EHE20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 336
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EHE20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 336
File number(s):
MLG 3523 of 2020
Judgment of:
JUDGE GOODCHILD
Date of judgment:
13 October 2023
Catchwords:
MIGRATION – protection visa – decision of Administrative Appeals Tribunal (“Tribunal”) – application for extension of time – significant delay – unsatisfactory explanation for delay – no prejudice – no arguable case of jurisdictional error – allegation of fraud made at hearing – whether conduct of party third party amounted to fraud – no jurisdictional error – application dismissed with costs.
Legislation:
Migration Act 1958 (Cth) 425, 425A, 426A, 426B, 441A, 441C, 477
Migration Regulations 1994 (Cth)
Cases cited:
BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EBS17vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
Englezos v Secretary, Department of Social Services [2023] FCA 31
Gallo v Dawson (1990) 93 ALR 479
HamodvNew South Wales [2011] NSWCA 375
Jess v Scott (1986) 12 FCR 187
Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464
LamontvMalishus Limited (No 2) [2022] FCA 237
Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268
MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
SNYE v Minister for Immigration and Citizenship [2010] FCA 500
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZRUR v Minister for Immigration and Border Protection(2013) 216 FCR 445
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division:
Division 2 General Federal Law
Number of paragraphs:
125
Date of hearing:
3 May, 9 August 2023
Place:
Sydney
Applicant:
In Person
Counsel for the First Respondent:
Ms K. McInnes
Solicitor for the First Respondent:
Australian Government Solicitor
ORDERS
MLG 3523 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EHE20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
2.The applicant pay the first respondent’s costs incurred in the proceedings in the amount of $4,000.
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 GOODCHILD:
INTRODUCTION AND BACKGROUND
The applicant is a 31-year-old citizen of Malaysia who arrived in Australia on 2 August 2016 on a UD-601 Electronic Travel Authority visa.
On 25 October 2016, the applicant applied for a Protection visa (subclass 866).
On 21 March 2017, a delegate of the then Minister for Immigration refused to grant the applicant a protection visa as the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations.
On 3 April 2017, the applicant lodged an application with the Administrative Appeals Tribunal for review of the delegate’s decision. In that review application, the applicant provided an email address for service of documents, and also included a mobile number.
On 2 March 2018, the Tribunal sent an email to the applicant’s nominated email address inviting the applicant to attend a hearing on 3 May 2018. That hearing was rescheduled to 28 June 2018 and the applicant was notified of these changes via email on 26 April 2018.
On 21 and 27 June 2018, the Tribunal sent two SMS text messages to the applicant’s nominated telephone number reminding her of the scheduled hearing date.
On 27 June 2018, the applicant completed and returned to the Tribunal a ‘Response to hearing invitation’ form in which she answered “yes” to the question “[w]ill you take part in the hearing scheduled for 28 June 2018?”
At the Tribunal hearing on 28 June 2018, there was no appearance by or on behalf of the applicant. According to Tribunal records, a member of the Tribunal telephoned the applicant at 10.10 am on that day, but there was no answer.
As a result of the applicant failing to attend the Tribunal hearing on 28 June 2018, the Tribunal made a decision (“the Non-Appearance Decision”) to dismiss the applicant’s review application pursuant to s 426(1A)(b) of the Migration Act 1958 (Cth) (“the Act”). On the same day a copy of that decision was emailed to the applicant at her nominated email address. By correspondence attached to the email, the applicant was also informed she could make an application to reinstate her review application.
The applicant did not apply for reinstatement. As such, on 13 July 2018, the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) which, by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed. A copy of the Confirmation Decision was sent to the applicant by email on 13 July 2018.
By an Originating Application filed in this Court on 29 September 2020, the applicant seeks an extension of time to apply for judicial review of the Tribunal’s Confirmation Decision. The applicant does not refer in her application to the Tribunal’s Non-Appearance Decision of 28 June 2018 and this decision was not attached to the applicant’s Affidavit in support of her application. However, I treat this review application as an application with respect to both the Tribunal’s Non-Appearance Decision of 28 June 2018 and the Tribunal’s Confirmation Decision dated 13 July 2018.
Pursuant to s 477(1) of the Act, the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. The applicant is 789 days out-of-time in relation to the Non-Appearance Decision (dated 28 June 2018), and 774 days out-of-time with respect to the Confirmation Decision (dated 13 July 2018).
Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act to pursue her judicial review proceedings in this Court.
The applicant’s extension of time application proceeded to an electronic hearing before me on 3 May 2023. The applicant appeared unrepresented and an interpreter in the Malay language was present to assist her.
In the course of the hearing on 3 May 2023, the applicant raised an allegation that she had been the victim of fraud by a migration agent. Given this allegation, I provided the parties an opportunity following the hearing to file further evidence and written submissions in relation to this issue. The proceedings were listed for a further day of hearing on 9 August 2023 and at the hearing the applicant again appeared unrepresented, while the first respondent was represented by counsel. Each party addressed me on the issue of fraud on this day.
This Judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court concludes that an extension of time should not be granted.
LEGAL PRINCIPLES - EXTENSION OF TIME
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period within which a substantive judicial review application can be filed, if;
(a)the applicant makes an application for extension of time in writing detailing why the extension should be granted; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension.
In the present case, the applicant filed her Originating Application on 29 September 2020 seeking an extension of time and provided therein the following “grounds” for why she believes an extension should be granted:
1.I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME
2.I ALSO CAN NOT PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT, SO TO MAKE SURE I IN LAWFULL I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS
Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
While the factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning of the High Court Tu’uta Katoa[1] in relation to a substantively similar provision in s 477A(2) of the Act, the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether there has been a reasonable and adequate explanation for the delay (explanation);
(c)whether there is any prejudice to the Minister (prejudice); and
(d)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (merits of substantive application).
[1] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 (“Katoa”) at [12]-[13].
When considering the merits of the proposed substantive application as a factor in assessing whether to grant an extension of time, the Court will do so at a “reasonably impressionistic level”.[2] Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[3]
[2] MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 (“MZABP”).
[3] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (“MZAIB”); Katoa at [54].
In Katoa, in relation to s 477A(2) of the Act, the High Court considered that the provision entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighted and assessed, including by reference to the merits of the proposed application. It will not constitute jurisdictional error to undertake more than an impressionistic assessment of the merits, leaving the discretion to exercise this power “deliberately broad”[4].
[4] Tu’uta Katoa at [39], [46]-[61].
To assist the applicant who, as noted, was unrepresented at the hearing on 3 May 2023, the Court explained to her that the possible categories of jurisdictional error for migration decisions of this sort, most commonly include, but are not limited to, the following categories:
(a)where the decision-maker ignores relevant material;[5]
(b)where the decision-maker relies on irrelevant material;[6]
(c)where the decision-maker fails to follow mandatory procedures;[7]
(d)where the decision-maker shows actual or apprehended bias;[8] and
(e)where the decision is illogical, irrational or unreasonable.[9]
[5] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[6] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[7] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].
[8] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].
[9] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that it is not the role of this Court to grant her the visa she seeks but rather to determine whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at.[10]
[10] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
SHOULD AN EXTENSION OF TIME BE GRANTED?
The Court confirmed with the applicant that she had the Court Book and the written Outline of Submissions of the first respondent which had been served on her on 14 February 2023 and 13 April 2023, respectively. The matter was stood down for a period of time to allow the Malay interpreter to translate for the applicant the written submissions of the first respondent. When the matter resumed, the applicant was asked if there was anything further she wished to say in respect of her application for an extension of time. The applicant’s responses, where relevant, will be included in my consideration of the factors below. The Court was satisfied that the applicant fully understood the proceedings and was able to properly participate in and follow the proceedings.
Length of delay
The Court notes that an extension of time is not granted as a right.[11] Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule.[12]
[11] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.
[12] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delays in this matter are 789 days in relation to the Non-Appearance Decision and 774 days in relation to the Confirmation Decision.
The delay in this case is significant and weighs against the granting of an extension of time.
Prejudice
It was conceded by the first respondent’s solicitor in written submissions filed in this Court on 13 April 2023 that the first respondent suffers no substantive prejudice if the extension was granted.
This weighs in favour of granting the extension of time.
Explanation for delay
The longer the delay in question, the more satisfactory the explanation for that delay needs to be.[13]
[13] Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
The Affidavit filed by the applicant in support of her judicial review application does not provide any explanation for the delay in commencing the proceedings in this Court. In that Affidavit, the applicant annexes the Confirmation Decision made by the Tribunal dated 13 July 2018. It is in the Originating Application where the applicant provides some detail as to the delay. In her application, the applicant states she “did not have enough money” to initiate the appeal process and that, because she could not afford legal advice, she sought help from a “union of workers” to assist her in lodging an appeal.
Before me, when asked on two occasions whether she had anything more to say about the delay, the applicant said she had nothing further to say.
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicant in this matter did not do that. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of her. As was recently discussed by Collier J in Englezos:[14]
As a general position, I note that an inability to obtain legal advice does not, in itself, form an adequate explanation for delay. Whilst the Court may have sympathy for a litigant in person, a failure to abide by any stipulated timeframe in the filing of an appeal by virtue of a professed ignorance of the relevant rules is not an adequate reason for delay: BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. Although a person wishing to bring an action or appeal is entitled to seek assistance from legal practitioners, it is ultimately the proposed applicant’s case and responsibility to ensure compliance with the relevant requirements; see for example SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]…
Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].
(Emphasis added)
[14] Englezos v Secretary, Department of Social Services [2023] FCA 31.
The Court does not consider that the applicant has provided a satisfactory explanation for the delay.
This weighs against granting an extension of time.
Merit
The most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court refers to the High Court’s decision in Katoa as follows:
17.… it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
(Citations omitted)
The Originating Application filed by the applicant on 29 September 2020 includes the following grounds of review:
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE
2.THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVANT IN MY CASE.
5.ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.
(As per original)
The first respondent submits that none of the applicant’s grounds of review identify jurisdictional error in the Tribunal’s decisions.
With respect to the applicant’s grounds 1, 3 and 4, the first respondent submits that they are:
…unparticularised, are in the same templated grounds used by other applicants in the Malaysian protection visa cohort, and do not relate to the bases for the Tribunal decisions, namely that [the Tribunal] dismissed the review application when the applicant did not appear at the hearing, and was required to confirm its dismissal decision when the applicant did not apply for reinstatement.
Similarly, the first respondent submits that, in the absence of particulars, ground 2, which alleges that the Tribunal “deprived” the applicant of procedural fairness, does not establish jurisdictional error. In support, the first respondent also referred to the Tribunal’s conduct in validly inviting the applicant to attend a hearing before it, pursuant to s 425 of the Act, as well as notifying the applicant of its decision as required by s 426B of the Act.
As to the applicant’s ground 5, the respondent submits that such a ground bears no relevance in the current proceedings given it does not apply to the Tribunal’s decision.
I accept the first respondent’s submissions that the applicant’s application contains no particularisation of her grounds of judicial review. Although orders were made for the applicant to file and serve any amended application and any affidavit containing additional evidence to be relied upon, she did not do so. Orders were also made for the applicant to file and serve written submissions, however none were filed.
Despite this, it is important, in its duty to assist self-represented litigants, that the Court ensure that the applicant’s judicial review application is substantially considered by this Court. In the circumstances, the Court will do its best to consider whether on an impressionistic level any arguable case of jurisdictional error arises in the Tribunal’s decisions.
It is prudent to first set out the Tribunal’s decisions.
The Tribunal’s Decisions
The Non-Appearance Decision
The Non-Appearance Decision dated 28 June 2018 provides:
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 28 June 2018 at 10:00am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent two SMS reminders to the applicant’s nominated telephone number about the hearing. One reminder was sent five business days, and the other reminder was sent one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. When the applicant did not appear at the scheduled time and place, a call to the applicant was placed on their nominated telephone number at that time without success.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision dated 13 July 2018 provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 28 June 2018 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5.The Tribunal confirms the decision to dismiss the application.
Ground one - whether the Tribunal failed to consider vital integers of the applicant’s case
By proposed ground one, the applicant makes a complaint that the Tribunal failed to consider “many vital integer” of her case. As noted earlier, the applicant does not, however, identify with sufficient particularity what it is the Tribunal failed to consider.
In any event, it is not the case that the Tribunal was at all required to consider integers and evidence relating to the applicant’s claims, given the applicant had failed to attend the scheduled Tribunal hearing, and it was thereby open to the Tribunal - pursuant to s 426A(1A)(b) of the Act - to dismiss the applicant’s review application “without any further consideration of the application or information” before it. I note here that I do not consider that the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance, having particular regard to the fact that:
(a)the hearing invitation was sent to the applicant via email sent to her nominated email address and there was no evidence before the Tribunal to suggest that the applicant had not received that invitation (for example, there was no email failure notice received);
(b)no further material had been provided to the Tribunal by the applicant in support of her review application;
(c)a SMS reminder was sent to the applicant’s nominated mobile number on two occasions prior to the scheduled hearing: 21 and 27 June 2018; and
(d)the applicant did not appear at the Tribunal hearing at the scheduled time of 10.00 am on 28 June 2018, including failing to answer a call made by the Tribunal member to her nominated mobile number on the day of the hearing.
Accordingly, no jurisdictional error arises in this regard.
Ground two - whether the Tribunal denied the applicant procedural fairness
The applicant asserts by her second proposed ground that the Tribunal denied her procedural fairness.
Division 4 of Part 7 of the Act comprises an exhaustive statement of the requirements of the natural justice hearing rule that the Tribunal must comply with in relation to the matters that they deal with.[15]
[15] s 422B(1) of the Act.
Of those various provisions prescribing the Tribunal’s procedural fairness obligations, the two most relevant in the present case are ss 425 and 426B, in circumstances where the applicant failed to appear at the Tribunal hearing on 28 June 2018 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426A(1A)(b) of the Act.
The obligation to properly invite the applicant to a Tribunal hearing - s 425
Pursuant to s 425 of the Act, the Tribunal is required to invite the applicant to attend a hearing before it. That section provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The necessary requirements for a Notice of invitation to appear is set out in s 425A of the Act, which relevantly provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
On 2 March 2018, an email was sent from the Tribunal to the applicant’s email address provided by the applicant in her review application. Attached to that email was an invitation from the Tribunal to the applicant to attend a hearing at 10.00am (WA time) on 3 May 2018, at a specified address which was the Administrative Appeals Tribunal, Perth.
On 26 April 2018, a further letter was sent to the applicant’s nominated email address, notifying her that the hearing date had changed. That letter specified that the hearing date and time was re-scheduled to 10.00am (WA time) on 28 June 2018.
Notably, in both letters sent from the Tribunal notifying the applicant of the hearing, the following paragraphs are included:
If you are not able to attend the hearing, you need to advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
A leaflet containing information about hearings, dismissals and the rights of applicants, was also attached to both the Tribunal’s emails to the applicant of 2 March and 26 April 2018.
Having regard to the above matters, I am satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. In particular, the invitation to attend the re-scheduled hearing:
(a)was addressed to the applicant;
(b)clearly indicated the date, time and means by which the applicant could attend the Tribunal hearing;
(c)was sent to the applicant’s email address provided by the applicant in her review application, noting that the email notification is a method approved by s 441A(5)(b) of the Act;
(d)was provided to the applicant 63 days prior to the new scheduled hearing date, being a time-frame exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth); and
(e)contained information describing the effect of s 426A of the Act and the particular consequences of a failure to attend the hearing.
It should be further noted that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 26 April 2018), regardless of whether the document was actually received.[16]
[16] SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271 at [36].
As was also explained in BHG22 (citing Sun[17] and Mohammed[18]), where an invitation to attend a hearing has been sent and complies with the requirements set out in s 425A of the Act, there is no obligation on the Tribunal to consider other ways in which an applicant can be notified of the scheduled hearing. This is further reinforced by amendments to the wording of s 425 of the Act, which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear.
[17] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[18]Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
I am satisfied that the applicant in this matter was properly invited to attend the Tribunal hearing.
No arguable case of error arises in this regard.
The obligation to notify the applicant of the Non-Appearance Decision - s 426B
If the Tribunal makes a decision to dismiss an applicant’s review application by reason of that applicant’s failure to attend the scheduled hearing, in accordance with s 426B(2) of the Act, it is procedurally fair that the Tribunal make a written statement that sets out the decision[19] and the reasons for that decision.[20]
[19] s 426B(2)(a) of the Act.
[20] s 426B(2)(b) of the Act.
Sections 426B(5) and 426B(6) of the Act also obligate the Tribunal to notify the applicant of the non-appearance decision in a specified way. Relevantly:
(5)The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
Here, it cannot be reasonably argued that the Tribunal did not do as it was required to under ss 426B(2), (5) and (6) of the Act.
The Tribunal prepared a written statement of its Non-Appearance Decision dated 28 June 2018 which clearly indicated both its decision to dismiss the applicant’s review proceedings and the reasons for arriving at such decision. A copy of the Decision Record was sent to the applicant on the same day as the decision being made, and thus the applicant was notified of the dismissal well within the required 14-day period.
As the Decision Record was sent via email to the applicant’s nominated email address, the Tribunal notified the applicant of its Non-Appearance Decision using a method specified in s 441A of the Act. It can be seen from correspondence sent from the Tribunal to the applicant on 28 June 2018 that included in that email notification was a statement informing the applicant of the option to reinstate her review application. Accompanying the Tribunal’s email was an information sheet containing information about “dismissal of applications” and the necessary steps to take to have an application reinstated.
In complying with the requirements under s 426B of the Act, I am satisfied the Tribunal afforded the applicant procedural fairness.
Accordingly, no arguable case of jurisdictional error arises in relation to the Tribunal affording the applicant procedural fairness.
Ground three - whether the Tribunal relied on incorrect information and used facts from some other case in its decision
By ground three, the applicant contends that the Tribunal relied on incorrect information and decided the applicant’s case using facts from “some other case”.
This ground simply cannot succeed in circumstances where the Tribunal made clear in its Non-Appearance decision that it did not conduct a review of the delegate’s decision due to the applicant’s failure to attend the scheduled hearing. That is, the Tribunal did not proceed to engage in any claims advanced by the applicant as it “decided to dismiss the application without further consideration of that application or the information” before it.
This ground establishes no arguable case of jurisdictional error.
Ground four - whether the Tribunal failed to ask the applicant questions about types of harm relevant to her case
The applicant submits in ground four that the Tribunal failed to ask her questions about “the types of harm relevant in my case”.
For similar reasons given above, this ground does not raise any arguable case of jurisdictional error given no review was conducted by the Tribunal by virtue of the review application being dismissed for the applicant’s non-appearance.
It is further noted that the applicant had lost the opportunity to be asked any questions by the Tribunal upon her failure to appear at the scheduled Tribunal hearing.
This ground establishes no arguable case of jurisdictional error.
Proposed ground five - reference to the Administrative Appeals Tribunal Act 1975
In this proposed ground, the applicant simply refers to s 44 of the Administrative Appeals Tribunal Act 1975 and states that in accordance with that provision she is authorised to appear in this Court.
It is clear that no reference is made to any finding made or conduct engaged in by the Tribunal. As such, this ground does not constitute a ground of judicial review that I can consider.
Whether the Tribunal erred by confirming the decision to dismiss the application
So far as the Tribunal’s Confirmation Decision is concerned, the Court notes that the applicant was notified (by email) of the Non-Appearance Decision on 13 July 2018.
The Court notes that, when the applicant was advised that her application had been dismissed, she was also advised that she could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 27 July 2018). Relevantly, in the information sheet attached to the letter to the applicant included the following:
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
The applicant did not seek reinstatement or make any contact with the Tribunal prior to the Confirmation Decision being made. Section 426A(1E) of the Act provides:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
In circumstances where no application for reinstatement was made by the applicant, the Tribunal was legislatively required to confirm the decision to dismiss the applicant’s application.
The Tribunal did so and provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, on 13 July 2018.
Accordingly, no case of jurisdictional error can be reasonably argued in relation to the Tribunal’s Confirmation Decision.
Allegation of fraud
Although not pleaded as a separate ground within her Originating Application, the applicant also relies on a claim of ‘trickery’ or ‘scamming’ in support of her judicial review application. Whilst not expressed or pleaded as ‘fraud’, I propose to consider the claim made by the applicant through the lens of a claim of fraud.
This ground arose at the hearing before me on 3 May 2023 when the applicant was given an opportunity to elaborate on the substantive “grounds of review” identified in her judicial review application.
The applicant told the Court that she had been “tricked” by an agent who assisted her with her visa application. She told the Court, in summary, words to the following effect:
·That she paid money to an agent who organised everything for her, including preparing the judicial review application;
·That she did not know the nature of the grounds of the application to the Tribunal put forward by the agent;
·That although she received notice about the Tribunal hearing and mentioned it to the agent, the agent told her to not worry about it and that he would look after everything; and
·That some two years later when she learned that her visa expired she tried to contact the agent but could not get in touch with him.
When asked whether she had made any reports to police concerning her suspicions about her agent, the applicant replied she did not and that, like her, many others had been tricked. To this, the solicitor for the first respondent submitted that nothing the applicant raised relating to the agent could identify jurisdictional error in the Tribunal’s decision, noting particularly that the applicant had nominated herself as the relevant contact on the review application and was notified appropriately of the hearing but did not attend that hearing which enlivened the Tribunal’s discretion to dismiss her application.
In SZRUR vMinister for Immigration and Border Protection[21]the Full Court held that procedural fairness required a visa applicant who alleged fraud to be given the opportunity of giving sworn evidence as to the fraud.
[21] SZRUR vMinister for Immigration and Border Protection[2013] FCAFC 146; (2013) 216 FCR 445.
The applicant was a litigant-in-person and mindful of the additional considerations that apply to ensure a fair hearing and provide due assistance to a litigant-in-person,[22] following the hearing on 3 May 2023, I gave each party the opportunity to file any further affidavit evidence and supplementary written submissions in relation to the applicant’s claim of third-party fraud.
[22] BKT17vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [21] – [25]; LamontvMalishus Limited (No 2) [2022] FCA 237 at [79] – [83]) Hamod v New South Wales [2011] NSWCA 375 at [309]-[316].
The applicant did not file an affidavit but sent an email to my chambers on 23 May 2023 that was treated by the Court as her additional evidence and submissions, as requested by her. That email read:
Dear Judge Goodchild,
As per my last week’s hearing, these are statements from me.
1. Last Wednesday, dated May 3rd, 2023, I received an email from the Minister for Immigration regarding a hearing to be conducted about visa.
2. In the last hearing, I mentioned that my visa application was scammed by the agent.
3. Last Monday dated May 8th, 2023, I received another email to provide further evidence and submission to the Minister for Immigration.
4. In the last 5 years, I met the agent and there was no paperwork and only verbally. It's quite difficult for me to provide you with evidence.
•On February 10th, 2017, I met a chinese guy saying he was an Agent Migration, introduced himself as 'Uncle Mark', at McDonald, Wanneroo at evening time.
•I knew him from my friends. They told him that he could apply for a visa for me as I had no knowledge of anything about visa applications.
•As long as I know him, he was the one who applied for my visa application and advised me for the next step.
•On April 26th, 2018, I received an email from the Administrative Appeals Tribunal regarding my visa hearing date and I informed the agent about the said email.
•I didn't attend the hearing in order to be told no to attend. And the agent will handle the case but it wasn't true.
•I was feeling depressed about his lie.
5. I would appreciate it if Judge could consider my case.
Regards,
[Name of applicant]
(As per original)
The first respondent relied upon supplementary written submissions filed on 6 June 2023 and a list of authorities filed 8 August 2023. In those submissions, the first respondent put forward arguments in respect of fraud which “invalidates a visa application” and fraud which “vitiates a Tribunal decision”. Ultimately, the first respondent submitted that neither the applicant’s visa application nor the Tribunal’s decision are affected by fraud.
At the further day of hearing before me on 9 August 2023, the applicant maintained her claim that she was tricked or scammed by an agent named “Mark”. When cross-examined by counsel for the first respondent about what exactly the agent did to trick or scam her, the applicant responded (as translated):[23]
So at that time, I have a friend who has lived here for a long time, and this friend introduced me to this Mark person. And this friend introduced me to him so that I could get work and visa. Then I was on a holiday visa for three months, and after that, that holiday visa expired, and I paid Mark $400 to go and get a new visa done. So after that, I work for Uncle Mark and I received wages – I was paid cash, not transfer. A few months later, I receive an email, something like – like a hearing. Then I told him about it because when I first arrive here, I didn’t know anything about visas. So I told him about it, and he said, “This is nothing. Don’t worry about it. I will look after it”. So at that time, I didn’t know anything about visas, and at that time, I didn’t have many friends, and it’s also partly – it’s also partly my fault because I didn’t ask people about that visa. Then after that, I was very happy – it was a tribunal. I – I got my work visa. I was very happy. Then a few years later, well I told Mark about it, and Mark said, “Don’t worry. I will look after it”, and all of a sudden when I check my visa account, it was – I didn’t have a visa any more. So after that, I tried to look for Uncle Mark, but he wasn’t around at the time, and I asked around, and I was told that he has moved elsewhere. And I believe Uncle Mark is very famous when it comes to immigration matters, and Immigration has been looking for him. Yes, Immigration – it is because Immigration knows that he’s an unregistered migration agent.
…
…he tricked me because he said he was going to look after all that tribunal matters.
[23] Transcript of hearing on 9 August 2023, line 44 at pg 6 to line 22 at pg 7.
I then asked various questions of the applicant with reference to documents relevant to her visa application and the Tribunal application, as contained in the Court Book. The following matters were confirmed by the applicant in response:[24]
[24] Transcript of hearing on 9 August 2023, pg 7 to 11.
·It is her signature that appears at various sections of the protection visa application;
·The applicant had signed the protection visa application;
·“Uncle Mark”, the agent, had helped her fill out the visa application;
·One of the emails nominated on the visa application was the applicant’s personal email address;
·The applicant agreed for the emails to go the nominated personal email address;
·The applicant understood that by nominating her email address, all documents would come to her;
·The applicant remembers lodging a review application before the Tribunal;
·The applicant remembers receiving a letter from the Tribunal that acknowledged that her application had been lodged;
·The applicant remembers receiving an invitation from the Tribunal to attend a hearing on 3 May 2018 at 10.00am;
·The applicant remembers the Tribunal hearing being rescheduled to 28 June 2018 and receiving a notification letter regarding these changes;
·The applicant remembers the ‘Response to the hearing invitation’ form and says she was assisted by someone to complete it;
·It is her signature on the ‘Response to the hearing invitation’ form;
·The applicant remembers wanting to attend the hearing and telling “Uncle Mark” who told her he will look after it; and
·The applicant received both the Tribunal’s notification of the Non-Appearance Decision and Confirmation Decision at her email.
Counsel for the first respondent resumed her cross-examination of the applicant. In particular, counsel put to the applicant inconsistencies with the date upon which she confirmed she had signed the application with the help of the agent (24 October 2016), and the date upon which she submitted in her email to the Court that she had met the agent (February 2017). The applicant explained that she was not sure about the dates since the application had been made quite a long time ago and insisted that it was just an estimation.
Counsel for the first respondent also challenged the applicant’s evidence that she only learned about the Tribunal decision when she accessed an online visa system, some two years after the decision was made. The first respondent’s counsel noted evidence from a Departmental employee that the applicant’s online visa system account had been accessed “at least 30 times in 2018”. The applicant agreed that she herself was checking her account, and conceded, when pressed, that as at 11 August 2018 the online system showed that she was unlawfully in Australia and so it was incorrect for her to tell the Court that she had only learned about the Tribunal decision when she checked the online system about two years after the decision.
At the completion of the first respondent’s cross-examination of the applicant, I asked the applicant if there was anything else she wished to tell the Court about the circumstances of her dealings with the agent or with respect to explaining her failure to attend the Tribunal hearing, to which she replied:[25]
…to be honest, I don’t have anything to say anymore, but I – all I want to say is I don’t have, and I’ve already tried to get good evidence, like strong evidence…
…
So to be honest with you, I – there’s nothing much for me to say, I don’t – in fact, I don’t have anything to say, but all I want to say is I cannot give you strong or – evidence about this, about Mark. Well, I have tried my very best, but I haven’t got any strong evidence to show you or give you.
Is there fraud which invalidates the applicant’s visa application and/or fraud which vitiates the Tribunal’s decision?
[25] Transcript of hearing on 9 August 2023, line 40 at pg 13 to line 6 at pg 14.
The first respondent, in oral submissions, contended that it appeared from the applicant’s oral evidence given at the hearing on 9 August 2023 that the applicant claimed fraud on two bases: that her visa application was invalidated by fraud, and that there was also fraud on the Tribunal with her failure to appear. It was not entirely clear to me that the applicant was claiming fraud on her visa application. She was certainly claiming to be “tricked” or “scammed” by a person referred to as Mark leading her to not appear at the Tribunal on 28 June 2018. In any event, I propose to consider both bases on the material the applicant made available to the Court and her oral evidence.
Assessing this ground on an impressionistic level, I am not satisfied that either type of fraud is made out in the present case such that jurisdictional error arises.
An allegation of fraud is a serious matter. It is necessary to identify the extent of any fraud in the particular context of the case. The applicant bears the onus of proof to establish invalidity of her visa application,[26] and that the onus of proving fraud is a heavy burden.[27] An applicant cannot prove fraud by “inexact proofs, indefinite testimony, or indirect references”.[28] The person ‘Mark’ took no part in the proceedings. Indeed, the applicant gave evidence that she was unable to locate him.
[26] Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at [78].
[27] SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [51].
[28] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
The principles applicable to the first type of determination (the visa application) were outlined by the Full Court of the Federal Court in Kaur v Minister for Immigration and Border Protection:[29]
[29] Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464 at [56]-[57].
56. The principles applicable to the determination of whether fraudulent conduct vitiates a visa application are helpfully set out in the Minister’s written submissions at [6]-[9], and were not disputed by the appellants. They arise from the High Court’s decision in SZFDE, and four decisions of the Full Court of this Court, and there is no challenge to the correctness of those authorities:
First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves ... room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application” (Singh at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (Singh at [52]).
Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Marharjan at [53], citing Gill at [50]).
Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Marharjan at [35], [44], [122]).
Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud not ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.
(Original emphasis and footnotes omitted.)57. To this summary should be added the following propositions articulated by the High Court in SZFDE:
(a) There are important differences between fraud in public and private law, in particular the need in the context of public law for a fraud to have an effect on the processes of the exercise of public power in order for it to vitiate those processes, and be capable of “unravelling” decisions or conduct: see SZFDE at [14], [24]-[27], [29], [42] (by reference to the reasons of French J (in dissent, and as his Honour then was) in the Full Court: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365), [47]-[49]. One way of expressing this is to ask whether the repository of the public power was “disabled” from performing its statutory functions by reason of the fraud (at [51]).
(b) Often the only effective remedy for victims of fraud in public law is for the tainted decision-making process to be set aside and a “fresh untainted hearing conducted” (at [22]).
(c) Circumstances where an applicant for judicial review has “colluded” in the fraud are excluded from these principles (at [28]).
(d) A finding of fraud should specify “what was said that was fraudulent, how it was fraudulent, and how it was acted upon” (in the words of French J in SZFDE in the Full Court, quoted with approval by the High Court at [41])The applicant’s evidence, such as it was, concerning the visa application can be summarised as follows: The applicant saw an advertisement on Facebook offering good wages working in Australia. She came to Australia on a holiday visa. She contacted the agent, whom she referred to as Uncle Mark/Mark and she was told he will organise her visa which was a working holiday visa. She paid money to this agent to organise the visa. She worked for Uncle Mark for cash wages. She did not know anything about the visa. She signed the visa. She nominated her personal email address for the receipt of emails concerning the visa.
The evidence the applicant provides is insufficient to establish fraud in the preparation of her visa application. There is insufficient identification of what role Mark played in his purported assistance provided to the applicant with her visa application. The applicant gave no evidence that the visa application contained information that was false or misleading. The applicant agreed her signature appeared on the document and she agreed that her email address be used for contact for the application. The respondent refers to the oral evidence given by the applicant where she is clearly confused about the dates when she first met with Mark, despite nominating a specific date in her written statement.
Nothing in the evidence could support a finding that Mark engaged in any fraudulent conduct which caused the relevant visa application to be lodged. The applicant gave evidence that she worked for Mark for a period of time. The applicant does not identify with any particularity what was said that was fraudulent (or trickery or scam), or how she acted upon what was said to her in respect of the visa application.
As to the second type of fraud raised, being that there was fraud on the Tribunal such that its decision is vitiated, SZFDE[30] makes clear at [51] that jurisdictional error is established in this regard if it is proven that the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect the conduct of the review”. Such imperative statutory functions include those relating to the Tribunal’s procedural fairness obligations under the Act. Where such function is vitiated, the Tribunal is found to have not made a decision at all: SZFDE at [52].
[30] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (‘SZFDE’).
In SZFDE at [45] the High Court drew inferences about the conduct and motivation of the agent in question in order to uphold the finding of fraud. In that case, the agent falsely held himself out to the applicants as a registered agent and a solicitor when he was neither. He took their money for a service that he was prevented by law from performing: see SZFDE at [40] and [42]. He gave deliberately false advice which was designed to stop them from attending the Tribunal hearing (at [42]). If his conduct had been discovered he risked imprisonment for 10 years (at [46]).
However, in this case before me, even if the applicant’s evidence were to be accepted in every respect, the factual position is quite different.
The applicant’s evidence concerning the circumstances of the notification of the Tribunal hearing and her failure to attend that hearing can be summarised as follows: The applicant remembers lodging a review application with the Tribunal, receiving a letter from the Tribunal acknowledging that her application had been lodged. She remembers receiving the invitation to attend the hearing at 10.00am on 3 May 2018. She remembers the hearing being rescheduled to 28 June 2018. She remembers preparing the ‘Response to the hearing invitation’ with the assistance of someone and signing that document. She remembers wanting to attend the hearing and Mark telling her that he will look after it.
The applicant understood the need for a valid visa. The applicant received both the Tribunal’s notification of the Non-Appearance Decision and Confirmation Decision to her email.
The applicant gives no evidence as to any “dishonest” motive on behalf of Mark in him informing the applicant that he will “look after” the attendance at the Tribunal hearing. The impression is that the applicant simply left everything up to Mark. There is no evidence as to whether Mark was a registered migration agent or solicitor or that the applicant made enquiries of Mark as to his ability to take care of her migration matters. I agree with the submissions of the first respondent that if Mark existed (and the first respondent urges that I cannot be satisfied of that fact), the inference is simply that Mark was negligent or incompetent. Further, I agree with the submissions of the first respondent that the applicant makes no claim that Mark told her not to seek to reinstate her review application.
In Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443 at [30]-[33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal’s statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal.
Conclusion regarding the merits of the substantive application
From my impressionistic assessment of the applicant’s proposed grounds of review, I am not satisfied that any ground argued by the applicant establishes an arguable case of jurisdictional error.
I reiterate here that the applicant had been properly invited to attend the Tribunal hearing, and she conceded in oral submissions that she had received the Tribunal’s hearing invitation but did not take any action to attend due to circumstances relating to the person she referred to as Uncle Mark or Mark. Because of her failure to attend, the Tribunal had an evident and intelligible justification to dismiss her application pursuant to s 426A(1A)(b) of the Act and exercised its discretion in that regard reasonably.[31]
[31] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [97]; EBS17 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22].
Following its Non-Appearance Decision, the Tribunal not only complied with its obligation to notify the applicant of the Non-Appearance Decision (as required by s 426B(5) of the Act), but sent the applicant an email attaching a letter which contained information about how the applicant could have her application reinstated (as required by s 426B(6) of the Act).
The applicant did not seek reinstatement and the Tribunal dismissed the application for review as required to under s 426A(1E).
In all of the foregoing circumstances, noting also that there no sufficient evidence to establish fraud as argued by the applicant, I find that the substantive application is without merit, and has no prospects of success.
CONCLUSION
The overarching consideration for the Court is whether it is in the interests of the administration of justice to grant the extension of time in the circumstances of the case.
Here, the significant delay in filing, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error on the part of the Tribunal, are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, refused and I make an order that the applicant pay the first respondent’s scheduled costs.
I certify that the preceding one-hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.
Associate:
Dated: 13 October 2023
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