CWX17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2025] FedCFamC2G 988
•26 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CWX17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2025] FedCFamC2G 988
File number(s): MLG 1384 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 26 June 2025 Catchwords: MIGRATION – Application to set aside order dismissing judicial review application – judicial review application dismissed for non-appearance – applicant claims not aware of hearing date – email address not one used by primary applicant – email address created by person assisting with drafting of judicial review application – whether adequate reason for non-appearance – whether reasonably arguable prospects of success on proposed grounds of review – whether loan agreement in Malaysia – credibility – whether findings unreasonable or illogical – whether weight given to allegations made – whether fraud on Tribunal in relation to non-appearance.
PRACTICE AND PROCEDURE – Application to set aside order dismissing judicial review application – considerations relevant to exercise of discretion to set aside dismissal order – whether adequate reasons for non-appearance – whether delay in making set aside application – whether prejudice to respondent – whether reasonably arguable prospects of success on proposed grounds of review
PRACTICE AND PROCEDURE – Proposed further amended application for judicial review – whether orders sought – whether submissions or commentary – whether further orders sought relate to set aside of dismissal order or judicial review application – whether furthers sought are orders capable of being made.
PRACTICE AND PROCEDURE – Statutory declaration not accepted for filing – where identical (or substantially so) statutory declaration previously rejected for filing.
Legislation: Constitution, Ch III
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) ss 36, 438, 476
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
CWX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 365
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
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 Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Singh v Official Trustee in Bankruptcy [2008] FMCA 521
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73; (2014) 307 ALR 31; (2014) 138 ALD 437
SZUFS v Minister for Immigration and Border Protection [2015] FCA 991
SZUFS v Minister for Immigration and Border Protection [2015] FCCA 545
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 23 May 2024 Date of hearing: 16 April and 23 May 2024 Place: Perth First Applicant: Appeared in person Counsel for the First Respondent: Ms P Durham Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1384 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CWX17
First Applicant
CXA17 (and others named in the Schedule)
Third Applicant
AND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
26 JUNE 2025
THE COURT ORDERS THAT:
1.The application in a proceeding filed on 24 March 2022, as amended by an amended application in a proceeding accepted for filing on 20 June 2023, 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
JUDICIAL REVIEW APPLICATION DISMISSED
On 28 June 2017 the then applicants: see Court Book (“CB”) 28, CWX17, CWZ17 (CWX17’s eldest son), CXA17 (CWX17’s husband), CXB17 (CWX17’s youngest son) and CXC17 (CWX17’s daughter) (“the Applicants”) filed an application for judicial review (“Judicial Review Application”) in the Melbourne Registry of this Court. The Judicial Review Application was made under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application sought review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration and Citizenship (“Minister”) to refuse to grant the Applicants subclass 866 protection visas (“Protection Visa/Visas”). References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Tribunal Decision.
Although the Judicial Review Application was filed in the Melbourne Registry of the Court on 28 June 2017, and the CB was lodged on 21 March 2018, nothing further happened with the Judicial Review Application until 23 November 2021 when a Registrar of the Court in the Melbourne Registry made orders for the filing of written submissions by the Applicants and the Minister 28 and 14 days before “the final hearing”, and a further order was made that the Judicial Review Application be listed for a final hearing on a date to be fixed.
The Judicial Review Application was listed for final hearing before a Judge in the Melbourne Registry on 8 February 2022. The Applicants did not appear and orders were made dismissing the Judicial Review Application for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) (“Dismissal Order”), with an annotation that the Applicants could apply for re-instatement of the Judicial Review Application pursuant to r 17.05 of the GFL Rules.
THE SET ASIDE APPLICATION – BACKGROUND
On 24 March 2022 the Applicants filed an application in a proceeding pursuant to r 17.05 of the GFL Rules seeking that the Dismissal Order be set aside and the Judicial Review Application be re-instated to the Court’s lists (“Set Aside Application”). The Set Aside Application was first listed for hearing on 14 November 2022. It would appear that that hearing did not proceed.
On 17 March 2023 Consent Orders were made (“March 2023 Orders”) by a Judge in the Perth Registry of the Court for the filing of submissions by the Applicants and the Minister in respect of the Set Aside Application for 14 and 7 days respectively before the hearing of the Set Aside Application.
Shortly after the making of the March 2023 Orders the matter was docketed to the presently presiding Judge in the Perth Registry of the Court, and on 21 April 2023 further orders (“April 2023 Orders”) were made, relevantly as follows:
2. The applicant file and serve:
a) any amended application in a proceeding; and
b) any further affidavits,
by 31 May 2023.
3. The first respondent file and serve:
a) any response to any amended application in a proceeding; and
b) any further affidavits,
by 30 June 2023.
4. The applicant file and serve any further outline of submissions by 14 July 2023.
5.The first respondent file and serve further outline of submissions by 28 July 2023.
6.Each party give notice to the other party and to the Court of any witness sought to be cross examined by 4 August 2023.
7.The application in a proceeding or any amended application in a proceeding be listed for hearing by videolink on a date to be fixed.
On 1 June 2023 the Court made orders varying the times for filing in the April 2023 Orders.
On 15 June 2023 the Applicants lodged an amended application in a proceeding which was accepted for filing on 20 June 2023 (“Amended Set Aside Application”) and which sought amended orders as follows:
1.That the Court set aside orders made in relation to this matter (MLG1384/2017) by her Honour Judge C E Kirton QC on 8 February 2022, pursuant to Rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
2. That this matter (MLG1384/2017) be re-instated pursuant to rule 17.05.
3.
Each party pay its costs3. Order 4 of the Courts Orders dated 8 February 2022 in relation to costs be set aside.4.That leave be granted to amend the Application – Migration Act (filed on 28 June 2017 and dated 29 June 2017) in the terms annexed hereto as Annexure A.
On 19 March 2024 the lawyers then acting for the Applicants gave notice of their withdrawal from the proceedings. New lawyers were not appointed to represent the Applicants, and the Applicants have subsequently been self-represented (essentially by CWX17 who is the primary applicant).
On 15 April 2024 the Applicants filed an application in a proceeding seeking orders:
(a)for further time to file further material; and
(b)that the hearing of the Amended Set Aside Application on 16 April 2024 be:
(i)adjourned; and
(ii)transferred to the Melbourne Registry of the Court.
On 16 April 2024 the Court delivered an ex tempore judgment on the Applicant’s 15 April 2024 application in a proceeding: CWX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 365 (“CWX17 (No 1)”). The Court made orders as follows:
1.The Applicant’s application for transfer of the matter to the Melbourne Registry be dismissed.
2.The hearing of the Applicant’s amended application in a proceeding filed 20 June 2023 be adjourned.
3. The Applicants are to file and serve:
(a) any further amended application in a proceeding;
(b) any further affidavits; and
(c) a further written outline of submissions,
by 30 April 2024.
4. The First Respondent is to file and serve:
(a) any further affidavits; and
(b) a further written outline of submissions,
by 14 May 2024.
5.The further hearing of the Applicant’s amended application in a proceeding or any further amended application in a proceeding be listed for hearing at 10:00am on 23 May 2024.
6. Costs reserved.
In relation to the order granting the adjournment the Court notes that at the hearing on 16 April 2024 the Applicants, for the first time, evinced an intention to raise a case of fraud on the Tribunal. In CWX17 (No 1) at [9]-[12] per Judge Lucev the Court observed as follows:
9.In relation to the applicants’ application for an adjournment, the applicants seek a further two weeks to submit documents which would appear to include, at least, police reports from Malaysia. The applicants say that these documents were given to their original lawyer prior to the Tribunal proceedings but were not submitted to the Tribunal. And that when the applicants queried that with their lawyer, they were told to, “Just wait.” The applicants are evidently dissatisfied with what occurred in relation to their lawyer before the Tribunal and evidently dissatisfied with what has happened with what they say are four other lawyers who have been engaged in relation to the judicial review proceedings. The Minister opposes the application for an adjournment. The Minister says, quite rightly, that these proceedings have been the subject of significant delay. But as the Court observed, part of that delay would not appear to be the applicants’ fault. The application for an adjournment arguably raises – albeit at a very late stage – a possible assertion that there may have been a fraud on the Tribunal.
10.As the Minister, correctly submits, the authorities set a high bar for establishing a fraud on the Tribunal – in this case allegedly by the applicants’ own representatives. Fraud on the Tribunal is to be distinguished from mere negligence, inadvertence or incompetence by a party’s representatives: SZFDE v Minister for Immigration and Citizenship [2007] HCA 36; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
11.It is not possible in this case to determine whether or not there might be an arguable case of fraud on the Tribunal on the papers as they presently stand because, until the recently filed application in a proceeding, the matter simply had not arisen. And indeed, it might be said that it did not arise properly in some more discernible form until the applicants’ oral submissions today in circumstances where the Court notes that the applicants’ most recent lawyers have only recently – that is, within the last four weeks – withdrawn from these proceedings. In circumstances where the first (and primary) applicant and possibly the second applicant are not native English speakers and where all the applicants are now self-represented, the Court is conscious that it ought not too readily dismiss matters that are now raised by the applicants which they say were previously raised with their representatives, but were seemingly not taken up: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J; BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”) at [31]-[35] per Feutrill J; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J.
12.The Court is very conscious of the delay that has occurred in this matter but is also mindful that the applicants ought not be deprived of an opportunity to properly put their case and considers that a further short delay would not unduly prejudice the Minister.
The Court went on to indicate that it would make an order that the hearing of the Amended Set Aside Application be adjourned: CWX17 (No 1) at [13] per Judge Lucev.
On 30 April 2024 CWX17 lodged an application in a proceeding (which the Court has taken to be a proposed further application in a proceeding) which was accepted for filing on 31 May 2024 (following the making of the Court’s orders on 23 May 2024 (“Court’s May 2024 Orders”): see [14] below), and in which CWX17 sought orders as follows (verbatim, save for name deletions):
1.I applied for a protestion visa for my family and myself in 2017. since them I am fighting for my rights in Australia to be bale to protect mine and my family’s life and rights to live in this country. I have provided all evidence and proofs I have to explain to the your honor to see my claims are true. At the time of lodging my application I had a lawyer helping me and all I received was bills to pay to the lawyer and no results. now I am fighting my case myself as my children are suffering by not being able to study or see a future for themselves. I can’t go back due to constant threats being still given to me.
2.My youngest daughter right to continue her study after she finished her school.
3.My son who is 22 to be allowed to back to his university to continue his studies.
4.My hudband and I to be given full working rights so we can support our family.
5.My family to be given medicare support so I can provide counselling services to my children [name deleted] and [name deleted] who are suffering from high depression.
The Court’s May 2024 Orders were as follows:
1.The proposed further application in a proceeding be accepted for filing, but that it be dismissed.
2.The First Applicant’s affidavit of 29 April 2024 and two affidavits of 16 May 2024 be accepted for filing, but be subject to further argument with respect to relevance.
3.The statutory declaration of the First Applicant of 15 April 2024 not be accepted for filing.
4.The notice of discontinuance dated 26 April 2024 of the Second Applicant be accepted for filing.
5.The proceedings be discontinued in relation to the Second Applicant.
6.The Second Applicant pay the First Respondent’s costs of the discontinuance.
7.The Reasons for Judgment in relation to orders 1-6 above be delivered together with the reasons in relation to the amended application in a proceeding.
The proposed further application in a proceeding was accepted for filing (as it was filed in accordance with the orders made by the Court on 16 April 2024). The proposed further application in a proceeding was however dismissed on the basis that:
(a)proposed order 1 did not in fact seek any order in relation to the Amended Set Aside Application, but rather offered commentary, and arguably submissions, in relation to the Amended Set Aside Application; and
(b)proposed orders 2 to 5 are not orders:
(i)in relation to the Amended Set Aside Application; and
(ii)that the Court could make on the Amended Set Aside Application (or, ultimately, the Judicial Review Application).
CWX17’s affidavits of 29 April 2024 and two affidavits of 16 May 2024 were accepted for filing on the basis that they were filed in accordance with the orders made on 16 April 2024, and that their content might be relevant to the Amended Set Aside Application, but that would need to be assessed on the basis of relevance following submissions from the parties.
Order 3 that CWX17’s statutory declaration of 15 April 2024 not be accepted for filing was made on the basis that it was identical (or substantially so) to a statutory declaration previously rejected for filing by the Court: see CWX17 (No 1) at [2]-[3] per Judge Lucev.
Orders 4 to 6 in relation to the notice of discontinuance on behalf of CWZ17 simply accept the intention of CWZ17 to discontinue the proceedings against the Minister and reflect the fact that in those circumstances CWZ17 ought to pay the Minister’s costs.
AFFIDAVIT MATERIAL
Applicants’ affidavit material filed in the Set Aside Application
The Set Aside Application as filed on 24 March 2022, was supported by an affidavit of CWX17 made on 17 March 2022 (“CWX17’s March 2022 Affidavit”).
At [1]-[6] of CWX17’s March 2022 Affidavit CWX17 said as follows:
1.On or around 29 June 2017 I filed, through my former solicitors, an application with the then Federal Circuit Court of Australia (FCC) for an appeal of the decision of the Administrative Appeals Tribunal.
2.On 29 June 2020 I sought advice on prospects of success with Tahsin Malek of Malek Manas Lawyers.
3.I have used the services of Malek Manas Lawyers for a variety of legal matters over the years.
4. I agreed for Tahsin to obtain Counsel’s opinion on prospects.
5.On or around 6 August 2020 Tahsin informed obtained Counsel’s legal advice on prospects, stating that I actually may have prospects of success in my appeal with the FCC.
6.On 10 March 2022 at 2.36:10pm I received an email from the Department of Home Affairs stating that my visa had expired. Annexed and marked “KI-1” is a copy of the email.
The 10 March 2022 email from the Department of Home Affairs said that:
Our records show that you last held a visa which has ceased to be in effect as of 08/03/2022.
As you do not hold a valid visa, you are currently an “unlawful non-citizen”.
As you have no ongoing matters before the department, you are required to apply for a Bridging Visa E to regularise your immigration status.
There followed instructions on how to apply for a Bridging Visa E using an “IMMI Account”, followed by the final two paragraphs which were in the following terms:
Please note, should you remain in Australia without a visa and not engage in this application/interview process, your details will be referred to Australian Border Force Field officers for location and further enforcement actions.
We look forward to speaking with you shortly to regularise your immigration status.
At [7]-[10] of CWX17’s March 2022 Affidavit CWX17 said as follows:
7.On 10 March 2022 after reading the department's email, I immediately called Tahsin and was unable to reach him at first. Later during the evening, he called back advising that he was admitted into hospital.
8.On 10 March 2022 I emailed the department in the evening asking why we no longer had a visa.
9.On l0 March 2022 I received a reply email from the Department advising that as my family our visa had lapsed.
10.On 10 March 2022 I emailed the Court asking about my hearing date. Annexed and marked "Kl-2" is a copy of my email and the reply from the Court Registry.
The 10 March 2022 email from the Melbourne Registry of the Court was in the following terms:
Your matter, MLG 1384/2017 was finalised on 8 February 2022. A hearing was conducted and no appearance was made from any applicants. An email was sent to the email on file with the details of the 8 February hearing on 1 February 2022. The sealed order was also sent via email on 8 February.
Please ensure your email inbox has been properly checked, as well as your junk mail.
At [11]-[17] of CWX17’s March 2022 Affidavit CWX17 said as follows:
11.On 12 March 2022 Tahsin called me advising that he had been discharged from the hospital and that he was seeking advice from Counsel on my matter.
12.From 12 March until today I have been in constant contact with Tahsin in relation to my court matter and bridging visa E applications.
13. I was completely unaware that we had a hearing date for 8 February 2022.
14.I checked the email address of the Court Book and realised that this was an old email address which I no longer use.
15.My family and I would have most certainly prepared for and attended the Court hearing, especially given that we had previous legal advice stating that we may have prospects of winning our appeal.
16.On 15 March 2022 Tahsin advised that he received a sealed copy of the Court Orders from the Respondent’s Solicitor. Annexed and marked “K1-3” is a copy of the Court Orders.
17.On 16 March 2022 Tahsin sent me our new application to re-instate our case. Annexed and marked “K1-4” is a copy of the signed Application in a Proceeding.
Applicants’ further affidavit material
As set out above the Applicants also sought to rely on an affidavit of CWX17 made on 29 April 2024 (“CWX17’s April 2024 Affidavit”) and two affidavits made by CWX17 on 16 May 2024 (“CWX17’s First May 2024 Affidavit” and “CWX17’s Second May 2024 Affidavit” respectively).
In relation to CWX17’s April 2024 Affidavit it inadmissible in its entirety. The substantive content, numbered as paragraphs 2 to 6 inclusive, is identical to the orders sought (as orders 1 to 5 inclusive) in the proposed further application in a proceeding dismissed in the Court’s May 2024 Orders. Insofar as [2] of CWX17’s April 2024 Affidavit is concerned to the extent that it contains factual material in the last three sentences that factual material does not assist in the resolution of the only ultimately dispositive issue in these proceedings, that being whether the Applicants have a reasonably arguable prospect of success on the Judicial Review Application. Otherwise, [3]-[6] of CWX17’s April 2024 Affidavit are irrelevant to any issue to be determined by the Court on the Amended Set Aside Application.
The First May 2024 Affidavit contains the same paragraphs as were held inadmissible in the April 2024 Affidavit, and an additional two preliminary paragraphs [2] and [3] indicating that CWX17 is representing herself and can no longer afford to pay legal fees and has provided the evidence to support her case and “has submission for my case”. Those paragraphs add nothing of any relevance in circumstances where the only issue for resolution in these proceedings is whether there is a reasonably arguable prospect of success on the Judicial Review Application. It follows that for that reason, and for the same reasons as the April 2024 Affidavit was held to be inadmissible, the First May 2024 Affidavit at Part C – Evidence is also inadmissible.
Annexed to the First May Affidavit, but not referred to in Part C – Evidence, are documents which, in addition to not being referred to in the body of the Affidavit are not otherwise indexed or noted as annexures to the First May Affidavit. The documents are as follows:
(a)a statement made by a person who says they have known CWX17 “for an extended period and have observed firsthand the developments in her life, particularly concerning her association with … [Mr X]” (“Mr X” being the Court’s pseudonym for CWX17’s former Malaysian business partner), and declared on an unspecified date in March 2024 in Malaysia;
(b)a Certificate of Incorporation of a private company, incorporated in Malaysia on 26 November 2007, with the Certificate of Incorporation dated 10 March 2024 (“Certificate of Incorporation”);
(c)a Statutory Declaration declared on 15 April 2024 by CXB17 (CWX17’s youngest son) asserting that the limitations on his visa, which did not permit him to seek employment, deprived him of the means to sustain his studies, and also referencing his mental health condition;
(d)a signed statutory declaration made on an unspecified date in March 2024 by an “acquaintance … [o]ver a considerable period of time]” of CWX17 referring to the circumstances involving CWX17 and Mr X;
(e)a letter from a firm of advocates and solicitors concerning “Confirmation of Events in … [CWX17’s] life” dated 29 March 2024 and setting out events which occurred in Malaysia in 2011 and 2013 involving CWX17 and her family and Mr X and his associates, and asserting that CWX17 and her family continued to face threats from Mr X;
(f)a letter of offer dated 17 January 2022 to CXB17 from a university in Melbourne offering him a place in a Bachelor of Information Technology course;
(g)company information dated 10 March 2024, including particulars of directors and officers, stakeholders, shareholders and corporate and financial information of the company referred to in the Certificate of Incorporation referred to at (b) above;
(h)a further declaration made on an unspecified day in March 2024 by an “old” friend of CWX17 relating to events concerning Mr X;
(i)a declaration made on 14 February 2024 by CWX17’s personal bodyguard concerning alleged kidnapping attempts on CWX17’s daughters on successive days in April 2011;
(j)a signed but undated declaration by an employee of CWX17 concerning an incident on 16 April 2011 involving an attempt to kidnap CWX17’s daughters; and
(k)a copy of advice obtained from a barrister concerning the merits of the Judicial Review Application (dated 6 August 2020) (“Barrister’s Advice”).
The First May 2024 Affidavit is entirely comprised of documents which were not before the Tribunal. It is also comprised, primarily, of documents which post-date the Tribunal Decision. All of the documents annexed to the First May 2024 Affidavit (except the Barrister’s Advice) go directly to issues of fact which are for the Tribunal and not this Court to deal with: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). In circumstances where the documents were either not before the Tribunal, or post-date the Tribunal Decision, and where most of the documents invite merits review, those documents ought to be struck out.
It follows therefore that the entirety of the First May 2024 Affidavit is to be struck out.
The Second May 2024 Affidavit again repeats the material struck out of the April 2024 Affidavit, and the additional material contained in Part C – Evidence of the First May 2024 Affidavit which has been struck out. It follows that material also ought to be struck out of the Second May 2024 Affidavit. The Second May 2024 Affidavit also has attached to it an otherwise unreferenced extract from what appears to be an SMS exchange between two people, one of whom may be CWX17 (CWX17’s first name appearing in the exchange of messages). There is, however, no evidence as to who is said to have sent the messages, or who is said to have received them, or when they were sent, or the context in which they were sent. Otherwise, the messages might be factual material going to the merits of CWX17’s Tribunal review, but not the merits of the Judicial Review Application: Wu Shan Liang.
In the circumstances the SMS messages are vague and irrelevant to the Court’s task if it were to determine the Judicial Review Application, and it follows that they ought to be struck out.
It therefore follows that the entire Second May 2024 Affidavit ought to be struck out.
The Court notes that to the extent that the Barrister’s Advice contains material going to whether the Applicants have a reasonably arguable prospect of success on the Judicial Review Application the Court has had regard to those parts of the Barrister’s Advice as if they were submissions made on behalf of the Applicants.
Minister’s affidavit material
On 18 April 2023 the Minister filed the affidavit of Paige Elise Durham affirmed 17 April 2023 (“Durham Affidavit”) in which Ms Durham affirms at [3]-[5] as follows:
3.On 23 November 2023, my office received an email from the Court advising that this matter had been listed for hearing at 2:15pm on Tuesday 8 February 2022 before Judge Kirton. That email was also sent to the applicants’ nominated email address, … [email address deleted].
Annexed hereto and marked ‘PED-1’ is a copy of the email and its attachments.
4.I did on 25 January 2022 instruct my legal assistant to arrange for service on the applicants by email to the applicants' nominated email address, … [email address deleted], a sealed copy of the first respondent's submissions filed with the Court on 25 January 2022. The letter attached to this email stated that this matter was listed for hearing at 2:15pm on Tuesday 8 February 2022 before Judge Kirton, via web conference.
Annexed hereto and marked ‘PED-2’ is a copy of the email and its attachments.
5.On 7 February 2022, I received an email from the Court advising that the Court had attempted to contact the applicants on the mobile number provided but that it was disconnected.
Annexed hereto and marked ‘PED-3’ is a copy of the email.
CONSIDERATION
Factors for consideration
Under r 17.05(2)(a) of the GFL Rules, the Court has a discretionary power to set aside orders made in the absence of a party. The non-exhaustive list of factors which have typically informed consideration of an application to set aside entered orders made in the absence of a party include the following:
(a)that there is no delay in making the application to set aside;
(b)whether the party in whose favour orders have been made would be prejudiced by a new hearing in any respect which could not be adequately compensated by a suitable award of costs or the giving of a security;
(c)that there is a reasonably arguable prospect of success on the merits of the substantive application; and
(d)that there is an adequate reason for the non-appearance,
see Singh v Official Trustee in Bankruptcy [2008] FMCA 521 at [19] per Lucev FM, SZUFS v Minister for Immigration and Border Protection [2015] FCCA 545 at [14] per Judge Driver (affirmed in SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 at [18] per Reeves J), and MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] per Ryan J.
In CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 (“CAL15”) at [4] per Mortimer J the Federal Court observed that:
As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
To that non-exhaustive list may now be added statutory case management considerations under the overarching civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), which are discussed further at [71]-[75] below.
Minister’s position
The Minister’s position is that:
(a)it is accepted that the Applicants’ delay is not lengthy;
(b)there is no prejudice to the Minister arising from the setting aside of the Dismissal Order that could not be addressed by an order for costs;
(c)there is an adequate reason for the Applicants’ non-appearance at the final hearing at which the Dismissal Order was made; and
(d)the Amended Set Aside Application should be dismissed as the Judicial Review Application is without merit.
Because of the Minister’s acceptance that there is not a lengthy delay, and that there is no prejudice to the Minister from setting aside the Dismissal Order, and that it would be open for the Court to find that there was an adequate reason for the Applicants’ non-appearance at the final hearing at which the Dismissal Order was made, the Court need only consider the final factor (and one which is usually critically dispositive: CAL15 at [4] per Mortimer J) as to whether there is a reasonably arguable prospect of success on the merits of the Judicial Review Application.
Reasonably arguable prospects of success on the merits of the Judicial Review Application
Test for reasonably arguable prospect of success
In CAL15 at [5]-[6] per Mortimer J the Federal Court observed that:
5.However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
6.The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
In order to assess whether there are reasonably arguable prospects of success it is necessary to set out a summary of the Applicants’ protection claims and a summary of the Tribunal Decision and the grounds of the Judicial Review Application (both actual and proposed) in order to determine if there are reasonably arguable prospects of success on the merits of the Judicial Review Application.
Protection claims
The Applicants’ claims to fear harm were set out in a statement provided by CWX17 with the Protection Visa application: CB 21-26. In summary, CWX17 claimed to fear harm from Mr X, who was her business partner in Malaysia. Mr X invested 500,000 Malaysian ringgit in CWX17’s business in March 2010. CWX17 claimed Mr X was not a genuine investor and threatened CWX17 for money in order to pay debts he owed to people in Thailand who were linked to criminal gangs. CWX17 outlined various occasions when she had been threatened by Mr X, most significantly: CB 21-26 and 380-382 at [15]:
(a)in 2011 she met Mr X at a McDonalds where he forced her to sign a document saying Mr X had received money from an Islamic Association in Thailand and that the money went into their business. However, the money did not go into the business but to Mr X;
(b)CWX17 met Mr X at a mall. Mr X was there with three Chinese Thai men and told CWX17 that if she “did not pay”, the men would kill CWX17 and her family;
(c)in October 2011 a man came to CWX17’s house and tried to kidnap CWX17’s daughter, CXC17, by offering their domestic helper 5,000 Malaysian ringgit. The domestic helper refused;
(d)soon after there was an attempted kidnapping of CWX17’s other daughter when some men came to CWX17’s bakery asking about the children. CWX17’s bodyguard intervened and stopped the men; and
(e)in March 2013 CWX17 met Mr X. Mr X was with three Chinese Thai men and one of them opened his jacket to show CWX17 a gun. Mr X demanded that CWX17 transfer all of her businesses, property and assets to him. CWX17 refused and Mr X said she had one month to sign the documents transferring her assets.
At the interview with the Delegate, CWX17 claimed that Mr X targeted her because she was a member of a non-governmental organisation involved in charity work assisting single mothers and orphans – and so had connections with Tan Sri Zaleha, the former Malaysian Minister for Women’s development. Mr X wanted CWX17 to introduce him to Tan Sri Zaleha. When CWX17 refused, Mr X began threatening her for money: CB 252 and 382 at [16].
In the Tribunal Decision the Tribunal:
(a)summarised the claims and evidence of CWX17 and her husband (CXA17) in detail: CB 380-388 at [15]-[54];
(b)identified that it had asked CWX17 to comment on information it had received from the Department, which was the subject of a certificate and notification issued under s 438(1)(b), and concerned her taking money from people on the promise of obtaining visas for them. The Tribunal recorded that CWX17 denied the allegations. The Tribunal then stated it had given these allegations no weight, as they were not relevant to assessing whether CWX17’s claims of threats from Mr X were true or not: CB 388 at [56];
(c)accepted that CWX17 was a business woman in Malaysia, with various business interests: CB 389 at [59], but considered that certain aspects of CWX17’s evidence raised credibility issues, and in particular:
(i)CWX17 had provided conflicting explanations as to the source of the money from Mr X, being whether it was from “criminal gangs” or Mr X’s Haj Pilgrimage fund held at the bank: CB 390 at [60];
(ii)CWX17’s conduct in continuing to run her businesses for two years after receiving threats from Mr X, up until she left Malaysia, was not consistent with having been the subject of continued threats and a kidnapping attempt on each of her daughters: CB 390 at [61]; and
(iii)CWX17’s account of her interactions with police (and her claims of their ineffectiveness) were not credible in light of country information which suggested that the police were totally ineffective as claimed by CWX17: CB 390-391 at [62];
(d)did not accept that CWX17 had borrowed money from Mr X, who had links with criminal gangs, or that there was a real chance the Applicants would face serious harm because she had failed to repay money she had borrowed from Mr X: CB 392 at [63];
(e)was not satisfied that the Applicants met s 36(2)(a): CB 392 at [63]; and
(f)for the same reasons, also did not accept the Applicants would face a real risk of significant harm because CWX17 had failed to repay money she had borrowed, and concluded that the Applicants did not meet s 36(2)(aa): CB 392 at [64].
Proposed grounds of Judicial Review Application
The proposed grounds of the Judicial Review Application are as follows (verbatim):
1. The Tribunal fell into jurisdictional error in three ways.
2. First, jurisdictional error is found at [63] and [64] of the Tribunal decision.
3.The Tribunal erred in concluding there was no loan agreement, after making findings at [59] to [62]. The Tribunal had made findings that supported a view that there was a commercial relationship.
4.It was not open to the Tribunal to come to its conclusion at [63] and [64] based on the factual matrix as found in the Decision. The conclusion does not follow the evidence as found by the Tribunal.
5.Second, the Tribunal should have given weight to the allegations made by community members (at [56]) and erred in not doing so. These were relevant considerations that should have been taken into account, and the Tribunal erred in finding the allegations had no bearing on whether the claims of harm from her estranged business partner were true.
6.Third, the decision was unreasonable as a result of the factual findings made by the Tribunal that did not support the conclusion at [63] and [64]. The weight of evidence supported a finding of a commercial relationship, and therefore a conclusion there was no risk of harm did not follow.
7.Given the nature of the claim, the Tribunal should have been satisfied pursuant to s 36(2)(aa) of the Migration Act that the applicants would suffer significant harm if they were to be returned to Malaysia.
Tribunal Decision – specific paragraphs
At CB 388 at [56] and 389-392 at [59]-[64] of the Tribunal Decision the Tribunal wrote that:
56.On 12 January and 13 April 2017 the Tribunal received from the Department copies of allegations made by members of the community that the applicant was involved in taking money from people in Australia on the promise of obtaining visas for them. The information was subject to notifications issued by delegates of the Secretary of the Department issued under s.438(1)(b) of the Act to the effect that the information had been given to the Department in confidence. The Tribunal raised the allegations received on 12 January 2017 with the applicant at the hearing on 2 February 2017 and she denied them. The Tribunal considers that allegations received on 12 January and 13 April 2017 are not relevant to the decision to be made in this review in that, while the allegations (if accepted) would be relevant to the applicant’s character, they can have no bearing on whether her claims regarding the threat she faces from her estranged business partner in Malaysia, … [Mr X], are true or not. The Tribunal has therefore given these allegations no weight.
…
59.The Tribunal does accept that the applicant is a business woman, who had various business interests in Malaysia. Indeed, the Tribunal is assisted in its findings by the documentary evidence provided by the applicant’s representative in her post-Hearing submissions. The Tribunal also accepts that based on the country information persons in Malaysia do reach agreements for personal loans and investments in the manner that has been suggested by the applicant in her evidence before the Tribunal. However, the applicant’s version of events as submitted to the Tribunal raises issues of credibility.
60.Firstly, the Tribunal was told that a dispute arose between the applicant and her partner called … [Mr X] over the payment of a still outstanding amount of money. Initially, the applicant had borrowed RM500K and had made repayments in the interim period and the amount still outstanding was RM150K. The applicant’s partner required the loan to be completely settled. In order to bring this about, the applicant and her partner met in 2011 at a McDonald’s café. At that meeting, … [Mr X] forced the applicant to sign a piece of paper as evidence that she had procured the amount of RM500K from him for her business as investment capital. It was further claimed that … [Mr X] required this signed acknowledgement of moneys borrowed so he could show the criminal gangs in Thailand (from whom he had received the funds). The Tribunal does not find the applicant’s explanation as credible. The applicant in her evidence to the Tribunal provided conflicting explanations as to her partner’s sources of funds. At paragraph 26, she stated that the source of the moneys borrowed for investment purposes in her business had their source in ‘criminal gangs’. However at paragraph 27, the applicant told the Tribunal that the moneys came from her partner’s Haj Pilgrimage fund held at the bank.
61.Secondly, the Tribunal was told that the applicant’s daughter Arissa was the subject of a kidnapping attempt which was prevented. Then, the Tribunal was told that there was second attempted kidnapping of her daughter … [name deleted]. Both of which were orchestrated by her partner, … [Mr X]. The second kidnapping also failed. These two incidents forced the family to leave their home, and live in condos at undisclosed addresses around Kuala Lumpur. Also, for a short time, her children were sent to Indonesia in order to be away from … [Mr X’s] harm but returned to Malaysia when their Indonesian tourist visas expired. Indeed, it is during this difficult time (according to the applicant’s account), that the applicant (despite the threats from … [Mr X]) continued to calmly attend to her business interests on a daily basis (see, paragraph 31). Moreover, she told the Tribunal that she met with her estranged business partner at a Starbucks’ café and that her partner attended that meeting with three Chinese, one of whom showed the applicant that he was carrying a gun. This state of affairs continued until the applicant arranged for her family to leave for Australia on 15 July 2013 and then followed them herself, arriving on 24 July 2013. The Tribunal finds this account of events not credible, for the reason that the Tribunal does not accept that the applicant (who would meet as and when required with her business partner) could have remained in Malaysia for two years without resolving her outstanding debt issue, having endured two assaults on her family members and continued to run her business interest on a daily basis.
62.Thirdly, the applicant told the Tribunal that she tried to seek help from the police and the Malaysian legal system but on both occasions no help was provided. At paragraph 35, the applicant told the Tribunal that following her meeting with her business partner at the Starbucks café she went to the police and reported the incident – this was in 2013. She then told the Tribunal that she continuously pursued the issue with police ‘six times...’ and they did nothing. The Tribunal was then told that the applicant sought legal advice from lawyers (see, at paragraph 36) and was told by them ‘…that they were no longer interested in handling her case…’ because the applicant’s lawyers were called by her business partner and told ‘not to get involved in this issue.’ The Tribunal does not find the applicant’s explanation of events as credible. Indeed, the country information available to the Tribunal does not support the applicant’s claims that the Malaysian police and legal system are totally ineffective: DFAT Country Information Report – Malaysia; Department of Foreign Affairs & Trade (DFAT), 19 July 2016, at p. 25.
63.For the reasons given in paragraphs 59 to 62 above, the Tribunal does not accept that the applicant borrowed money from a man named … [Mr X] who had links with criminal gangs, as she claimed, nor that there is a real chance that she or her family members will face persecution involving serious harm because she has failed to repay money she had borrowed from this man if she returns to Malaysia now. Having considered the totality of the evidence before it, the Tribunal finds that neither the applicant nor any other member of her family included in this application has a well-founded fear of persecution for any Convention reason now and into the reasonably foreseeable future. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
64.The Tribunal having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reason given in paragraphs 59 to 62 above, the Tribunal does not accept that the principal applicant borrowed money from a man named … [Mr X] who had links with criminal gangs, as she has claimed, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm because the principal applicant has failed to repay money she has borrowed from this man. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Proposed grounds 1 and 3
Proposed grounds 1 and 3 of the Judicial Review Application make the same argument, that given its findings at CB 389-390 at [59]-[62] it was not open for the Tribunal to conclude at CB 392 at [63]-[64] that there was no loan agreement, having regard to the weight of evidence supporting a commercial relationship.
These grounds are misconceived, because they proceed on an incorrect understanding of [59] to [62] of the Tribunal Decision. At CB 389-390 at [59]-[62] the Tribunal questioned the credibility of CWX17’s evidence and found that:
(a)CWX17 had provided conflicting explanations as to Mr X’s sources of funds: CB 390 at [60];
(b)CWX17’s account of events regarding the alleged attempted kidnappings and her continued operation of her business interests despite threats from Mr X was not credible: CB 390 at [61]; and
(c)CWX17’s evidence that the Malaysian police and legal system are totally ineffective was inconsistent with country information.
The only favourable finding made at CB 389-390 at [59]-[62] was the acceptance that CWX17 was “a business woman, who had various business interests in Malaysia”. That finding did not require the Tribunal to find that there was a loan agreement between CWX17 and Mr X. Merely because there was a commercial arrangement between CWX17 and Mr X does not mean, or require, that there be a loan agreement between them. The Tribunal’s credibility findings provided sufficient justification to reject the claim that there was a loan agreement between CWX17 and Mr X. In that regard the Court observes that the Tribunal was not required to uncritically accept all or any of the claims made by the Applicants, or have rebutting evidence before it could decide not to accept their claims: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 at [36]-[37] per Judge Given (citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In relation to unreasonableness and illogicality the Court observes that:
(a)for the Tribunal Decision to be found to be affected by jurisdictional error on the ground of unreasonableness or illogicality, the Tribunal Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: 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] and [135] per Crennan and Bell JJ;
(b)SZMDS sets a very high threshold for finding illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish illogicality: SZMDS at [131] per Crennan and Bell JJ, and that for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 (“DAO16”) at [4] and [30] per Kenny, Kerr and Perry JJ;
(c)the factual findings of the Tribunal must be rationally made and based on probative material and logical grounds: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [40]-[55] per McKerracher, Griffiths and Rangiah JJ.
There is no illogicality or unreasonableness in the Tribunal not accepting that the CWX17 had borrowed money in the manner claimed or that she faced a real risk of harm because she failed to return that money because:
(a)the Tribunal was not required to accept CWX17’s version of events merely because it had accepted she was a business woman and that personal loans existed in Malaysia;
(b)the rationale for impugning CXW17’s evidence as set out at [50] above is based on rational and probative evidence and does not ascend to the level of illogicality, let alone “extreme illogicality”: CQG15 at [40]-[55] per McKerracher, Griffiths and Rangiah JJ; DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ; and
(c)it was a separate consideration for the Tribunal to decide whether a personal loan existed and whether the Applicants faced harm on that basis.
In relation to the weight accorded to the evidence of any commercial relationship between CWX17 and Mr X and the establishment of a loan agreement the Court observes that the Tribunal’s fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is nothing in the Tribunal Decision which suggests that its findings of fact were not open to it or were made otherwise than in accordance with the law.
In the circumstances set out at [49]-[54] above there is insufficient merit in proposed grounds 1 and 3 to make them reasonably arguable.
Proposed ground 2
Proposed ground 2 seems to argue that the Tribunal should have given weight to information that the Department had received, and which was the subject of a certificate and notification issued under s 438(1)(b). That information was that CWX17 was allegedly involved in taking money from people in Australia on the promise of obtaining visas for them. The Tribunal considered this information at CB 388 at [56]. The Tribunal found that the information was not relevant to deciding whether CWX17 faced harm from Mr X in Malaysia. The Tribunal therefore gave the information in the documents no weight. That reasoning was manifestly intended to be favourable to CWX17, and it is not apparent how it might establish any error in the Tribunal Decision. Insofar as the second ground might be intended to assert that consideration of the information was necessary because the allegations (that CWX17 was taking money from people in Australia on the promise of obtaining visas for those people) somehow provided a link to Mr X in Malaysia that bare assertion is not supported by any material fact or facts that suggest any link between the alleged migration visa activities of CWX17 in Australia and her business relationship with Mr X in Malaysia or any alleged threats or activities by Mr X in relation to CWX17, or indeed any of the Applicants.
It follows that there is insufficient merit in proposed ground 2 to make it reasonably arguable.
Existing ground
The existing ground as set out in the Judicial Review Application (filed 28 June 2017) is based on concepts of presumption of innocence at common law and derogation from obligations under the International Covenant on Civil and Political Rights which are entirely misconceived in the context of this matter, and which give rise to no reasonably arguable case.
Alleged third party fraud on the Tribunal
By reason of the Court’s orders of 16 April 2024 the Applicants were afforded the opportunity to provide written submissions on any alleged third party fraud on the Tribunal. The Applicants did not avail themselves of that opportunity.
The factual matrix for the alleged third party fraud on the Tribunal is set out in CWX17 at [9]-[11] per Judge Lucev which is set out in full at [12] above. The Court notes that on 16 April 2024 CWX17 asserted at Transcript, 16 April 2024, p 9 that:
(a)“I gave those documents to my lawyer, Maria, but she didn’t submit any documents and she hired a barrister … two or three police reports and some documents regarding the company she didn’t submit. And I hired a second lawyer”; and
(b)“I hired a second lawyer – Matt – and it was the same and I had to do it all myself”.
Fraud by a third party will vitiate an administrative decision-maker’s decision where the fraud stultifies the decision-making processes: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 (“SZFDE”). Fraud is a serious allegation which must be distinctly made and proved: SZFDE at [15] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ (citing Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713).
The relevant legal principles in SZFDE were summarised in SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73; (2014) 307 ALR 31; (2014) 138 ALD 437 (“SZSXT”) at [51] per Perram, Robertson and Griffiths JJ by the Full Court of the Federal Court as follows:
(a)in the framework of general legal principle, fraud can come in various guises and is “infinite in variety”;
(b)different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution;
(c)“fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith”;
(d)in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud;
(e)another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted”;
(f)in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative; and
(g)there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time. But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised.
In SZSXT the Full Court of the Federal Court at [52] per Perram, Robertson and Griffiths JJ observed that:
It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17, the Full Court (Tamberlin, Finn and Dowsett JJ) emphasised the necessity of demonstrating that an agent's fraud in dealing with a visa applicant has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. In that case, a protection visa applicant complained that he had failed to attend an adjourned hearing of the Tribunal because his migration agent had not advised him of the hearing. The Full Court held that the evidence concerning the conduct of the agent could not support a finding of fraudulent conduct by that person which caused the visa applicant not to attend the adjourned hearing. The Full Court found that no inference could be drawn that it was the agent's dishonest failure that resulted in the applicant not being told about the adjourned hearing and that it was equally probable that the failure was due to an error or omission on the part of the agent. At [33], the Full Court said:
…[A]n agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Pt 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects ([sic]) the tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal proceeds to make a decision under s 426A in the applicant's absence. But before that omission can properly be said to have occasioned a fraud on the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-a-vis the visa applicant: SZFDE at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368; [1938] ALR 334 at 342-3 and 344-5 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.
Apart from the bare assertion made at the 16 April 2024 hearing, and notwithstanding having been afforded sufficient opportunity to do so, the Applicants have not provided any evidence to support the allegation that they provided additional documents to their previous representative that were not then provided to the Tribunal. No police reports have been produced in these proceedings which might support the allegation made in Transcript on 16 April 2024 and set out at [60] above. Insofar as company documents are concerned those produced in these proceedings and ruled to be inadmissible: see [30] and [32] above, are dated 10 March 2024, which is more than seven years after the making of the Tribunal Decision on 30 May 2017: CB 377. At the time of the publication of the Tribunal Decision Ms Maria Psihogios, a registered migration agent, and also a partner at PB&B Lawyers, was the Applicants’ representative: CB 374, and had been so since the lodgement of the review application with the Tribunal on 23 July 2015: CB 263-265. There was therefore only one lawyer involved throughout the Tribunal proceedings on behalf of the Applicants, that being Ms Psihogios. The reference to a second lawyer – “Matt” – is a reference to a lawyer who was only contacted by CWX17 after the Tribunal Decision had been published on 30 May 2017 to assist the Applicants with the drafting of the Judicial Review Application: see the Affidavit of CWX17 made on 18 April 2023 at [7] where CWX17 says:
On or around 6 June I contacted a lawyer named “Matt”. At the time I was looking for a lawyer to help me file an appeal to the Federal Circuit Court (FCC) which had been refused at the AAT.
In the circumstances it is evident that Ms Psihogios was the Applicants only lawyer throughout the Tribunal proceedings.
Ms Psihogios provided the Tribunal with various documents on behalf of the Applicants in support of their application, on:
(a)8 November 2016: CB 281-309, which included:
(i)a response to the Tribunal’s hearing invitation;
(ii)a Statutory Declaration of CWX17 sworn 2 November 2016 (“CWX17’s November 2016 Statutory Declaration”), in which at [15]-[16] at CB 287-288 she made allegations about complaining to the police in Malaysia after being threatened by Mr X, the level of police assistance received, and police corruption in Malaysia; and
(iii)“[e]vidence of prominent business activities and business links in Malaysia” comprising almost exclusively photos of what appear to be business and networking activities and engagements in Malaysia;
(b)22 February 2017: CB 340-350, which included:
(i)certificates of expiry for four business entities in Malaysia;
(ii)photographs of CWX17 at community events in rural Victoria; and
(iii)an article about an award given to CXB17; and
(c)23 February 2017: CB 351-372, said to include:
(i)Australian Business Register registration letter dated 12 February 2016;
(ii)ATO – GST registration letter dated 15 February 2016;
(iii)ATO – PAYG registration letter dated 15 February 2016;
(iv)Copy of real estate lease signed 15 March 2016;
(v)BAS for July - September 2016 quarter;
(vi)BAS for April - June 2016 quarter;
(vii)letter to CWZ17 from Sunraysia Institute dated 27 January2017 regarding a training award;
(viii)copy of a Student of the Week Award to CXC17;
(ix)copy of a Student of the Week Award to CXB17;
(x)copy of a newspaper article regarding CWX17’s restaurant business;
(xi)copy of an article regarding Mallee Family Care; and
(xii)a Magistrates' Court Undertaking dated 9 November 2016 signed by CWX17 (but which does not appear in the CB).
In the absence of any evidence from the Applicants to support their allegation, there is no basis to infer that Ms Psihogios would not have provided documents to the Tribunal on behalf of the Applicants if requested to do so, given that she provided other documents on other occasions. Further, even if the Applicants were able to show that additional documents were provided to Ms Psihogios and not passed onto the Tribunal there is no basis to infer that there was any bad faith in Ms Psihogios failing to do so, as opposed to an error or oversight on her part. Mere negligence, inadvertence or incompetence on the part of a lawyer or representative will not constitute fraud on the Tribunal: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 (“SZLIX”) at [33] per Tamberlin, Finn and Dowsett JJ.
Critically, the Applicants have not provided a copy of the documents that CWX17 alleges were provided to Ms Psihogios to pass onto the Tribunal. Without a copy of the documents allegedly not provided to the Tribunal by Ms Psihogios it is not possible for this Court to assess whether any failure to provide them to the Tribunal had the effect of disabling the Tribunal from conducting its review. It is not clear whether the documents were relevant to the Tribunal’s review or whether they provided any information that was not already before the Tribunal. The Tribunal already had before it:
(a)a Malaysian Police report dated 9 April 2013: CB 233-237;
(b)CWX17’s allegations about her reports to police and police corruption in CWX17’s November 2016 Statutory Declaration at [15]-[16] at CB 287-288;
(c)documents about CWX17’s company and businesses in Malaysia: CB 192-197 and 343-346;
(d)CWX17’s oral evidence to the Tribunal about her businesses: CB 383 at [20]-[21].
In the circumstances, an inference that documents were not provided to the Tribunal by Ms Psihogios by reason of fraud is not open on the evidence before the Court. The inference is open that it is equally probable that if there was such a failure by Ms Psihogios it was due to good faith error or omission by Ms Psihogios, and such an error or omission would not therefore constitute jurisdictional error: SZLIX at [33] per Tamberlin, Finn and Dowsett JJ; SZSXT at [52] per Perram, Robertson and Griffith JJ.
CWX17’s oral submissions at the hearing on 16 April 2024 alleging third party fraud on the Tribunal do not reveal that the alleged third party fraud has sufficient arguable merit to give rise to a reasonable prospect of success.
Case management and overarching purpose considerations
Setting aside the Dismissal Orders would mean that the Judicial Review Application would be reinstated to the Court’s list of matters to be heard. That requires the Court, when determining how it ought to exercise its discretion on the Set Aside Application, to consider case management issues and, in particular, the overarching civil practice and procedure provisions of s 190 of the FCFCOA Act. Section 190(1) and (2) of the FCFCOA Act provides that:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
It follows from the above that for the purposes of s 190(1) and (2) of the FCFCOA Act the factors for consideration in relation to whether to set aside the Dismissal Orders include whether setting aside the Dismissal Orders might facilitate:
(a)the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible;
(b)the efficient use of the Court’s judicial and administrative resources; and
(c)the efficient disposal of the Court’s caseload.
The factors in the preceding paragraph can to some extent be informed by earlier judgments concerning case management considerations, and might therefore include matters referred to in Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625 and Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14, such as:
(a)the effect on the Court’s resources; and
(b)the effect and possible detriment to other litigants in other cases awaiting listing for hearing before the Court.
To reinstate this matter to the Court’s lists by setting aside the Dismissal Orders would be contrary to the objects of the over-arching civil practice and procedure provisions in s 190(1) and (2) of the FCAFCOA Act as it would:
(a)reinstate a matter in respect of which there is not a reasonably arguable case, and thereby it would not facilitate the just resolution of the dispute;
(b)cause unnecessary and unwarranted delay in the resolution of the matter;
(c)result in the incurring of further costs for the Minister, but also expense to the taxpayer by the unnecessary wastage of the Court’s time and resources;
(d)cause inefficiencies by having another hearing, thereby causing delay in listing a hearing or hearings for another litigant or litigants. This is a particularly relevant consideration in circumstances, where, as is notorious, this Court has, for some years now, had delays of several years in the hearing of migration judicial review cases, and a backlog of more than 16,000 migration judicial review cases filed but not yet listed for hearing: see, for example, the observations in AFP21 v Minister for Immigration, Citizenship, Migrant Services and 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]-[8] per Judge Lucev, and Annual Report of the Federal Circuit and Family Court of Australia (Division 2), 2023-2024, p 140 (17,387 pending cases as at 30 June 2024).
In the circumstances, consideration of the objects of the over-arching civil practice and procedure provisions in s 190(1) and (2) of the FCAFCOA Act weighs heavily against the setting aside of the Dismissal Orders.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)both the now proposed and existing grounds of judicial review do not have sufficient merit to give rise to reasonably arguable prospects of success for the Judicial Review Application; and
(b)the objects of the over-arching civil practice and procedure provisions in s 190(1) and (2) of the FCFCOA Act weigh heavily against the setting aside of the Dismissal Orders,
and in the above circumstances the Amended Set Aside Application ought to be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 26 June 2025
SCHEDULE OF PARTIES
MLG 1384 of 2017 Applicants
Fourth Applicant:
CXB17
Fifth Applicant:
CXC17
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