Cok17 v Minister for Immigration

This matter came before Judge Heffernan of the Federal Circuit Court of Australia, concerning an application for judicial review by a visa applicant against the Minister for Immigration. The dispute arose from the dismissal of the applicant's protection visa application by the Administrative Appeals Tribunal (AAT) and the subsequent affirmation of that dismissal. The applicant contended that she was unaware of the possibility of reinstating her application with the AAT after it was dismissed on 2 May 2017, as notifications regarding this process were allegedly sent directly to a third party, Ms X, whom the applicant believed to be a lawyer.

The court was required to determine whether the fraudulent conduct of a third party, Ms X, had stifled the operation of the natural justice hearing rule in relation to the applicant's AAT proceedings. Additionally, the court considered whether there had been a constructive failure to exercise jurisdiction by the Tribunal. The applicant also raised concerns about her understanding of the process and her reliance on Ms X, who appears not to have been a registered migration agent or a solicitor.

Judge Heffernan's reasoning focused on the applicant's lack of awareness regarding the reinstatement process for her AAT application. The Tribunal's decision record indicated that the applicant was notified of the dismissal and the 14-day period for seeking reinstatement, but the applicant asserted that these notifications were sent to Ms X. The court noted that the applicant believed Ms X to be a lawyer and communicated with her in Mandarin. The court also observed discrepancies in the timing of the initiating application filed in the court, which appeared to be dated prior to the AAT's decision being made. The applicant provided evidence suggesting Ms X was not a registered migration agent or a solicitor, and was involved with a company.