Jiao v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1232

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jiao v Minister for Immigration and Citizenship [2025] FedCFamC2G 1232   

File number(s):	MLG 1946 of 2023
Judgment of:	JUDGE VASTA
Date of judgment:	9 June 2025
Catchwords:	MIGRATION – review of administrative appeals decision – application for extension of time for filing – application for extension of time for filing refused – costs granted.
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	31
Date of last submission/s:	9 June 2025
Date of hearing:	9 June 2025
Counsel for the Applicants:	The Applicants appearing on their own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

MLG 1946 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CANGWEN JIAO

First Applicant

GULIAN WANG

Second Applicant

ZHIYANG JIAO

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	9 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration and Citizenship.”

2.The application for extension of time filed on 31 October 2023 is refused.

3.The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $4,189.38.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex tempore)

JUDGE VASTA

1. On 8 September 2017, the Administrative Appeals Tribunal (“the AAT/Tribunal”) found that it did not have jurisdiction to hear a review that had been filed by the first and second applicants. The Tribunal also affirmed the decision of the Department to refuse the third applicant a visa.  On 31 October 2023, the applicants asked this Court to review that decision. 

2. As can be seen from those dates, the applicant needed to have her application filed by 13 October 2017.  She was over six years out of time.  This means that the hearing today has been an application for extension of time.  But, as I told the litigants, if I found that there was to be an extension of time, that I would also be dealing with the substantive application. 

3. The background to this matter is really contained in the affidavit of the applicant that was filed on 31 October 2023. 

4. In 2015, the first applicant, Cangwen Jiao, the second applicant, Gulian Wang, and the third applicant, Ziyang Jiao, decided they wished to live in Australia permanently.  They approached a company called Australia Recruiting Proprietary Limited, which was represented by Shanghai Dong Lao Immigration Service in China.  The applicants say that that company claimed it could get permanent resident visas for clients of theirs.  The second applicant seemed to be the person who was involved with the company in the application process.  The applicant entrusted the company to get those visas for herself and her husband and daughter.

5. On 31 January 2017, a subclass 185 visa was applied for by the husband with the wife and daughter as members of his family unit.  The basis of the visa was that the husband was going to be employed by a company in Australia who needed his skills to be employed.

6. A copy of this application is reproduced in the Court Book.  I went through this application with the second applicant during the course of today's hearing.  The second applicant agreed that everything in that application was correct, and it was information that was provided by herself, her husband and her daughter, except for one detail and that is the email address at which the department could contact the applicants.  The email address given was [email protected].  The second applicant and the rest of her family came to Australia in late January 2017. 

7. On 6 February 2017, the second applicant met with the immigration agent, a person called Yi Sun, in the office of Yi Sun.  The agent had said that the applications were before the department and that they would be permitted very soon.  On 1 March 2017, the applicant said that she emailed Yi Sun to ask whether she still represented the family with the visa applications and Yi Sun replied, “Yes”. 

8. On 14 July 2017, the delegate of the Minister refused the subclass 186 visa.  The letter sent with the decision detailed that the decision could be reviewed by the AAT.  The application needed to be given to the AAT within 21 calendar days, which meant it needed to be given to the AAT by 4 August 2017.  However, that notice also stated that you may only seek merits review of this decision if you are physically present in Australia at the time the application for merits review is made.

9. It also explained that because the applicants were on bridging visas, that they were only allowed to travel before 26 July 2017, but if they made a valid application for review, then the bridging visa would continue to remain in effect.  If a valid application for review was not made, then the bridging visa would cease 35 calendar days after the date of its decision, which was 18 August 2017. 

10. According to the affidavit of the applicant, at paragraph 9 she wrote, “In July 2017, I was told by an employee from Shanghai Dong Lao that the visa application was refused and that review applications had been filed”.

11. The applicant said that she went to Melbourne on 24 July 2017.  However, the review application was lodged with the Tribunal on 21 July 2017.  The Tribunal understood that the neither the first or the second applicant were in Australia on 21 July 2017.  The husband had come to Australia but departed on 11 February 2017.  He has not returned to Australia since then.

12. The second applicant left Australia on 3 May 2017, which was before the delegate made their decision, and returned on 25 July 2017.  The third applicant left Australia on 18 June 2017 and returned on 19 July 2017.  The Tribunal wrote to the applicants on 31 July 2017.  In this letter, the AAT told the applicants that their application to the AAT would only be valid if they were physically in Australia at the time that the review application was lodged. The letter also noted that neither the first or second applicants were in Australia on that date, so, therefore, the applications did not appear to be valid.  They were invited to comment on this information but had to do so by 14 August.

13. Interestingly, this correspondence was sent to the email that was on the visa application, that is, the email address [email protected]. 

14. On 2 August 2017, some two days later, the second applicant contacted the AAT. She said that the applicants had not authorised the lodgement of the review application.  She said that she believed that she was the victim of some form of scam and that she did not know about the letter and wanted to know who paid for the filing of the review application. 

15. The AAT asked her to make a written submission setting out her claims, so that they could provide an appropriate response and take necessary actions.  She was told that she needed to notify the Tribunal about her new email address, in writing, along with a copy of her photo ID.

16. The second applicant physically went to the AAT office the next day.  The Tribunal discussed with her concerns about lodgement, and she was adamant that she did not lodge the application.  The AAT encouraged her to update the email address if the email address was unknown to her, but she insisted that the Tribunal continue to communicate to that email address.

17. The AAT printed out the letter that they sent on 31 July and gave it to the applicant. When that printed material was given to the second applicant, she confessed that she had seen that document before.  The AAT explained, again, that the application did not seem to be valid because she was not in Australia at the time that the application was lodged. 

18. The AAT then discovered that the application was filed by a person by the name of Oliver Marsh, who used the [email protected] email address.

19. The AAT asked the applicant if she had ever been in contact with this person and she insisted that she had not.  The AAT again strongly encouraged the applicant to remove the address associated with that person, but she insisted that the Tribunal continue to communicate to that address.  The applicant continued to ask for details from the Tribunal as to who paid for the application, how it was paid, and what other information there was about the particular person, Oliver Marsh.

20. The Tribunal informed her that such information would not remedy the defect in the application regarding validity.  The Tribunal told the applicant that it appears that the application was invalid and it would be given to an AAT member, and that if that member agreed that it was invalid, the case would be finalised and that would be the end of it. 

21. As has been said, on 8 September, having heard nothing more from the applicant, the Tribunal concluded that neither the first or second applicant were in Australia on 21 July when the application was made and, therefore, the Tribunal had no jurisdiction to hear their applications. 

22. Because the third applicant was in Australia, the Tribunal still needed to decide her application. The Tribunal concluded that the third applicant had no claims of her own but was a member of the family unit of the first applicant.  Since his application was invalid and, therefore, the decision of the delegate stood, the third applicant had no valid claims of her own and so her application for review was also dismissed.

23. The second applicant has said that she did not know about the decision of the Tribunal.  However, she said that she had to take her daughter out of school in Victoria and return to China because the bridging visa would not be valid for too much longer.  The second applicant said, upon her return to China, she made a police complaint of fraud by the company. 

24. In looking at that history, it is difficult to see that there is an arguable case that the applicant was a victim of fraud.  It is also difficult to see how it is that the applicant could maintain that she had no connection to the email address of [email protected]. This is because it was two days after the AAT sent the email to the email address that the applicant contacted the AAT and started telling them that she and her husband had not lodged the application. 

25. One wonders why such a communication was made if there had been no knowledge that such a letter had been sent two days previously.  The admission that the applicant made that she had seen the correspondence that had been sent by email on 31 July 2017 when given a hard copy of it, is also very telling. Added to this is the insistence, on two separate occasions, that the AAT continue to use that email address to communicate with her even though she claimed that she did not know or have any connection to that email address, and when the AAT had offered to swap the email address for her own email address.

26. In deciding whether a Court should extend the time within which to file, the Court looks at three aspects.  Firstly, the Court looks at what prejudice, if any, is there to the respondent, in this case the Minister, if it were that the Court allowed the extension of time.  The second aspect is what is the reason for the late filing of the application, and the third aspect is whether there is an arguable case for the relief that is sought. 

27. The Minister has conceded that there would be insufficient prejudice for the application for extension to not be granted and, therefore, I do not have to consider this aspect any further. 

28. The second aspect is looking at the excuse, and the applicant has said to the Court that the AAT did not send her their decision.  I find this explanation difficult to accept because the applicant knew that the AAT member was going to consider whether the application was valid or not.  The applicant also asked the AAT to keep that other email address as the email with which to communicate on these matters.  For the applicant to come to this Court now and say the AAT knew her other address and should have sent the material there is nothing short of humbug.

29. I turn then to the third aspect where the applicant's two grounds can be looked at even in an impressionistic way.  The first ground is that the AAT should have found that the applicant did not lodge the application itself, and the second ground is that the AAT should have found that there was no valid visa application in the names of her family ever lodged.  The applicant must prove those matters and, on the history that has been given to the Court and recited by me, the clear inference is that the visa application that was lodged on 31 January 2017 was done on the instructions of the applicants.  The second inference is that the unsuccessful application for a visa was to be the subject of a review and on instructions the application for review was lodged.

30. The inference is that the applicants had paid for applications to be made so that they could have a successful application to live in Australia permanently.  Once that application was unsuccessful, the instructions necessarily would have been to file a review application immediately.  These facts lead me to the strong opinion that the excuse for filing this application six years out of time is unsatisfactory and, secondly, that there is no arguable case for the relief that is sought by the applicant.

31. I, therefore, refuse the application for an extension of time with costs fixed in the sum of $4189.38

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       1 August 2025