128]-[129] and [137]-[139] per Branson J.
To the extent that CBV17 asserts that the Authority Decision was vitiated by the fraudulent conduct of a third party, namely the migration agent, in relation to advice concerning the existence of, and processes surrounding, the Authority review, the Court observes that there is no evidence that the migration agent’s impugned conduct was anything more than a failure to refer appropriate correspondence to CBV17. That conduct rises no higher than mere negligence, incompetence or inadvertence, including by way of a possible simple failure to inform, and does not establish jurisdictional error in the Tribunal Decision: SZFDE at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLIX at [30]-[33] per Tamberlin, Finn and Dowsett JJ.
Insofar as CBV17 asserted that he was deceived by the migration agent telling him that she was a lawyer, it is not apparent, even if the assertion is true, how this amounts to a fraud on the Authority, or could otherwise have affected the Authority Decision in any way. There is no evidence that the migration agent represented to any of the Department, the Delegate or the Authority that she was a lawyer. Rather, it is evident that in most, if not all, of her correspondence concerning this matter, that her name and status as a migration agent, and oftentimes her migration agent’s registration number and status as a Justice of the Peace, appear clearly on the face of her correspondence and various official forms: see, for example, CB 20, 34 (Protection Visa Application), 74 (Advice by migration agent, providing immigration assistance) and 87 (Letter from migration agent to a case officer).
It follows from [35]-[39] above that fraud in relation to ground 2 is not made out.
Having regard to [24]-[40] above, ground 2 is not made out and does not establish jurisdictional error in the Authority Decision. Insofar as the issue of fraud is not covered by ground two, or might be seen to be in addition to ground 2, it is not made out for the same reasons as appear at [35]-[39] above.
Further matters – merits review, misleading and deceptive conduct and legal representation
In relation to CBV17’s claims for protection and plea to the Court to grant him protection, these submissions amount to no more than an impermissible request for merits review: Wu Shan Liang, and it is not within the jurisdiction of this Court to grant protection or order the issuance of a Protection Visa (a matter explained to CBV17 by the Court at the outset of the hearing).
CBV17 raised, in very vague terms, assertions of alleged misleading and deceptive conduct by others, not specifically identified, but possibly including a lawyer that he says he instructed at some point. It is not apparent from what was put to the Court by CBV17 how the vague and unparticularised assertions of alleged misleading and deceptive conduct by persons generally unknown might have been said to give rise to jurisdictional error in the Authority Decision, or on the part of the Authority.
In relation to CBV17’s submission that he was unable to retain the services of a lawyer in relation to these proceedings, the Court observes that there is no right to legal representation in migration proceedings in this Court: SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; WZARX v Minister for Immigration and Border Protection [2014] FCA 423 at [14] per McKerracher J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev. The Court is, however, cognisant that where a party is self-represented the Court must endeavour to remain alert to the possibility of jurisdictional error being made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev, but, save for the matters discussed above, there is nothing in this Judicial Review Application that would appear to raise or indicate any arguable or possible jurisdictional error was made by the Authority.
None of the above further matters establish jurisdictional error in the Authority Decision, or on the part of the Authority.
CONCLUSION AND ORDERS
For the reasons set out at [18]-[45] above, the Court has concluded that CBV17 has failed to establish jurisdictional error in the Authority Decision, or on the part of the Authority. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 24 March 2022
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