EAL21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1538
•23 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EAL21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1538
File number: MLG 2872 of 2021 Judgment of: JUDGE FORBES Date of judgment: 23 September 2025 Catchwords: MIGRATION – judicial review – protection visa –application to Administrative Appeals Tribunal – procedural fairness – fraud – where migration agent engaged in fraud in lodging visa application – where migration agent did not inform applicant of invitation to attend Tribunal hearing – applications dismissed for non-appearance - whether third-party fraud stultified the decision making of the Tribunal – whether Tribunal constructively failed to exercise statutory duty because of fraud – whether the applicant was recklessly indifferent as to the fraud – writs issued Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 425(1), 426A(1A)(b), 426A(1B), 426A(1E), 426B(2), 426B(5), 441A(5) Cases cited: Gill v Minister for Immigration & Border Protection [2016] FCAFC 142
Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; (2019) 269 FCR 464
Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211; [2008] FCA 600
SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73; [2014] FCAFC 40
SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146; 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of last submission/s: 7 November 2024 Date of hearing: 7 November 2024 Place: Melbourne Counsel for the Applicants: Mr Yuile Solicitor for the Applicants: Bardo Zouki Noureddine Lawyers Counsel for the First Respondent: Ms Lucas Solicitor for the First Respondent: Sparke Helmore Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2872 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EAL21
First Applicant
EAM21
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
23 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.A writ of certiorari issue quashing the decisions of the Administrative Appeals Tribunal made on 8 October 2021 and 22 October 2021.
3.A writ of mandamus issue be directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
4.The First Respondent pay the Applicants’ costs of and incidental to the proceeding as agreed or in default of agreement, to be taxed pursuant to the Federal Court Rules 2011 (Cth).
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
The applicants each seek the grant of protection visas pursuant to ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
On 15 January 2020, a delegate of the Minister (the Delegate) refused to grant the protection visas. On 28 January 2020, the applicants made an application to the second respondent (Tribunal) for review of the Delegate’s decision[1].
[1] Court Book, 59 (CB).
The applicants did not attend a scheduled hearing at the Tribunal and their application was dismissed pursuant to s 426A(1A)(b) of the Act. They did not seek reinstatement of their applications. On 22 October 2021, the Tribunal confirmed its earlier decision to dismiss the application for review by reason of the applicants’ non-appearance (confirmation decision).
Pursuant to an amended application filed on 7 October 2024, the applicants seek judicial review of the Tribunal’s confirmation decision. The application asserts one ground of jurisdictional error, being that the Tribunal’s decision to dismiss the applicants’ case for non-appearance was the result of fraud by a third-party, which stultified the decision-making process.
It is not disputed by the parties that the Tribunal proceeded with its review of the delegate’s decision in accordance with the relevant provisions of the Act. In the case of a review, s 425(1) of the Act requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision. Section 441A(5) of the Act provides that a Tribunal may give documents to a person by directing them to the email address provided to the Tribunal in connection with the review. In correspondence directed to their representative, the applicants were invited to attend the s 425 hearing but they failed to attend.
Section 426A of the Act applies where an applicant fails to appear before the Tribunal at the scheduled hearing time. Among other things, the Tribunal may, under s 426A(1A) of the Act dismiss the application without further consideration of the application or information before them. If the Tribunal makes a ‘non-appearance decision’, then, under ss 426B(2) and 426B(5) it must make a written statement that sets out the decision and the reasons for making the decision, and provide a copy of the decision to the applicant via one of the communication methods prescribed in the Act.
Section 426A(1B) of the Act allows an applicant to seek reinstatement of their application within 14 days of receiving notice of the decision. Pursuant to s 426A(1E), if the applicant fails to apply for reinstatement within the 14-day period, the Tribunal must confirm the decision to dismiss the application. As mentioned, the applicants in this case did not apply for reinstatement and the Tribunal was therefore required to confirm the dismissal.
The issue in this case arises from the applicants’ claim that they were assisted in the preparation of their visa applications by a woman named Ms Suni Detkunram (Ms D). According to the applicants, Ms D held herself out to be a registered migration agent and they trusted in her. The applicants allege that Ms D completed and lodged visa applications on their behalf containing contact details including email and postal addresses known only to Ms D. The applicants claim that these avenues of contact were unknown to and inaccessible by them.
The applicants therefore contend that their lack of awareness of the Tribunal review proceedings occurred due to Ms D’s fraud. They allege that she charged them for representation, yet Ms D failed to inform them about the hearing or the consequences of non-attendance. By reason of Ms D’s allegedly fraudulent conduct, the applicants submit that the Tribunal was unable to discharge its obligations under s 425 of the Act.
Having heard and considered the parties’ submissions, I am satisfied that the decision of the Tribunal was affected by jurisdictional error. Accordingly, the applicants are entitled to the relief sought in the amended application.
BACKGROUND
The applicants are both nationals of Thailand. The first applicant (the applicant) was the primary applicant for a protection visa. The second applicant is the applicant’s male partner.
On 15 October 2018 the applicant attended an appointment with Ms D with the intention of obtaining assistance for a visa [2]. The applicant says she was recommended to Ms D by a friend and understood her to be someone who was permitted by Australian law to assist with protection visa applications.
[2] Affidavit of EAL21 filed 8 August 2023, 2.
The applicant claims that at her meeting with Ms D she provided a copy of her passport, signed visa application forms and was told not to worry about the visa process. This was, according to the applicant, the only time she met Ms D in person. There is no evidence of the second applicant’s involvement in the process.
On 23 October 2018 an application was lodged for protection visas[3]. The application records a claim by the applicant that she witnessed a crime in Thailand and has subsequently attracted the ire of the criminal entity involved because she provided information to the police. The application states a claims that the applicant could not trust the authorities to keep her safe. The second applicant makes exactly the same claims for protection, based on the same incident.
[3] CB, 1-33.
This application listed the applicant’s residential address as 62 Springvale Road, Springvale and her email address as [email protected][4] . The application form nominated Ms D as authorised recipient with a postal address of 9 Holt Court, Springvale South[5].
[4] CB, 11.
[5] CB, 33.
At or about the time of the application it appears that an appointment of authorised representative was lodged, recording the name of the first applicant and the business or residential address as 62 Springvale Road, Springvale. An acknowledgment of the visa application was posted to that address[6].
[6] CB, 37.
On 15 January 2020, a delegate of the Minister refused to grant the visa[7]. In their decision record the delegate noted that the applicants had been given an opportunity to provide details of their protection claims and that the application form they completed had informed them that they should provide all documentation and other evidence which supported their claims. The delegate noted that the applicants had also been sent an acknowledgement of their application and advice as to the various ways they could provide additional information.
[7] CB, 48-58.
By the time of the delegate’s decision, no additional information had been provided and the decision was made on the application form alone. Notification of this decision to refuse the visas was posted to the Springvale South postal address identified in the application.
On 28 January 2020, an application was made to the Tribunal for review of the Delegate’s decision[8]. This application contained a new email and postal address for receiving correspondence, being [email protected] and 62 Springvale Road, Springvale VIC 3171 respectively[9]. The application also noted that correspondence should be directed “To the review applicant”.
[8] CB, 59.
[9] CB, 60.
On 29 January 2020, the Tribunal emailed the applicants at [email protected] to acknowledge receipt of the applications for review.
On 1 September 2021, the Tribunal emailed the applicants via their nominated email address and invited them to provide a contact telephone number for the purpose of the review[10]. There was no response to that email.
[10] CB, 64.
On 21 September 2021, the Tribunal invited the applicant by email to attend a hearing via telephone on 6 October 2021[11]. This invitation provided a telephone number and conference ID for the applicant to dial at the time of the hearing. They further invited the applicants to provide all documents upon which they intended to rely at the hearing. The applicants did not respond to this request.
[11] CB, 65-68.
The applicants did not attend the scheduled hearing on 6 October 2021. The Tribunal was unable to contact the applicants by telephone as they had not given the Tribunal a telephone number[12].
[12] CB 75-76.
On 7 October 2021, due to the applicant’s non-appearance, the Tribunal dismissed the application for review under s 426A(lA)(b) of the Act[13] and the applicants were invited to reinstate their application by 21 October 2021[14]. Notification of the Tribunal’s decision and the possibility to apply for reinstatement was sent to the naphatn730 email address. No reinstatement application was made.
[13] CB, 74-76.
[14] CB, 74.
On 22 October 2021, the Tribunal affirmed its decision to dismiss the matter for non-appearance and on 26 October 2021, the Tribunal emailed the applicants notifying them that it was required to confirm the 7 October 2021 decision to dismiss their application due to their failure to apply for reinstatement[15].
[15] CB, 81-82.
APPLICATION FOR JUDICIAL REVIEW
Pursuant to an amended application filed by the applicants on 7 October 2024, the applicants now seek a remedy in exercise of this court’s jurisdiction under s 476 of the Act.
They seek an order that the decision of the Tribunal be quashed and a writ of mandamus be issued. Their application sets out one ground of review, that the Tribunal committed jurisdictional error in affirming its decision to dismiss the applicants’ case for non-appearance due to the fraud of a third-party.
The applicant’s case is, that due to Ms D’s fraud, the invitation to the October 2021 hearings were not communicated to her, thereby stultifying the Tribunal’s decision-making and preventing it from discharging its statutory obligations under s 425 of the Act.
I heard the application for judicial review on 9 November 2024. Mr Yuile represented the applicants, and Ms Lucas represented the Minister.
Prior to the hearing, each party filed an outline of submissions and bundle of authorities. The Minister also filed a court book.
The applicants had filed two affidavits, on 10 October 2023, and 5 September 2024, upon which they intended to rely. The applicant also sought to rely on a third affidavit, sworn by their solicitor on 24 September 2024, which explained a mistake which had occurred when compiling the first applicant’s October 2023 affidavit. In addition to that evidence, the applicant sought to tender a Departmental report into Ms D’s activities, the relevance of which I discuss later in these reasons. The Departmental report (in heavily redacted form) was accepted into evidence by agreement. Finally, the applicants rely on admissions to a notice to admit facts issued to the Department.
Shortly prior to the hearing, the Minister prepared a supplementary expanded court book which included a copy of the applicant’s amended application and two affidavits of Thomas Greenaway, a solicitor, which annexed various emails, texts and other documents (and English translations of same) which had been produced by the applicant in response to a Notice to Produce. No objection was raised to the additional documents.
LEGAL PRINCIPLES
Fraud on a Tribunal can result in jurisdictional error
The parties largely agree on the applicable legal principles as to when third-party fraud can give rise to jurisdictional error in the context of migration proceedings.
When the issue of fraud is raised in relation to Tribunal hearings, the primary question is whether the Tribunal was disabled or “stultified” from discharging its fundamental statutory functions with respect to the conduct of the review[16].
[16] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 206; [2007] HCA 35 at [49]; (SZFDE).
In the seminal case on third-party fraud on a Tribunal, the High Court majority in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE) said at 206 (emphasis added):
concomitant [with the act of fraud] is the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud [of the third party] it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal…
…the consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all.
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”[17].
[17] SZFDE at 199; [22].
The applicants bear the ‘heavy burden’,[18] or onus of satisfying the court first that the fraud alleged was a fraud upon them (including that they were not complicit in or indifferent to it) and secondly that the fraud “stultified” the visa application and determination processes. That is, there must be a fraud “on” the decision-maker, in the sense of the fraud affecting the decision-maker’s statutory functions and obligations, or adversely affecting, disabling or stultifying the processes the Act prescribes. [19]
[18] SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146 at [51]; (2013) 216 FCR at 445 (SZRUR).
[19] Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464 at 477; [2019] FCAFC 53 at [56] (Kaur); Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at 24; [2017] FCAFC 213 at [102] (Maharajan).
In Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398 (Gill) the Full Court said at 410:
We accept the appellant’s submission that the operation of provisions such as ss 45 to 48 and 98 of the Migration Act and PIC 4020 can be affected by the fraudulent conduct of a migration agent in circumstances where the visa applicant has not colluded in that fraud and there is no evidence to support a finding that the visa applicant was indifferent as to whether the agent used unlawful or dishonest means to obtain a visa. As noted above, the Minister ultimately did not contest that s 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.[20]
[20] Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398 at 410; [2016] FCAFC 142 at [50] (Gill).
As to what constitutes fraud on the applicant
Fraud can come in various guises and is “infinite in variety”.[21] In a case of alleged fraud, the court exercising judicial review may take account of any relevant material placed before it, subject to any applicable procedural and evidentiary rules[22]. It is critical to pay close attention to both the particular facts and circumstances in which the issue of fraud arises and also to the terms of any specific legislative provision which may be affected by the fraudulent conduct of a third party, such as a migration agent[23].
[21] SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 at 82; [2014] FCAFC 40 at [51]; SZFDE at [8]; 194.
[22] SZFDE at 203; [38].
[23] Gill at 410; [47].
Failure on the part of the third-party agent to inform a visa applicant of a hearing date, or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal[24]. Before an 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-à-vis the visa applicant[25].
[24] Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [33].
[25] SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211 at 230; [2008] FCA 600 at [48].
In Kaur, the Full Court at [151] accepted the Minister’s submission that there will be no stultification or disabling effect on the decision-maker if the visa applicant is complicit in the fraud. The Full Court continued:
Similarly, there will be no such effect if the visa applicant is recklessly indifferent or wilfully blind to the fraud, which is what in our opinion “indifference” means in this context. With both states of mind, or conduct, the exercise of power has miscarried with the participation of the visa applicant and no relief can flow: the visa applicant is fixed with the consequences of her or his conduct, which has been found to be dishonest, alongside the third party fraudster.
Accordingly, the court must make findings as to whether or not the applicant(s) colluded in, was recklessly indifferent, or wilfully blind to the fraud perpetrated on the Tribunal by the third party[26]. In cases of fraud in public law, often the credibility of the applicant is central to the question the court must resolve[27].
[26] Gill at 409; [49].
[27] Kaur at 510; [178].
As to what constitutes reckless indifference (or wilful blindness)
The finding of reckless indifference or wilful blindness is a task that requires a careful determination based on probative evidence; an applicant found to be recklessly indifferent or wilfully blind is close to a finding of intentional or deliberate dishonesty[28]. Naivety, ignorance, helplessness or fear, are states of mind that must be distinguished from the concept of reckless indifference[29].
[28] Kaur at 501; [137]-[138].
[29] Kaur at 501; [137]-[138].
In Gill at [48] the Full Court opined:
…In our view, it is one thing to conclude, on the basis of relevant evidence, that a visa applicant, having retained the assistance of a migration agent, gives his or her general authority to that agent to do whatever is lawful and proper to achieve the visa applicant’s objective of obtaining a particular visa, as opposed to a visa applicant placing such matters in the hands of a migration agent and being indifferent to whether the migration agent uses lawful or unlawful means to achieve the visa applicant’s objective of obtaining a visa.
In explaining the application of the term ‘reckless indifference’, the Full Court in Gill at [49] framed it as the:
relevant distinction between an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly.
Consideration of cases involving issues of fraud in particular circumstances may be distinguished from common law principles of agency[30]. These issues are sui generis, and their determination must involve a consideration of the relevant terms and effects of the legislative provisions, such as the extensive provisions relating to registered migration agents[31].
[30] SZFDE at 199; [22].
[31] Gill at 410; [52].
In the course of such consideration, the Full Court in Gill found it to be understandable for a person who does not speak English, or who has no knowledge of the Australian legal or migration system, to retain a migration agent in order to obtain a visa[32]. In such a scenario, it would be entirely unsurprising for the applicant to be reliant upon the agent to take reasonable steps in order to obtain this visa. What may be described as the applicant’s ‘indifference’ to the agent’s conduct, which results from a lack of knowledge of the application process, may not necessarily extend to the ‘reckless indifference’ of authorising the agent to engage in fraud or dishonesty[33].
[32] Gill at 410; [51].
[33] Gill at 410; [51].
EVIDENCE
To explain the factual circumstances giving rise to the alleged fraud, the applicants relied on the two affidavits of the first applicant, filed 10 October 2023, and 5 September 2024. At the judicial review hearing the applicant adopted those affidavits as her evidence in chief.
The first applicant was cross-examined on the content of her affidavits and was assisted by a Thai interpreter. She gave evidence in relation to her arrival in Australia, her relationship with Ms D, and her specific, general and constructive knowledge of the visa application process.
Summary of the Applicant’s evidence
The applicant gave evidence that she arrived in Australia on or around 29 January 2016 on a student visa to study cookery[34]. Prior to coming to Australia, she worked as a practical nurse in Thailand.
[34] Transcript, 34.
After her student visa ended in around 2019, she began working on a farm packing vegetables, a job she obtained through a friend she met in Australia[35]. The applicant told the court that she wanted a visa to stay and work in Australia. She was introduced to Ms D by a different friend, whom she claimed to have met at a massage shop. This friend described Ms D as a lawyer who helped with visa applications. The applicant did not know if this friend had personally been assisted by Ms D but recalls being told that Ms D had helped others, including people working on other farms.
[35] Transcript, 10-13.
The applicant contacted Ms D. She did not specify the type of visa she sought, just that she wanted to obtain a visa in order to remain in Australia, to work and earn money[36]. She acknowledged that her student visa had work restrictions and that she applied for a visa in October 2018, which she thought would allow her unlimited work rights.
[36] Transcript, 12-13.
In her affidavit, the applicant swore that on 15 October 2018 she attended an appointment with Ms D, their first and only face-to-face meeting, with the intention of obtaining assistance for a visa. The applicant said she attended an office which was set up professionally. She claimed that Ms D and her associate ‘Papan’ represented themselves as operating a business and having expertise which assisted people in obtaining visas.
When cross-examined the applicant gave a different account of how the meeting came about. The applicant said she and her partner initially met up with Ms D at a park where she was playing with her child. The applicants then followed Ms D in their car to Ms D’s house[37].
[37] Transcript, 16.
During this first and only meeting, the applicant says she provided personal details such as her name, address, phone number, occupation and job history in Thailand. The applicant said that she signed a visa application, gave Ms D a copy of her passport and paid $1,500 in cash for both herself and her partner (a total of $3,000).
The applicant said she believed Ms D was a lawyer and trusted her to handle the visa process. Ms D informed the applicant that she would contact her if she required any further information or instructions.
When cross-examined, the applicant said she that did not see the visa application form before it was lodged and did not have access to the email address or phone number used in the application[38]. She stated she did not know exactly what type of visa she was applying for and that she did not ask Ms D for any details. The applicant agreed to the cross-examiner’s suggestion that she was at the time only interested in staying in Australia and that it did not matter what kind of visa was being sought.
[38] Transcript, 36.
Later in her evidence the applicant said she understood that Ms D was going to apply for a bridging visa. The applicant could recall giving Ms D information about her name, telephone number and previous employment, but could recall little else.
The applicant was challenged on the claim in her affidavit that she specifically sought out Ms D for the purposes of obtaining a protection visa. The applicant was asked whether she understood what a “protection visa” was. The applicant responded that she did not know and that Ms D had not explained anything to her. The applicant denied asking for a protection visa.
Later in the cross-examination when the applicant was asked whether she had any fear about returning to Thailand, she said she feared harm in Thailand due to a big debt with her partner’s mother. At that point the applicant recalled that she had told Ms D about the unpaid debt in their meeting. She recalled telling Ms D about the debt because she needed to stay in Australia to earn money to pay it off.
The applicant was further challenged on her appreciation of the various ‘steps’ in the visa process and the instructions given to Ms D to engage her assistance. She confirmed that she paid Ms D before each step in the process and that further payments were required for subsequent steps, including an appeal to the Tribunal.
In her affidavit, the applicant stated that the first time she became aware of any issues with her application was 3 March 2020. On that day she attended a Medicare office and was told by an officer that her protection visa application had been refused. The applicant claimed to have been shocked at this news. She claims to have contacted Ms D who informed her that she needed to wait, and that someone would send her a letter regarding her visa application which she could provide to the Medicare officer. The applicant also claimed to have no knowledge of the Department’s Visa Entitlement Verification Online (VEVO) service.
However, text messages[39] obtained by the Minister under a Notice to Produce revealed that Ms D had informed the applicant of the visa refusal and the lodging of an application for review on 28 January 2020, to which the applicant replied, “Thank you very much”. The applicant also conceded under questioning that it was around this time that she was informed she could use VEVO to get access to a Departmental platform which would provide updates on the status of her visa. Text messages show that the applicant was able to view VEVO by the end of January 2020 at the latest.
[39] Affidavit of Thomas Greenaway dated 7 November 2024, Annexure TG3 (Greenaway Affidavit).
The applicant admitted confusion about dates and acknowledged that she may have used the VEVO system earlier than stated in her affidavit. She explained that she did not check the details of her visa application or the appeal documents, as she was not allowed to see them and relied entirely on Ms D.
Documents produced by the Minister[40] from the Departmental file, show that after the applicant’s access to Medicare was suspended, emails were sent to the Tribunal from the address [email protected] seeking confirmation that an application for review had been lodged. This is consistent with a text exchange between the applicant and Ms D on 28 January 2020 where Ms D told the applicant that she would contact the Tribunal on her behalf[41]. The Tribunal responded to the correspondence believing it had come from the applicant. The Tribunal also sent a letter addressed to the applicant at [email protected] which confirmed the status of her application for Medicare purposes. That letter also confirmed the applicants postal address as 62 Springvale Road, Springvale.
[40] Affidavit of Tareena Martin dated 13 June 2023, Annexures TM1-TM5.
[41] Greenaway Affidavit, Annexure TG3.
The applicant asserts that in all communications with the Department and the Tribunal Ms D provided her own contact email address and postal address, rather than the applicant’s. The visa application and subsequent communications with the Department and Tribunal appear to confirm this. Given the applicant had no method of receiving the Tribunal’s correspondence, she claims to have had no knowledge that the Tribunal had requested further information from her, or of the invitations to any of the Tribunal hearings.
The applicant was questioned about her apparent indifference to the details of her visa application and whether she cared if unlawful means were used. She insisted that she was “interested” in the application and had trusted Ms D as a professional[42]. The applicant stated that she paid money before each step and that she expected Ms D to organise everything but denied being complicit or indifferent to any fraud.
[42] Transcript, 36, 41.
Tendency evidence
The applicants tendered a confidential but heavily redacted Departmental briefing document on Ms D. Without going into unnecessary detail, the applicant submitted that the report should be given weight as tendency evidence as Ms D’s dealings with other “clients” corroborated the applicant’s own experience. Counsel for the applicant submitted that the report revealed that Ms D had been or was suspected of being engaged in similar conduct against or on behalf of other individuals, including by:
(a)holding herself out to be a registered migration agent, or having the authority or expertise of such an agent;
(b)applying for protection visas using virtually the same, or similar, visa application details; and
(c)listing her own postal and email address in place of the personal addresses of the individual who purported to make the application.
Further, the applicants rely on admissions to a notice to admit facts issued to the Department. The Minister’s admissions confirm that:
(a)Ms D is known to the Department and the Department is aware that Ms D held herself out to be a migration agent;
(b)the Department is aware of other cases where Ms D created an email account purportedly in the name of her client;
(c)the Department is aware of other cases where Ms D completed forms for use with the Department that contained postal and/or email addresses for the client that did not belong to the client;
(d)Ms D’s actions have been the subject of investigation by the Department; and
(e)Ms D’s current whereabouts are unknown.
SUBMISSIONS
Submissions of the Applicants
The applicants submit that the only issue now before this Court is whether they were defrauded by Ms D and the Tribunal’s processes stultified by that fraud. There is no issue in the judicial review proceeding about the substance of the protection visa application or the decision by the delegate on that application.
Fraud vis-à-vis the applicant
Counsel for the applicants, Mr Yuile, submitted that the applicant did not understand precisely the nature of visa for which she was applying or the application process. Ms D held herself out to be a migration agent or a lawyer and the applicant understandably placed her trust in Ms D to perform all necessary tasks on her behalf.
Counsel submitted Ms D engaged in fraud not only by holding herself out to be an authorised migration agent when she was not, but in providing her own contact details on the visa applications such that she was able to withhold necessary information from the applicants. The applicant’s evidence is that those contact details were not and never have been contact points for the applicants.
By managing the application the way she did, Ms D positioned herself as the exclusive conduit for all communications about the visa progress and controlled the flow of information to the applicants. It was submitted that the applicant’s lack of knowledge of Tribunal processes, such as the right to attend a hearing, was the result of deliberate actions of Ms D which prevented the Tribunal from carrying out its proper legislative function in relation to the s 425 review.
Relying on SZFDE, the applicants submit that the fraud in this case went to the heart of the Tribunal’s statutory function because it subverted the Tribunal’s ability to invite the applicants to a hearing, thereby denying them procedural fairness. It is not to the point that the Tribunal acted on an assumption of regularity by sending the hearing notices to the address in the application form, believing that the applicants were on notice. The issue here, the applicants submit, is that the agent’s fraud intervened and prevented the due discharge of the Tribunal’s imperative statutory functions[43].
[43] SZFDE at 206; [51]; see also Minister for Home Affairsv DUA16 (2020) 271 CLR 550 at 560.
Collusion, reckless indifference or wilful blindness
Counsel for the applicant submitted that there was no evidence and no proper basis to infer that his clients were involved in the agent’s fraud.
It was submitted that the steps taken by the applicant to obtain her visa, and her evidence given in court, should be viewed through the lens of a vulnerable unsophisticated non-English speaking individual who has no practical understanding of a foreign country’s migration and visa system.
It was submitted that whilst the applicant could be said to have “actioned”’ or empowered Ms D to take certain steps on her behalf throughout the application process as indicated by the transfer of money, ultimately, the applicant was unaware of what these steps were. It was not that the applicant was ‘recklessly blind’ or ‘wilfully indifferent’ to the actions of the agent, rather she was uneducated as to the process. As such, the applicant placed her trust in an individual she believed to be professional expert in the expectation that Ms D would perform all tasks necessary to obtain a visa on her behalf; including that the expert would inform her if she was required to give further instructions or information.
As it turned out, Ms D charged fees and extorted money from the applicants without acting in their interests. Correspondence from the Tribunal inviting the applicants to a hearing was sent to the [email protected] address and the applicants were not told about it and could not have known about it without being told by Ms D. Correspondence from the Tribunal dismissing the application and inviting an application for reinstatement had the same fate.
On the subject of the [email protected] email address, the applicant acknowledged that it was used in the footer to her first affidavit but by mistake. In her second affidavit the applicant explains that she is not aware of how that email came to be inserted in the footer of the first affidavit. The applicant disowns this address and submits that it should not be inferred from the mistake in her affidavit that she had ever used or had access to that email address. An affidavit of Mr Paul O’Connor, a solicitor, states that he accepts responsibility for the error as he assisted the applicant with her evidence. I accept the explanation, but it is sloppy and should never have occurred.
Minister’s Submissions
The applicants bear the onus of proof
The Minister emphasised that a finding of fraud against anyone is a serious matter and not a finding a court should make without clear evidence. An agent who is negligent or who places his or her interests above that of their client is not necessarily fraudulent. Ms D of course did not appear in the hearing to defend the allegations or explain her motives. However, the Minister accepts that the court can draw inferences from the available evidence[44].
[44] SZFDE at 203; [38].
Taking all of the evidence into account, including the tendency evidence, the Minister submits that the applicants have not discharged the onus of proving fraud.
Reckless indifference
The respondent submitted the applicant was, at the very least, recklessly indifferent as to whether or not Ms D used unlawful or dishonest means to obtain a visa.
Counsel for the Minister submitted that the payments to Ms D were a sort of ‘standing instruction’ for Ms D to engage in whatever conduct would result in the applicant obtaining a visa. Even if the applicant herself did not engage in the fraudulent conduct, such as providing false information on visa application forms, the payments indicated a continuing authorisation for Ms D to take certain unlawful actions; to which the applicant was, if not complicit, then recklessly indifferent or wilfully blind.
The Minister’s counsel submitted that the applicant’s evidence given in cross-examination was inconsistent with the evidence in her affidavit and that she was a generally unreliable and unbelievable witness. It was submitted that these inconsistencies reflected attempts by the applicant to conceal the depth of her involvement in and knowledge of the agent’s fraud. Of particular note, the Minister submitted, was the applicant’s evidence given in respect of the point in time at which the applicant became aware of any issues with the application.
CONSIDERATION
I accept the applicants’ submission that Ms D’s conduct in taking money from the applicants and then taking actions without their knowledge or instructions and withholding from the applicants critical information about their case, including the listing of a Tribunal hearing at which they had the right to attend and present evidence, was fraud. It appears to be fraud of a type perpetrated by Ms D in the past against other similarly vulnerable and unwitting visa applicants.
Having found fraud, the ultimate question for this court, is whether the applicant, by collusion, reckless indifference or wilful blindness, can be taken to have engaged in or acquiesced in the fraud of the third party. If so, the Tribunal’s decision cannot be said to have been disabled or stultified.
I agree with the Minister that the applicant’s evidence about her involvement with Ms D and the visa process was vague and superficial. The applicant swore to the truth of two affidavits but she generally had a very poor familiarity with their content, and I infer she had substantial assistance in the preparation of them. That is not to suggest any impropriety on the part of those who assisted her, but I am inclined to the view that applicant was not really familiar with how her instructions found form in the affidavits she swore.
When tested in cross-examination, the applicant proved to be a poor historian, and her evidence departed in a number of material respects from what was said in her affidavits. She asserted her belief that Ms D was a lawyer and experienced agent who operated from a professional office. Her evidence in cross-examination that she initially met Ms D in a park, followed her to her house and then gave minimal information in their one and only face to face interaction would not have justified that belief.
The applicant also gave inaccurate and unpersuasive evidence about when she first became aware that her visa had been refused by the delegate. It was only when she was confronted with emails and text messages that she accepted that she was told by Ms D that an application had been made to the Tribunal for review and that she knew how to use VEVO.
In her final address, counsel for the Minister submitted that I should find the applicant was an untruthful witness and that her evasive and inconsistent evidence revealed an attempt to conceal the truth about what had gone on before. By extension the Minister contends that the court should infer that the applicant knew more about the nature of Ms D’s conduct than she was prepared to let on and that the applicant was, at the very least, recklessly indifferent to the dishonesty. There is some basis for the submission, but it is not the conclusion I reach.
The applicant’s evidence was cautious and uncertain; and where there are inconsistencies, I give greater weight to the answers she gave in cross-examination than to her evidence in chief. I am prepared to accept that as a non-English speaker and being unfamiliar with the migration system, the applicant felt overwhelmed and confused by the court process and the testing of her evidence. Her answers, through an interpreter, revealed a level of confusion. I also make allowance for the fact that the events in question occurred more than four years ago and that the passing of time can give rise to different accounts.
But what emerged from the evidence as a whole was in my view fairly clear. The applicant had been a student, but she had become illegal and was keen to stay in Australia to earn money. The applicant’s motive was to regularise her migration status and be allowed to live and work in Australia legitimately. There was no obvious protection motive.
I accept that the applicants found their way to Ms D via a network of friends or associates who knew of her reputation for being able to assist migrants to obtain visas. Although I harbour some reservations about the genuineness of the applicant’s belief that Ms D was a lawyer or registered migration agent, I accept that the applicants did believe that Ms D was a person who had a familiarity with the migration system and was able to assist them to get a visa.
I accept that the applicants believed Ms D understood a system which they did not and that she presented as knowledgeable and credible. Although the applicants can be taken as having not exercised any real due diligence and were probably not overly interested in the nitt-gritty about how their applications would be processed, I do not consider that they knew or even suspected that Ms D was a fraudster or would engage in fraudulent or unlawful means.
The Full Court in Gill found it understandable for a person who does not speak English, or who has no knowledge of the Australian legal or migration system, to retain a migration agent in order to obtain a visa[45]. In that circumstance, it would be entirely unsurprising for the applicant to be reliant upon the agent to take reasonable steps in order to obtain a visa. An applicant’s ‘indifference’ as to the agent’s conduct, which results from a lack of knowledge of the application process, does not necessarily extend to the ‘reckless indifference’ of authorising the agent to engage in fraud or dishonesty.
[45] Gill at 206; [51].
In Kaur, the Full Court held that naivety, ignorance, helplessness or fear, are states of mind that must be distinguished from the concept of reckless indifference. An applicant found to be recklessly indifferent or wilfully blind is close to a finding of intentionality or deliberate dishonesty, and such a finding requires a careful determination based on probative evidence.
In the present case, the applicants wanted a visa to remain in Australia and work. I doubt they were particular about the visa they wanted or even aware of the options available to them. I do not accept the applicant’s affidavit evidence that she gave instructions for a protection visa. Considering all of the evidence, I doubt the applicants knew what kind of visa was being sought on their behalf, but I cannot conclude that they authorised or would have been indifferent to Ms D concocting a story about them being a witness to a stabbing and being in fear of criminals and the police in order to press a claim for protection.
Core to the fraud in this case was Ms D’s modus operandi of keeping the applicants in the dark by controlling all communications about the visa application and its progress, including by creating unique email addresses. The evidence demonstrates that the applicants were to all intents and purposes unaware of what was going on. The applicants’ experience is reinforced by the tendency evidence relied upon by them.
Texts and emails show that the applicants made some efforts to engage with Ms D, but these efforts either went unanswered, resulted in an instruction to pay some more money, or were met with assurances that everything was fine and in hand. The applicants’ conduct is not consistent with them being recklessly indifferent to or complicit in what Ms D was doing outside their line of sight.
Can it be said that the applicants were so involved in the agent’s actions, whether by way of complicity, reckless indifference or wilful blindness, that they should be saddled with the same consequences or the same finding that they were involved in the fraud? In this case the answer is no.
Turning then to the vital question of whether there was a fraud “on” the decision-maker – that is, fraud affecting the decision-maker’s statutory functions and obligations, or adversely affecting, disabling or stultifying the processes the Act prescribes[46]. Or as asked in SZFDE, did the fraud disable the decision maker “from the due discharge of its imperative statutory functions with respect to the conduct of the review”[47]? The answer must be yes.
[46] Kaur at 477; [56]; Maharajan at 24; [102].
[47] SZFDE at 206; [51]-[52].
The visa application contained a claim for protection based on a narrative which was not provided by nor approved by the applicants. The application contained a postal address which was not that of the applicant and decision-makers were directed to communicate about the visa application by email to an address which was not known to or accessible by them. Ms D was able to take control of the visa applications and engage in this fraudulent endeavour because the applicants naively placed their faith in her.
This fraud led to the consequence that the Tribunal was not able to discharge its statutory obligation of inviting the applicants to a hearing where they could have presented arguments and evidence in support of their visa application. It may be that had the applicants been invited to and attended the hearing, the Tribunal may have affirmed the delegate’s decision. But that is not the point. It is the denial of the opportunity required by s 425 which gives rise to jurisdictional error.
DISPOSITION
The applicants bear the onus of establishing that the fraud alleged was a fraud upon them (including that they were not complicit in or indifferent to it) and secondly that the fraud “stultified” the visa application and determination processes. On the particular facts of this case, I am satisfied that the applicants have done so.
The applicants are entitled to the relief sought in their amended application. The decision of the Administrative Appeals Tribunal to dismiss the applications for non-appearance and the Tribunal decision to confirm that dismissal decision should be quashed. A writ of mandamus will issue directing the Administrative Review Tribunal to hear and determine the applications according to law.
I will hear the parties on the question of costs.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 23 September 2025
1
8
1