CLY17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 725
Federal Circuit and Family Court of Australia
(DIVISION 2)
CLY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 725
File number: MLG 1206 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 1 September 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant protection visas – whether Tribunal failed to consider procedural errors made by first respondent – whether applicants were denied procedural fairness – whether Tribunal took into account irrelevant considerations – whether Tribunal failed to take into account relevant considerations – whether Tribunal decision was affected by actual or apprehended bias – whether applicants are innocent victims of fraud by their migration agent – no jurisdictional error – application dismissed. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3, Sch 1
Migration Act 1958 (Cth) ss 36, 47, 424A, 425, 425A, 476, 477
Cases cited: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
DZAEH v Minister for immigration and Border Protection [2016] FCA 83
Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53
Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 908
Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submission/s: 29 July 2022 Date of hearing: 31 May 2022 Place: Perth First Applicant: In person Counsel for the First Respondent: Ms L Helsdon Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Spark Helmore Lawyers ORDERS
MLG 1206 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLY17
First Applicant
CLZ17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
1 September 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
By application filed on 7 June 2017 under s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 17 May 2017 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicants protection visas.
The applicants set out a number of grounds in their written application but their primary complaint appears to be that they engaged an agent who fabricated their claims for protection, and they did not know that the application he filed on their behalf was for a protection visa. I have treated this as an allegation of fraud in the visa application process.
For the reasons explained below, I have found that the applicants were not the innocent victims of fraud by their migration agent and there is no jurisdictional error in the Tribunal decision. I therefore dismiss the application for judicial review.
Background
The applicants are citizens of Malaysia who arrived in Australia in June 2013 as the holders of student visas. The applicants’ student visas were cancelled on 30 October 2015.
On 11 November 2015 the applicants applied for protection visas. Both applicants claimed that they feared harm from loan sharks in Malaysia due to an outstanding debt. On 16 March 2016 a delegate of the Minister made a decision not to grant the applicants protection visas.
On 1 April 2016 the applicants lodged an application to the Tribunal seeking review of the delegate’s decision. The first applicant attended a hearing convened by the Tribunal on 11 May 2017 to give evidence and present arguments.
On 17 May 2017 the Tribunal affirmed the delegate’s decision.
Tribunal decision
The Tribunal provided the following summary of the evidence given by the applicant at the hearing:
12.The applicant told the Tribunal that he had wanted to stay in Australia as he loves Australia but did not want to do so unlawfully. He found an agent online who said that he could secure permanent residence for the applicant for AUS$20,000.00 which the applicant proceeded to pay on a monthly basis of $2,000.00 a month. However the applicant did not know that the agent had prepared and lodged a protection visa application until such time that he and his wife attended the Department to provide identity information. That was when he understood what was going on, and that the claims contained in the protection visa application had been fabricated.
13.The applicant told the Tribunal that he can no longer contact his agent who he knew only as ‘Alex’, and that after they had paid him the full $20,000.00 fee his online presence disappeared and his mobile phone is unanswered. The applicant told the Tribunal that he knows his application must be refused, and he doesn’t know why he even attended the Tribunal hearing. He told the Tribunal that he has no fear of returning to Malaysia.
The Tribunal expressed sympathy for the first applicant, indicating that he presented as ‘an honest and forthright witness who has been exploited by an unscrupulous ‘agent’’.
The Tribunal acknowledged the first applicant’s evidence that he and the second applicant had no fear of returning to Malaysia, did not come to any harm in Malaysia at the hands of money lenders or anyone else, and did not fear harm from money lenders or from anyone else if they returned to Malaysia.
Based on the evidence provided by the first applicant, the Tribunal found that the applicants did not meet the refugee criteria in s 36(2)(a) or the complementary protection criteria in s 36(2)(aa) of the Migration Act. Given that neither applicant satisfied the criteria in ss 36(2)(a) or 36(2)(aa), it followed that they were also unable to satisfy s 36(2)(b) or (c) of the Migration Act.
Proceedings before this Court
The applicants commenced proceedings in this Court by way of an application filed on 7 June 2017 which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application raises the following grounds of review (reproduced without alteration):
1. I am the Applicant in this matter.
2.The whole of the judgement of the Administrative Appeals Tribunal given on 17 May 2017 at Melbourne be set aside, as well as reinstatement of the case is sought due to the following reasons.
3.On or about 11 November 2015, an agent whom I know as Alex, filed on my behalf a Protection (subclass 866) Visa.
4.On or about 19 March 2016, the First Respondent decided to refuse my application for Protection (subclass 866) Visa.
5.On or about 05 April 2016, I was advised and applied to the Administrative Appeals Tribunal “The Tribunal”, for merits review on the Department’s decision (dated 19 March 2016) to refuse my Protection (subclass 866) visa application.
6.On 17 May 2017 the Administrative Appeals Tribunal’s decision was produced, not in favour.
7.In the Administrative Appeals Tribunal’s decision record dated 17 May 2017, it failed to take into consideration some important procedural errors made by the First Respondent.
8.The First and Second Respondent had failed to consider this case in accordance with Natural Justice and procedural fairness (Administrative Decisions (Judicial Review) Act (1977) s 5(1)(a)).
9.The First and Second Respondent took irrelevant considerations into account in their decision(s) and exercise of power (Administrative Decisions (Judicial Review) Act (1977) s 5(2)(a)).
10.The First and Second Respondent failed to take relevant considerations into account in their decision(s) and exercise of power (Administrative Decisions (Judicial Review) Act (1977) s 5(2)(b)).
11.The First and Second Respondent exercised of a discretionary power in accordance with a rule or policy without regard to the merits of this case (Administrative Decisions (Judicial Review) Act (1977) s 5(2)(f)).
12.Hence, the First and Second Respondent failed to determine this case in accordance with the Law, Rules and Regulations. The Second Respondent interpreted or applied the relevant Law, Rules and Regulations in a manner which was in accordance with the Second Respondent’s personal view rather than a comprehensive view of the relevant law.
13.Therefore, the First and Second Respondent denied procedural fairness and natural justice by taking a personally subjective view rather than considering the Applicant’s actual circumstances and application of the relevant Law, Rules and Regulations.
14.I hold out that I have good prospects of success in this appeal matter as there is a notion that the First and Second Respondents had not opportune me procedural fairness and natural justice in refusing my Protection (Subclass 866) visa application made on 11 November 2015 and the Second Respondent (the Tribunal) affirming that decision of the First Respondent on 17 May 2017.
15.For the reasons outline above, I file this application and hope for a favourable decision.
On 5 October 2021 a Judge of this Court made an Order requiring the applicants to file and serve any amended application, affidavits, supplementary Court Book and written submissions by 5 December 2021. The applicants did not file any documents in accordance with the Order. The Minister filed written submissions on 3 February 2022.
Consideration
Jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81].
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45].
Matters raised in grounds that are outside of the Court’s jurisdiction
As identified by the Minister in his submissions, insofar as the applicants’ grounds are directed to the delegate’s decision, the Court does not have any jurisdiction to review the delegate’s decision. That is because the delegate’s decision is a ‘primary’ decision within the meaning of s 476(4)(a) of the Migration Act. The Court does not have jurisdiction to review primary decisions: s 476(2)(a) of the Migration Act.
Further, several of the applicants’ grounds refer to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Relief under the ADJR Act is not available to the applicants in this matter. That is because the Tribunal decision is a privative clause decision or purported privative clause decision under the Migration Act and is therefore excluded from the application of the ADJR Act: see s 3(da) and (db) in Schedule 1 of the ADJR Act. However, in circumstances where the applicants are self-represented, I interpret the relevant grounds to allege jurisdictional error in the Tribunal decision, and consider whether the applicants are entitled to writs of certiorari and mandamus.
Grounds 1 to 6
Grounds 1 to 6 of the applicants’ application simply sets out the background to the matter and do not assert jurisdictional error.
These grounds do not establish jurisdictional error in the Tribunal decision.
Ground 7
By ground 7 the applicants assert that the Tribunal failed to take into consideration ‘important procedural errors’ made by the delegate. The applicants have not identified the ‘important procedural errors’ that they believe the Tribunal should have taken into account and there is nothing in the materials before the Court to indicate that the applicants raised with the Tribunal any concerns about any alleged procedural errors made by the delegate.
In any event, I accept the Minister’s submission that this ground does not establish jurisdictional error in the Tribunal decision. The Tribunal conducts a de novo review of the delegate’s decision and is required to make the correct or preferable decision on the materials before it: Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615 at [15]; SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791 at [20]-[24]; DZAEH v Minister for immigration and Border Protection [2016] FCA 83 at [34]. The Tribunal is not required to determine the validity of the procedures adopted by the delegate in this matter: see Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 at [42].
Ground 7 is not established.
Grounds 8 and 14
Grounds 8 and 14 allege that the Tribunal failed to afford the applicants procedural fairness, but do not indicate why the applicants believe they were denied procedural fairness.
I am satisfied that the Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Migration Act in conducting the review and did not deny the applicants procedural fairness. I note that:
(a)By invitation sent on 23 March 2017, the Tribunal invited the applicants to attend a hearing on 11 May 2017 in accordance with s 425 of the Migration Act. The notice of the invitation to attend the hearing complied with the formal requirements set out in s 425A of the Migration Act. There is no evidence before the Court that suggests the invitation was not a real and meaningful one.
(b)The applicants were on notice of the dispositive issues from the delegate’s decision. The applicants provided a copy of the delegate’s decision to the Tribunal when they lodged their application for review.
(c)The Tribunal’s obligations in s 424A(1) of the Migration Act to give the applicants clear particulars of information that would be the reason or part of the reason for affirming the delegate’s decision did not arise in the present case. This is because the information which formed the reasons for the Tribunal affirming the delegate’s decision was information provided by the applicants, and therefore fell within the exclusion in s 424A(3)(b) of the Migration Act.
Grounds 8 and 14 are not established.
Grounds 9 and 10
Grounds 9 and 10 allege that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations. The applicants have not identified any irrelevant considerations that they allege the Tribunal had regard to when making its decision. Nor have the applicants identified any relevant considerations or circumstances in their case that they allege the Tribunal overlooked.
As the Minister submitted, the applicants can only establish jurisdictional error based on a failure to take into account a relevant consideration if the consideration was a mandatory consideration that the Tribunal was required to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15(a)]. A matter will be a mandatory relevant consideration if the relevant legislation expressly states that it must be taken into account, or if it must be taken into account by implication from the subject matter, scope and purpose of the relevant legislation. For a matter to amount to an irrelevant consideration, it must be one that, either expressly or by implication, the Tribunal was forbidden or prohibited from taking into account.
I accept the Minister’s submission that the Tribunal in the present case had regard to all of the relevant material and evidence before it, which comprised the applicants’ claims in their protection visa application and the first applicant’s oral evidence at the hearing, including his concession that the applicants did not fear harm on return to Malaysia. I am unable to identify any mandatory relevant consideration that the Tribunal failed to take into account, and the Tribunal did not have regard to any irrelevant considerations that it was prohibited from taking into account.
Grounds 9 and 10 are not established.
Ground 11
Ground 11 alleges that the Tribunal exercised a discretionary power in accordance with a rule or policy without regard to the merits of the case.
The applicants have not identified which discretionary power they say that the Tribunal exercised in accordance with a rule or policy without regard to the merits of the case. The Tribunal’s decision to affirm the decision not to grant the applicants protection visas was not the exercise of a discretionary power. In circumstances where the Tribunal found that the applicants did not meet the criteria for a protection visa, it had no option other than to affirm the delegate’s decision.
In any event, in reaching its decision the Tribunal has not disregarded the merits of the case. The Tribunal clearly had regard to the claims set out in the applicants’ protection visa application and the oral evidence given by the first applicant at the hearing and based its decision on the first applicant’s evidence.
Ground 11 is not established.
Grounds 12 and 13
Grounds 12 and 13 allege that the Tribunal based its decision on its personal view rather than a proper application of the relevant law, rules and regulations. To the extent that these grounds allege bias, they are not established.
Any allegation of bias must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. To establish that the Tribunal was biased, the onus is on the applicants to prove that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter, or that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]; Jia Legeng at [35].
The applicants have not distinctly raised and clearly proved any allegation of bias in this matter. They have not provided particulars to these grounds and they have not articulated with specificity any matters which they say give rise to bias.
There is nothing on the face of the Tribunal decision which would enable the Court to draw the inference that the Tribunal exercised its statutory powers in accordance with its ‘personal view’ or ‘personally subjective view’.
For completeness, to the extent that ground 13 also alleges that the Tribunal failed to afford the applicants procedural fairness, it is not established for the same reasons that grounds 8 and 14 are not established.
Grounds 12 and 13 are not established.
Ground 15
Ground 15 simply asserts that the applicants hope for a favourable decision and does not assert or establish any jurisdictional error in the Tribunal decision.
Issue raised at the hearing: allegation of fraud
At the hearing, the first applicant submitted that he did not believe the Tribunal made a mistake but complained that he was the victim of a migration agent who applied for a protection visa on behalf of the applicants when this application should not have been lodged. As can be seen from the summary of the Tribunal decision above, the first applicant raised a similar issue before the Tribunal.
After questioning the first applicant about what it was that he was alleging and what he wanted the Court to do, and taking into account that he was appearing before the Court as a self‑represented litigant, I formed the view that it was possible the first applicant was raising an allegation of fraud by his migration agent. The applicants had not filed any evidence to establish fraud, but the first applicant gave oral evidence at the hearing. The second applicant did not participate in the hearing and did not give any evidence.
I also made orders at the hearing to give both parties an opportunity to file further submissions after the hearing. Both parties have filed additional submissions addressing the first applicant’s allegation of fraud. The Minister has also filed an affidavit of Leith Ann Helsdon, which simply annexes a copy of the transcript of the hearing before the Court. The Minister’s further submissions on fraud address the legal principles in relation to fraud, the evidence given by the first applicant at the hearing and the Minister’s submissions as to the application of the law in the present case. The applicants’ submissions address the factual assertions only, and the factual assertions referred to in the submissions are consistent with the evidence given by the first applicant at the hearing.
The Minister’s further submissions accurately identified that the first applicant’s allegation appears to be that fraud by the applicants’ migration agent in connection with the preparation of their visa application means that their application was never a valid application for the purposes of the Migration Act and should not have been considered pursuant to s 47 of the Migration Act.
The Full Court of the Federal Court said in Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213 (Maharjan) at [105]:
The concept of a valid visa application, on the current state of the authority of this Court, does not include an application made without the actual or otherwise authority of the named visa applicant, where the visa applicant does not have capacity to give authority (see [Minister for Immigration and Border Protection v] Kim [(2014) 221 FCR 523; [2013] FCAFC 47]) and does not include an application based on fraudulent documents where the visa applicant is neither complicit in the fraud nor indifferent to the use of unlawful or dishonest means (see Singh [v Minister for Immigration and Border (2016) 247 FCR 554; [2016] FCAFC 141] and Gill [v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142]).
The Full Court of the Federal Court summarised the principles applicable to fraud in a visa application in Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53 at [56]-[57], where it said:
56.The principles applicable to the determination of whether fraudulent conduct vitiates a visa application are helpfully set out in the Minister’s written submissions at [6]–[9], and were not disputed by the appellants. They arise from the High Court’s decision in SZFDE, and four decisions of the Full Court of this Court, and there is no challenge to the correctness of those authorities:
First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves … room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application” (Singh at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 (Singh at [52]).
Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Marharjan at [53], citing Gill at [50]).
Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Marharjan at [35], [44], [122]).
Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud not ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.
(Original emphasis and footnotes omitted.)
57.To this summary should be added the following propositions articulated by the High Court in SZFDE:
(a)There are important differences between fraud in public and private law, in particular the need in the context of public law for a fraud to have an effect on the processes of the exercise of public power in order for it to vitiate those processes, and be capable of “unravelling” decisions or conduct: see SZFDE at [14], [24]–[27], [29], [42] (by reference to the reasons of French J (in dissent, and as his Honour then was) in the Full Court: Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365), [47]–[49]. One way of expressing this is to ask whether the repository of the public power was “disabled” from performing its statutory functions by reason of the fraud (at [51]).
(b)Often the only effective remedy for victims of fraud in public law is for the tainted decision-making process to be set aside and a “fresh untainted hearing conducted” (at [22]).
(c)Circumstances where an applicant for judicial review has “colluded” in the fraud are excluded from these principles (at [28]).
(d)A finding of fraud should specify “what was said that was fraudulent, how it was fraudulent, and how it was acted upon” (in the words of French J in SZFDE in the Full Court, quoted with approval by the High Court at [41]).
Declaratory relief is available to the applicants if they are able to show that they are the innocent victims of fraud by their migration agent, and that the third party fraud stultified a process or processes under the Migration Act: Maharjan at [78].
The applicants therefore need to establish in the present case that:
(a)the conduct of a person who provided migration assistance to the applicants in connection with their protection visa application amounted to ‘fraud’;
(b)if fraud is established, they were not complicit or recklessly indifferent to its commission; and
(c)the fraud stultified or disabled a process or processes under the Migration Act.
In the present case, I am not satisfied that the applicants’ protection visa application is invalid as the applicants have not established that they are the innocent victims of fraud.
I accept that the claims for protection set out in the protection visa application are false. The first applicant gave evidence to this effect at the hearing and also gave evidence to the Tribunal that the claims in his protection visa application were false. I also accept the evidence that the first applicant gave at the hearing before the Court that he did not find out that the visa application made was for a protection visa until he attended the Department to provide a fingerprint in or about February or early March 2016, which is some months after the protection visa application was lodged. I am prepared to accept that the applicants’ migration agent acted fraudulently in lodging an application containing false claims. For the avoidance of doubt, I make no finding as to the identity of the migration agent, who the first applicant said he knew only as ‘Alex’.
However, the first applicant’s evidence does not establish that the applicants are the innocent victims of fraud and, as mentioned above, the second applicant did not participate in the hearing or give any evidence. In particular, the first applicant has not established that the applicants were not recklessly indifferent to any fraud committed by their migration agent. In making this finding, I take into account the principles set out in Kaur at [130]-[143] as to the concept of ‘indifference’ to the commission of fraud, which were summarised in Singh v Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 908 at [203]:
The most comprehensive consideration of “indifference” is undertaken in Kaur at [130]–[143]. There, the following propositions were stated:
a)a distinction is to be drawn between indifference as to how an agent, acting lawfully and properly, can achieve the object of obtaining a visa as opposed to “an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly”: [132]–[133];
b)in public law, the kind of indifference required to vitiate a decision alleged to be stultified by fraud approximates more closely to the concept of reckless indifference as defined in the common law: [134];
c)in the context of fraud by a migration agent, the use of false information will be fraudulent in the requisite sense where the person does not believe in its truth or is recklessly indifferent as to its truth: [134]–[135];
d)in the proof of fraud, “the requisite state of mind for reckless indifference is close to intention. Or at the least, it is a state of mind where the indifference or wilful blindness to the truth of what is being said or done is at such a level that the Court considers it appropriate to fix a person or conduct with the same consequences as those fixed for an intentionally fraudulent act”: [136];
e)for those reasons, the reckless indifference or wilful blindness must be as to the truth of the representation that is said to be deliberately false and accordingly, “the need for a careful, finding based on probative evidence, becomes apparent”: [137];
f)other states of mind which will not suffice include: helplessness; fear of authority; ignorance, naïveté, want of due care, dependence or reliance: [138]–[139].
In order to properly explain my findings, it is necessary to summarise the first applicant’s evidence as to the circumstances in which the applicants came to lodge their protection visa application. This evidence can be broadly summarised as follows:
(a)After the applicants’ student visas were cancelled, he really wanted to live here as a permanent resident but did not want to live here without a visa. He did a search on the internet in relation to permanent resident visas in Australia, or something similar, and found an agent whose name is Alex. The first applicant did not know the agent’s surname. The first applicant found a post on the internet that had a phone number for Alex and contacted him by phone. The applicants then met the agent at a restaurant.
(b)The agent said that for $25,000, he could make the applicants permanent residents. The first applicant offered to pay $20,000 and the agent said yes. The applicants paid in instalments, initially of $10,000 and then in $2000 instalments up to $20,000. Those payments were made in cash, the first payment being exchanged at a restaurant and some of the subsequent payments being passed through a car window. When the applicants met with the agent the first time, the agent said ‘You have to pay us cash. No bank and no transfer’. When asked if he thought it was strange to be paying in cash, the first applicant did not think it was strange because the agent had told him it was an ‘under table’ arrangement.
(c)The first applicant gave the agent some information to include in the application and thinks it was information such as his parents’ names and brother’s and sister’s names. Between the first meeting and the second meeting with the agent, which both took place at the restaurant, the agent called and asked a few things. The first applicant said that the agent ‘Asked this, and asked that. So we provided him all the information that he want. And I guess — I just guessed that he just duplicate some information from another application.’ The agent completed the visa application forms. The first applicant endorsed the completed visa application form with a thumbprint, as he is blind. The second applicant signed her visa application form but did not read English well at that time. The applicants were not told what was in the visa application form at the time they signed and thumb-printed the forms. The forms were lodged by the agent.
(d)The first applicant found out that the applicants had applied for a protection visa when he attended the Department a few weeks before the visa was refused to provide his fingerprints. Until that time he did not know that there were such a thing as a protection visa application. When he returned from the Department, he conducted some research on the internet about protection visas and told his wife, ‘We’re in trouble’. The applicants did not seek any advice at that point, and did not withdraw their protection visa application or otherwise tell the Department that they should not have applied for a protection visa.
I accept that the applicants wanted to be granted visas with a view to ultimately becoming permanent residents, and did not want to be unlawful non-citizens. However, I find that the first applicant was recklessly indifferent as to whether or not the applicants’ desired outcome of obtaining visas was achieved by the agent acting unlawfully or dishonestly. This can be seen from the first applicant’s willingness to engage in what he referred to repeatedly at the hearing as an ‘under table’ transaction. When asked what he understood an ‘under table’ transaction to be at the time of engaging the agent, he replied:
At that time, I – I understand that under table – which is he might have some internal connection with someone, which is – I don’t know, and paying for a lower – paying for a low price to get a permanent residency, so this is what I understand from the under table. That what he meant. Because he is a Malaysian as well, and I myself is a Malaysian as well, and we have the same language, where under table in – I’m sorry to – I’m – I’m sorry to say this. In Malaysia, it’s quite famous, quite popular, saying under table and just helping, so I believe – I – I – at that time, I believe that he might have certain kind of connection with someone inside, where he can provide me a permanent residency, so this is what – my belief, but it just turned out to be wrong.
This shows that the first applicant understood that the agent may use means to obtain a visa on his behalf outside of the ordinary, lawful process of lodging an application and paying the prescribed fee. When asked if he was concerned by the agent saying it would be an under table transaction, the first applicant replied:
No. I didn’t think — think anything else. I just need a visa. I don’t want to stay here unlawful. That’s it. During the time – during 2015, which is – I – I – I don’t want that – being blacklisted and leave here for unlawful, so I – I choose to trust him.
The first applicant also gave evidence that:
Because when he say that this is under table, and then I say, “It’s okay. No – no problem. As long as I got a visa.” So I told him. I say, “I don’t want to leave here unlawful.” By the time I paid him the – the 11 and 12 thousand, that time I already got my bridging, so that’s why I choose to trust him at that time, because he submitted. I don’t know how he submit – I don’t know how he submitted the – the application, and later he gave me my bridging – which is about three weeks later or three weeks after the – the [$]10,000. He already passes the bridging E, which is – I – I really trust that he can do something to – to – to avoid us from been unlawful.
The fact that the payment for the agent’s services had to be by cash, rather than by some form of bank transfer where there would be a documentary record, further demonstrates the first applicant’s awareness that the agent may use dishonest or unlawful means to obtain the visa. This is reinforced by the applicant’s evidence, when discussing the under table transaction, that the agent said ‘cannot go to the bank, it’s dangerous, blah, blah, blah, blah’.
Although the first applicant referred repeatedly to the ‘trust’ he placed in his agent, I find that the ‘trust’ the first applicant was referring to related to the agent’s representation that he could get the applicants permanent visas, rather than ‘trust’ to act lawfully and honestly in obtaining those visas. I find that the first applicant was indifferent to the information or means used by the agent to obtain a visa.
I make the following additional comments in relation to the evidence in this matter:
(a)Based on the first applicant’s evidence I find that the first applicant became aware that he had applied for a protection visa a few weeks before the delegate refused to grant the applicants protection visas. I also find that, having done his own research, the first applicant formed the conclusion that he was not entitled to a protection visa, yet did not advise the Department that he should not have applied for the visa and that the claims were incorrect, or withdraw his application, or seek independent advice. The first applicant gave no indication in his evidence that he was still contemplating his options at the time of the delegate’s decision. In circumstances where I have found that the first applicant was recklessly indifferent as to whether or not his agent used unlawful or dishonest means to obtain a visa from the time at which the agent was engaged, it is unnecessary to make any findings as to the effects on his claim of fraud of the first applicant’s conduct after he became aware of the protection visa application.
(b)I observe that the protection visa applications were both dated 16 September 2015, but were not lodged with the Department until 12 November 2015. The first applicant’s evidence would be undermined if the protection visa applications were accurately dated 16 September 2015, as this date is prior to the cancellation of the applicants’ student visas, that cancellation been the trigger event that caused them to search for and engage the agent they knew as Alex. However, in circumstances where the disparity in dates was not put to the first applicant at the hearing, and where the first applicant’s evidence was that he is blind and did not know what was in the protection visa application when he thumb printed it, I make no finding as to whether the protection visa applications were accurately dated and I draw no adverse inference against the applicants as a consequence of any discrepancy in dates.
In circumstances where I have found that the first applicant was recklessly indifferent to whether or not his agent acted unlawfully and dishonestly in attempting to obtain visas for the applicants, it follows that the first applicant is not the innocent victim of fraud. The second applicant has not participated in the proceeding before the Court and has not made any independent claim to be the victim of fraud. It follows that I do not find that the protection visa applications were invalid, and the fraudulent conduct of the agent in submitting fabricated claims for protection has not stultified or disabled any process under the Migration Act.
Conclusion
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application for judicial review is dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 September 2022
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