CFS23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1006
•24 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CFS23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1006
File number: PEG 205 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 24 September 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – allegation of agent misconduct and/or fraud on the Tribunal raised at first hearing before this Court – evidence filed by the applicant in relation to the agent’s conduct – pro bono referral certificate issued by the Court (and accepted by pro bono counsel) – application ultimately discontinued and costs awarded. Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.01
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 24 September 2024 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 205 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CFS23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The application be discontinued.
3.The applicant pay the first respondent’s costs, fixed in the sum of $8,371.30.
4.Written reasons for judgment will be published 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 KENDALL:
INTRODUCTION
This matter was listed for a second hearing before this Court at 1.00pm on 24 September 2024. When the matter was called, Mr Hamish Glenister (“Mr Glenister”), (pro bono solicitor for the applicant) confirmed to the Court that the applicant wished to discontinue his application.
In the circumstances, the Court made the following orders:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2. The application be discontinued.
3. The applicant pay the first respondent’s costs, fixed in the sum of $8,371.30.
4. Written reasons for judgment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 above. They explain why the Court proceeded as it did.
BACKGROUND
The applicant in this matter is a citizen of Malaysia (Court Book (“CB”) 14 & 38). He first arrived in Australia in February 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 48).
On 21 April 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-37). In that visa application, the applicant claimed to fear harm on the basis that he was gay, had been in “a gay relationship” and had been supporting “LGBT matters”. The applicant also claimed that, if someone was “able to trace [his] relationship”, he would be “sentenced by the Islamic Court of Justice” (CB 32). The applicant provided a copy of his Malaysian passport with his visa application (CB 38).
On 26 July 2017, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the applicant’s visa application (CB 39-44).
On 31 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 48-58).
On 19 September 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 59-65).
On 28 July 2023, the Tribunal invited the applicant (via email) to attend a hearing before it scheduled for 30 August 2023 (CB 69-74).
On 28 August 2023, the applicant provided the Tribunal with a completed “Response to hearing invitation” form and written submissions (via email) (CB 80-91).
The applicant attended the Tribunal hearing on 30 August 2023 and was assisted at that hearing by a Malay interpreter (CB 93-96).
On 4 September 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 99-114).
On 13 September 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 13 September 2023 contained three grounds of review as follows (without alteration):
1.The decision maker’s decision has a jurisdictional error.
2.The decision maker’s decision on the applicant’s credibility is only based on his/her personal opinion and was not based on any facts.
3.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
The applicant filed an affidavit with that judicial review application annexing a copy of the Tribunal’s decision. The applicant’s affidavit also repeated the grounds of review (outlined above).
On 24 November 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant prior to the first hearing of this matter (on 24 July 2024).
The materials before the Court (at the time of the first hearing) included the application for judicial review and supporting affidavit filed by the applicant on 13 September 2023, a Court Book numbering 114 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 4 September 2024.
First hearing
The applicant appeared at the first hearing of this matter before this Court (on 24 July 2024) without legal representation but with the assistance of a Malay interpreter. Ms Aatika Ismailjee (“Ms Ismailjee”) from Sparke Helmore appeared at the first hearing on behalf of the Minister.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant initially told the Court that the Tribunal “did not make a mistake” and that the “mistake” was on the part of the applicant because he had used an agent and that agent “did not put the proper information in that he required”. Further, the applicant said that the agent had convinced him that he had a lot of experience and he trusted him.
Later in the hearing, the applicant told the Court that, before he appeared at the Tribunal hearing, he spoke with an agent and that agent “consulted” with him for two hours and “trained him” about what he should and should not say at the Tribunal hearing. In particular, the applicant told the Court that his agent instructed him to “just say no” if he was asked if he had an agent helping him.
The applicant further claimed to have met with the agent at a hotel in Perth and explained that that the agent had questioned him “as if he were the Tribunal member”. The applicant asked the Court if he could look at his phone because he “had all of the details that were given” to him by the agent. The Court allowed him to do so. The applicant also described some of the “background” information he claimed he was told to pass on to the Tribunal and told the Court the agent’s name. When asked by the Court if the information on his phone was in English or in Malay, the applicant told the Court it was in the Malay language.
Noting that the applicant appeared to raise an allegation that his agent instructed him to mislead the Tribunal or that the agent’s conduct amounted to a fraud on the Tribunal (and noting the comments made by the Full Federal Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146), the Court explained to the applicant that the matter would be adjourned to allow the applicant time to have the documentation from his agent translated into English and filed with the Court, together with any additional evidence and submissions that he wished to put forward. The Court explained the importance of providing as much evidence to the Court as possible and stressed that any information that was not in English would need to be translated.
Ms Ismailjee asked to be heard on the issue of the adjournment. The Court acknowledged that Ms Ismailjee’s instructions might be to oppose the adjournment but that, in the circumstances, the Court had determined that it was in the interests of justice to adjourn the matter to allow the parties time to file additional materials.
The Court made orders as follows:
1. The hearing be adjourned to 24 September 2024 at 12.30pm.
2. The applicant have leave to file further evidence, including:
(a)affidavit evidence in relation to the alleged conduct of his migration agent generally; and
(b)a copy of the email/text correspondence from that agent to the applicant as referenced by the applicant at the hearing on 24 July 2024 and an English translation (prepared by a NAATI qualified translator) of that email/text correspondence;
and written submissions by 21 August 2024.
3.The first respondent have leave to file any evidence in reply and any further written submissions by 4 September 2024.
On 20 August 2024, the applicant filed affidavit evidence in support of his claims of misconduct or fraud on the part of his agent.
On the basis of the materials filed by the applicant, the Court considered it was appropriate issue a pro bono referral certificate and attempt to obtain legal assistance for the applicant.
Mr Glenister accepted. The Court expresses its appreciation to Mr Glenister for his willingness to again assist the Court and an unrepresented litigant on a pro bono basis.
Further written submissions and an affidavit of Ms Ismailjee were filed on behalf of the Minister on 4 September 2024.
Second hearing
As outlined above, the matter was adjourned for a further hearing on 24 September 2024.
On the morning of that second hearing (being on 24 September 2024), my chambers was notified by the Court’s National Migration Team that a notice of discontinuance had been filed on behalf of the applicant.
The Court notes that a notice of discontinuance may be filed at least 14 days prior to a final hearing or with the leave of the Court at a later time: r 13.01(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Given the serious allegations made by the applicant at the first hearing (on 24 July 2024), noting the close proximity of the hearing and having regard to the outstanding issue of costs, the Court considered it would be appropriate to hear from the parties at the scheduled hearing before granting leave for the proceeding to be discontinued.
Mr Glenister appeared at the second hearing of the matter on behalf of the applicant (with the applicant also in attendance to observe the hearing). Ms Georgina Ellis (“Ms Ellis”) appeared on behalf of the Minister.
Mr Glenister confirmed that he had explained to the applicant the consequences of discontinuing the matter (including possible costs consequences). Mr Glenister also advised that the applicant intended to pursue his migration options through other means and now had a separate agent to assist him in that regard. Finally, Mr Glenister advised that he and Ms Ellis had conferred and they had agreed that the matter should be discontinued with costs agreed in the scale amount of $8,371.30.
Noting that the parties had reached an agreement and that Mr Glenister had explained the consequences of a discontinuance to the applicant, the Court was satisfied that the matter could be discontinued.
In relation to the costs order sought, the Court was also satisfied that the amount was appropriate in the circumstances. The Minister had filed two sets of submissions and affidavit materials and both Ms Ismailjee and Ms Ellis were prepared to make oral submissions to the Court as required. The Court also notes that the amount was agreed to by Mr Glenister (on behalf of the applicant).
CONCLUSION
In the circumstances, the Court made orders to make an order to discontinue the proceeding and awarded costs to the Minister, as outlined at [2] above.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 October 2024
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