ADP19 v Minister for Immigration and Citizenship

1. For the reasons that follow at [39] to [72] of this judgment, I find the applicant has not demonstrated jurisdictional error and I dismiss the application.

1. On 25 April 2011, the applicant arrived in Australia on a Student (Temporary) (Class TU) (Subclass 571) visa (student visa) (Court Book (CB) 71). Prior to the student visa expiring, the applicant was issued a Bridging Visa A on 26 February 2013. On that same day, the applicant lodged a Student Further Stay-Onshore application, which was refused by the Department of Immigration and Citizenship (Department) on 2 April 2013.
2. The applicant lodged a review of the 2 April 2013 student visa refusal decision at the then Merit Review Tribunal, which was unsuccessful. The applicant then lodged a judicial review application with this Court on 28 October 2013 (SYG2641/2013), which was also unsuccessful. On 25 November 2014, the applicant appealed this Court's decision to the Full Federal Court of Australia and was unsuccessful (CB 72). The applicant was then issued a Bridging Visa B on 15 July 2014 which ceased operation on 27 March 2015 (CB 71).

1. On 26 March 2015, the day before the applicant's Bridging Visa B was due to cease, the applicant lodged the protection visa application, claiming fear from religious persecution in China as a Catholic (CB 1 to 37). The application attached a personal statement by the applicant (applicant's personal statement) (CB 38 and 39), which expanded on the applicant's claims for protection. The applicant's personal statement stated the following (as per original):

My name is [ADP19]. I was born on 2 November 1994 in Liushui Village Liushui Town, Fuzhou City, Fujian Province. My whole family was persecuted by Chinese government because we believed in Christ. So I escaped from China and arrived at Australia on 24 April 2011 with my student visa. I hereby submit my application for refugee protection and I earnestly hope that Australia government could consider my situation and grant me the protection.

All my family was followers of Catholics. Although I couldn't make time to study Bible systematically because of the heavy tasks from school and continuous pressure from exams, my parents often told me Bible stories whenever I was available, and I attended their gatherings too during vacations. I considered the Christ holy, always believed that the Lord would bless the entire human race. My parents were the mainstays of Catholics in our village. They often evangelized around and helped people who were in need. However, under the reign of the Communist Party, Freedom of Religious Belief was just a hollow phrase. The government restrictedly controlled the spread of religions, so brothers and sisters had to gather underground furtively. I attended the gathering since I was a little kid, and I couldn't understand why the government treated our religion like this. And my parents always asked me not to tell others we were believers of Jesus.

On 4 December 2009, I went to the gathering with my parents on the weekend. Around 12 o' clock, 6 policemen broke in and arrested all of us. They sentenced detentions of 15 days to my parents and 7 days to me, because I was a first offender. They also gave me educations every day in the prison. If they thought we did not confess sincerely, they beat us with spontoons. After we were released, my parents decided to send me overseas no matter what cost.

Many thanks to the God, I came to Australia successfully on 25 April 2011. I missed and worried about my parents a lot, but what I could do is to pray for them. Unfortunately, they were arrested again because of organizing the gathering on 18 August 2012, and were detained for 30 days. The police this time gave my parents a big punishment that they ceased the operation rights of their seafood store, which they had operated for many years. The living source of my family was then cut off, so they gradually couldn't support my life in Australia anymore.

What I state above is true and genuine. I hereby submit my application of refugee protection. I earnestly hope that Australia government could give me deep understanding and enough consideration, and grant me the visa of protection.

1. The applicant was assisted in preparing the protection visa application dated 20 March 2015 by Ms Jie Yu (Ms Yu), who at that time was a registered migration agent (CB 35). In response to question 21 on the protection visa application, which related to where "[a]ll written communications about this application should be sent to", the option "[m]igration agent" was ticked (CB 35). Ms Yu completed an "[a]dvice by a migration agent/exempt person of providing immigration assistance" Form 956 (CB 41 to 43), in which she confirmed she was providing the applicant with assistance in the application process for an on-shore protection visa application and had been authorised to receive written communication on behalf of the applicant in relation to the protection visa application. The Form 956 was signed and dated by Ms Yu and the applicant on 20 March 2015 (CB 43) and received at the Department's drop box on 26 March 2015 (CB 41).
2. By letter to Ms Yu dated 1 April 2015, the Department acknowledged the applicant's protection visa application was a valid application (CB 45 to 50). The Department's letter enclosed a request for information, which requested the applicant provide a certified copy of her passport and attend an in-person appointment at the Department's office to provide personal identifiers (CB 56). The applicant attended the appointment on 20 April 2015 (CB 84).

Failure to attend an interview with the delegate

1. By letter to Ms Yu dated 3 February 2016, the Department invited the applicant to attend an interview with a case officer scheduled for 15 February 2016 to discuss her visa application and protection claims (CB 58 to 61).
2. The applicant did not attend the interview before the delegate (CB 73).

1. On 15 February 2016, a delegate of the Minister refused to grant the applicant a protection visa, on the basis that the applicant's written material did not provide a sufficient basis to establish she was involved in the Catholic faith, or involved to the extent that there was a real chance she would suffer religious persecution or harm upon return to China (CB 71 to 81). The delegate's decision was determined on the written information provided by the applicant as she did not attend the interview before the delegate (CB 76).
2. The delegate was not satisfied that there was a real chance that on return to China the applicant would suffer persecution for reasons related to her claimed religion as a Catholic adherent and found that as the claimed fear of persecution was not well-founded, the applicant was not a refugee under s 5H(1) of the Act or a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act (CB 80).

1. On 8 March 2016, the applicant lodged an application for review of the delegate's decision with the Tribunal (CB 87 and 88). The application for review included the Griffith address as the applicant's residential address and Ms Yu as the applicant's representative and registered migration agent. By letter to Ms Yu dated 9 March 2016, the Tribunal acknowledged receipt of the applicant's application for review (CB 90 and 91).
2. By letter to Ms Yu dated 9 July 2018, the Tribunal stated that the applicant's file was being prepared for allocation to a Tribunal member and may be scheduled for hearing and invited the applicant to provide any additional evidence relevant to her application (CB 99 and 100).
3. By email to the Tribunal on 15 July 2018 (CB 102), Ms Yu acknowledged the Tribunal's 9 July 2018 letter and requested a letter for the applicant's Medicare enrolment from the Tribunal, which the Tribunal provided on 16 July 2018 (CB 105 and 106).

1. On 13 August 2018, the Tribunal wrote to Ms Yu and advised that the Tribunal had received advice from MARA that her migration agent registration lapsed on 19 June 2017 and that it required her to provide information about any arrangements that she may have made for the applicant (CB 108 and 109). The Tribunal stated that it was required to continue sending all correspondence to Ms Yu until advised of any new authorised recipient arrangement by the applicant, and that it would also send to the applicant copies of all correspondence sent to Ms Yu (CB 108). The letter was sent to the applicant's nominated email address, which was Ms Yu's email address (CB 110). The Tribunal noted in the said letter that it had informed the applicant about the fact that Ms Yu's registration was no longer current and advised the applicant to contact Ms Yu to discuss whether she could continue to assist the applicant.
2. On 16 July 2018, Mr Dylan Owen-Taylor from the Tribunal called Ms Yu regarding her lapsed migration status (CB 151). The case notes recorded that Ms Yu informed the Tribunal "she was waiting to get information from MARA but was still acting as the applicant's representative".
3. By letter dated 24 September 2018 sent by the Tribunal to Ms Yu and copied to the applicant at her Griffith address, the Tribunal stated that any further written submissions needed to be provided to it by 13 November 2018 (CB 117).

1. By letter dated 24 September 2018 sent by the Tribunal to Ms Yu, the Tribunal invited the applicant to attend a hearing before the Tribunal to give evidence and present arguments in person on 20 November 2018 (CB 118 and 119). The said letter was also sent to the applicant's residential Griffith address which had been recorded on the application to the Tribunal as the applicant's address (CB 87 and 88). The letter advised the applicant, inter alia, as follows:

If you are not able to attend the hearing you should 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.

1. By letter dated 28 September 2018 sent to Ms Yu and copied to the applicant's Griffith address (CB 127 and 128), the Tribunal wrote to Ms Yu enclosing a letter dated 28 September 2018 as to whether the applicant would prefer her upcoming hearing to be held as a video conference near Griffith, noting that the applicant had given her address on the application to the Tribunal as the Griffith address. In the letter to Ms Yu, the Tribunal specifically said the following:

The enclosed documents are given to you as the authorised recipient of the applicant. As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant.

By providing you with these documents, we are taken to have given the documents to the applicant. You should ensure that the applicant is informed of this letter as soon as possible.

Please note there appears to be some confusion about who is representing [ADP19]. It is not clear if Ms Yu, whose status as a migration agent has lapsed, is still associated with Auyangtong International. Please confirm the applicant's current representative/authorised recipient details, with the appropriate forms, as soon as possible.

(Emphasis in original)

1. Ms Yu responded to the Tribunal's letter dated 28 September 2018 by email dated 11 October 2018 stating that the applicant needed a letter for the purposes of renewing her Medicare (CB 129).

1. On 20 November 2018, the Tribunal dismissed the applicant's application for review under s 426A(1A)(b) of the Act as the applicant failed to appear at the Tribunal hearing (dismissal decision) (CB 140). The Tribunal was satisfied that the applicant received appropriate notice of the hearing details, by way of the hearing invitation sent by email pursuant to s 441A(5) of the Act and by post which had not been returned to sender ([2] of its reasons). The Tribunal also noted the applicant was sent SMS reminders about the hearing five business days and one business day before the scheduled hearing to the phone number provided to the Tribunal, although delivery failed on those reminders ([1] of its reasons, CB 151). Further, no satisfactory reason for the non-appearance of the applicant had been given ([2] of its reasons). In those circumstances, the Tribunal dismissed the application without further consideration of the application or the information before the Tribunal ([3] of its reasons).
2. By letter dated 21 November 2018 to Ms Yu and copied to the applicant's Griffith address, the Tribunal advised of its dismissal decision due to the applicant's non-appearance at the scheduled hearing (CB 138 and 139). The said letter stated that a reinstatement of the application could be sought in writing by 5 December 2018.

1. On 10 December 2018, the Tribunal confirmed its dismissal decision given the applicant did not apply for reinstatement of the application for review within the 14-day period (confirmation decision) (CB 146 and 147) ([4] and [5] of its reasons). The confirmation decision was provided on 11 December 2019 to Ms Yu and to the applicant at her Griffith address (CB 144 and 145).

1. The applicant filed an application for judicial review in this Court on 11 January 2019. At the hearing before me, the applicant sought leave to amend this application for judicial review as follows:
   1. AAT IS UNFAIR TO ME, FAILED TO CONSIDER MY REAL SITUATION

I missed the AAT hearing time because of the mistake of my previous agent. Even though Tribunal was aware that my immigration agent's license was invalid, tribunal did not actively contact me personally, this resulted in my missing my AAT hearing time.

1. AAT HAS DISCRIMINATION ON ME, FAILED TO CONSIDER

I can't survive with my kids if we leaving this country.

1. The applicant's visa application is invalid by reason of fraud by the applicant's former migration agent, Ms Yu, in setting out claims in the protection visa application (CB 1 to 37) and attached personal statement of the applicant (CB 38 and 39), without the applicant's knowledge or instructions.
2. The Tribunal's processes were stultified by reason of the fraud of the applicant's former migration agent, Ms Yu, in that she did not tell the applicant that there was a hearing listed before the Tribunal on 20 November 2018 (as noted in CB 118) and Ms Yu did not tell the applicant that after her case had been dismissed it could have been reinstated before the Tribunal.

1. Grounds 3 and 4 reflect the applicant's additional arguments she raised at the hearing before me. The Minister did not oppose leave being granted to the applicant to raise grounds 3 and 4. I granted leave for the applicant to amend her grounds for judicial review as set out in the preceding paragraph. Given the applicant is a litigant in person I dispensed with the requirement for the applicant to file and serve an amended application.

1. On 22 March 2024, the Minister applied for summary dismissal of the applicant's application for judicial review (summary dismissal application). On 26 July 2024, Judicial Registrar Cummings dismissed the Minister's summary dismissal application and made orders, inter alia, that the application for judicial review be listed for final hearing before a Judge.
2. On 22 August 2024, Judicial Registrar Cummings referred the applicant for pro bono legal assistance. Despite the pro bono referral being accepted initially, and the best efforts of the National Migration Team and my chambers to locate new pro bono legal assistance for the applicant after the initial representative withdrew, the pro bono referral was not accepted by any legal practitioner and the applicant appeared unrepresented in the proceedings before me.

1. The matter first came before me on 14 October 2025 for a full day hearing (10:15am to 3:47pm) (First Hearing). The applicant appeared before me as a litigant in person assisted by an interpreter in the English and Mandarin languages. Ms Nicole Maddocks of counsel (Ms Maddocks) appeared for the Minister. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application for judicial review, the applicant's affidavit accepted for filing on 11 January 2019 and the Minister's written submissions dated 8 October 2024 and 13 October 2025. I arranged for the documents to be interpreted to the applicant before the hearing commenced.
2. The evidence before the Court comprised of the following documents tendered by the Minister:

(a) Court Book, marked "Exhibit R1".

(b) Decision in Guo v Minister for Immigration & Anor [2014] FCCA 2745 of Cameron J, marked "Exhibit R2".

(c) Transcript of proceedings of the interlocutory hearing for summary dismissal before Judicial Registrar Cummings held on 23 July 2024, marked "Exhibit R3".

1. At the First Hearing, the applicant raised the new grounds 3 and 4 referred to at [25] of this judgment. Mindful of the Court's duty to unrepresented litigants, I explained to the applicant that she needed to provide to the Court evidence as to the circumstances surrounding the engagement of the migration agent, what the agent was told, what advice or documents the agent provided to the applicant and the involvement of the applicant in the process. I explained to the applicant that she could give such evidence by going into the witness box and that the Minister would then have an opportunity to cross-examine her. I also explained that the Minister may well seek time to investigate the matters raised by the applicant. The applicant said that she would provide evidence by going into the witness box and giving her evidence. The applicant did not finish giving her evidence on 14 October 2025 and the matter was set down for further hearing on 7 November 2025.
2. On 14 October 2025, the Minister sought leave to issue subpoenas to Ms Yu to produce documents and attend the further hearing, which leave was granted.

1. The matter came back before me on 7 November 2025 for a full day (10:15am to 4:22pm) (Second Hearing). The applicant appeared in person assisted by an interpreter in the English and Mandarin languages, and Ms Maddocks appeared for the Minister.
2. At the Second Hearing, the migration agent was interposed as a witness called by the Minister. The Minister asked Ms Yu a series of questions in the presence of the applicant, as she remained in court as a party to the proceedings. I gave the applicant an opportunity to ask Ms Yu questions, but the applicant declined (Tp62.14-29).
3. In relation to the subpoena to produce documents, on 5 November 2025, the Minister wrote to my chambers and confirmed that Ms Yu had advised that "[i]n regards to documents requested, I have nothing to provide. As in my memory we don't have each other's email address, and the phone I used to send texts has stopped working from 2022". Ms Yu's email was tendered by the Minister, marked "Exhibit R4". At the listing for the return of subpoena to produce documents before me on 7 November 2025, there was a nil return.

1. The matter came back before me on 3 December 2025 (10:40 am to 12:18pm). The applicant appeared in person assisted by an interpreter in the English and Mandarin languages, and Ms Maddocks appeared for the Minister.
2. The Minister relied on his further written submissions dated 21 November 2025, and the applicant relied on her further written submissions accepted for filing on 1 December 2025. The applicant and Ms Maddocks made oral submissions.
3. After the hearing, the applicant provided further written submissions to my chambers. I granted leave for the submissions to be accepted for filing. The further submissions were accepted for filing on 4 December 2025 and I have considered those further submissions.

1. By ground 1, the applicant contends that the Tribunal was unfair to her and failed to consider her real situation, being that the applicant missed the Tribunal hearing due to Ms Yu's alleged failure to inform the applicant of the Tribunal hearing. The applicant further submits that despite the Tribunal being aware that Ms Yu's migration agent registration "was invalid", the Tribunal did not contact the applicant personally, which resulted in her missing the Tribunal hearing.
2. At the hearings before me, the applicant elaborated on ground 1 and stated as follows:

First Hearing

(Tp14.42-46)

...So, the tribunal was aware in 2017 that Sister Yu didn't have a valid qualification as a migration agent. I didn't have any knowledge, but they still sent notifications to Sister Yu. I didn't have knowledge. I believe that was their mistake because they have knowledge. They're supposed to notify me of that information in a proper way.

Second Hearing

(Tp92.45-Tp93.6)

I didn't receive the tribunal's notification, and besides, Jie Yu mentioned she losted her qualification in 2017 - she lost her qualification in 2020, but at the tribunal, that already lapsed, I believe, in 2017.

...

(Tp93.4-24)

She no longer had a qualification by that time, but tribunal still sent a correspondence to her with knowledge that - that she no longer has qualification.

...

One more thing is: both the department and the tribunal were negligent in Jie Yu's - in Jie Yu's dishonest behaviour.

...

Because tribunal noticed her licence expired. They noticed that. There must be dishonest behaviour, otherwise the qualification won't expire.

...

I don't know how to put it. The tribunal continued to send correspondence to her even after her licence lapsed. According to what I heard from Registrar Cummings, it's not the first time this migration agent Jie Yu was summoned by the Court.

Third Hearing

(Tp36.29-47)

Okay. So I just checked. My hearing date is 20 November 2018. And her licence to become valid again, or renewed, that was in December. So, she didn't have a valid licence during the time when my hearing was supposed to happen. So AAT sent her the invitation, while she didn't have a valid licence. Okay. And then, although this Griffith address was cc'd into, but it wasn't my address at the time. Okay. So, that Griffith address shouldn't have even appeared on my application. So I wondered why this address was used. ...

1. The affidavit of Kerrie Pieri affirmed 20 November 2025 annexed a document titled "Copy from database late request application lodged 21 July 2017 Jie Yu" which was extracted from the Department's Migration Agents Regulatory System database and discloses that on 21 July 2017, Ms Yu made a late repeat application for registration as a migration agent and that on 5 December 2018, Ms Yu was registered as a migration agent for the period from 5 December 2018 to 4 December 2019. To the extent the applicant has alleged that Ms Yu's "licence was invalid" or that Ms Yu lost her registration as a migration agent due to some dishonest behaviour, I find there is no evidence before me to prove that Ms Yu's licence was invalid or that she lost her registration due to any dishonest conduct. Rather, the evidence before me is that Ms Yu's registration lapsed naturally and she applied for renewal of her migration registration on 21 July 2017 and it took the Department until 5 December 2018 to process the application, after which time the Department registered Ms Yu as a migration agent for the period 5 December 2018 to 4 December 2019.
2. By ground 1, the applicant submits that she missed her Tribunal hearing date because of "the mistake" of her migration agent Ms Yu. The Minister correctly pointed out that mere negligence or incompetence on the part of an agent will not constitute fraud so as to warrant judicial intervention: Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 (SZLIX) at [30] to [33]. To the extent ground 1 relies on the migration agent's alleged "mistake", I find that there is no basis for judicial intervention on that premise. I deal with the applicant's alternative argument that Ms Yu, in not telling the applicant about the hearing date of the Tribunal hearing, was acting fraudulently under ground 4 at [61] to [67] of this judgment.
3. Further, to the extent the applicant argues the Tribunal sent notifications of the hearing date to Ms Yu, even though the Tribunal was aware that Ms Yu's migration registration had lapsed, I find the Tribunal acted properly and discharged its statutory obligations in that the Tribunal also sent the hearing notification to the applicant as follows:

(a) Ms Yu was nominated as the applicant's representative in the application for review (CB 88).

(b) Subsection 494D(1) of the Act provides that if a person gives to the Minister the name and address of another person as the authorised person to receive documents in connection with the specified matters arising under the Act, then the Minister "must" send to the authorised person the documents instead of the applicant. However, subsection 494D(5) of the Act provides that the Minister need not comply with subsection (1) if the authorised representative is not a registered migration agent and the Minister reasonably suspects that the authorised recipient is giving migration assistance.

(c) In this case, the Tribunal decided pursuant to s 494D(5) of the Act to send the notification of the hearing date to both Ms Yu and to the applicant at the addresses notified on the application for review because it was aware that Ms Yu's migration registration had lapsed. Pursuant to s 441A(4) of the Act, the Tribunal was permitted to send by prepaid means the hearing invitation to the applicant at the last residential address provided to the Tribunal by the applicant in connection with the review, and pursuant to s 441C(4) of the Act, the applicant was deemed to have received the hearing invitation seven working days after the document was dispatched. The affidavit of Anna Davyskib affirmed on 31 May 2019 annexed a copy of the postal dispatch register of the Migration & Refugee Division of the Tribunal, which shows that a copy of the hearing invitation was sent to the applicant at the Griffith address by prepaid post on 25 September 2018. Therefore, the fact that Ms Yu made a mistake in putting down the Griffith address for the applicant does not assist the applicant, because the Tribunal pursuant to s 441A(4) of the Act properly sent the hearing invitation to the applicant at the last residential address given by the applicant in connection with the review.

(d) In those circumstances the applicant was deemed to have been notified of the hearing date in accordance with the statutory requirements as to the content and dispatch provided in the Act and the Migration Regulations 1994 (Cth). Therefore, irrespective of whether the applicant was in fact aware of the invitation, the applicant is taken to have received the hearing invitation: SZOBI v Minister for Immigration and Citizenship (No. 2) (2010) 119 ALD 233; [2010] FCAFC 151 per Stone, Jagot and Bromberg JJ. Therefore, I find the Tribunal was entitled to exercise its discretion to dismiss the application for non-appearance pursuant to s 426(1A)(b) of the Act.

1. For the reasons set out at [41] to [43] of this judgment I find that ground 1 does not disclose jurisdictional error or a reason for judicial intervention.

1. By ground 2, the applicant contends that the Tribunal discriminated against her and failed to consider that she and her children "can't survive" if they leave Australia.
2. The use of the word "discriminated" in ground 2 is not meant by the applicant to suggest that the Tribunal was biased against her. In any event, such a serious accusation of bias must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]. There is no evidence to suggest that the Tribunal was biased against the applicant in dismissing her application for non-appearance.
3. To the extent the applicant suggests the Tribunal failed to consider the merits of her matter, the Tribunal did not consider the merits because the applicant did not attend the hearing and the Tribunal dismissed the application pursuant to s 426A(1A)(b) of the Act for the reasons set out at [22] and [24] of this judgment. I find the Tribunal properly exercised its statutory powers in doing so and there was no jurisdictional error in the Tribunal dismissing the application.
4. Accordingly, ground 2 does not disclose jurisdictional error on the part of the Tribunal.

1. By grounds 3 and 4, the applicant alleges that:

(a) Ms Yu committed a fraud in the visa application process in that she set out the applicant's claims in the protection visa application and attached personal statement without the applicant's knowledge or instructions.

(b) Ms Yu committed a fraud on the Tribunal when she failed to notify the applicant as to the Tribunal hearing date.

(c) Ms Yu committed a fraud on the Tribunal when she failed to notify the applicant as to the opportunity to apply for reinstatement.

Relevant legal principles - fraud of migration agents

1. Before dealing with grounds 3 and 4 it is useful to set out the relevant legal principles as to fraud of migration agents.
2. As the Minister correctly submitted, fraud is a serious allegation that needs to be distinctly made and proved: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [15] (SZFDE). A finding of fraud is a "serious matter" (SZFDE at [38]), and the burden of proving such an allegation rests with the applicant. The Court must be satisfied that serious allegations of fraudulent conduct have been proved to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 and 368: SZLIX at [33]. It is necessary for the applicant to specify what was fraudulent, how it was fraudulent, and how it was acted upon: SZFDE at [41].
3. Further, the Minister correctly submitted that the applicant carries the onus of establishing that:

(a) the former migration agent was responsible for the fraudulent conduct;

(b) at the relevant times, the applicant had no knowledge of and was not complicit in the fraudulent conduct carried out by the migration agent;

(c) the applicant was not indifferent as to whether the migration agent engaged in the fraudulent conduct in the visa application process; and

(d) the fraud affected the decision-making under the Act: Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556; [2018] FCAFC 52 at [144].

1. Section 65(1) of the Act provides that "after considering a valid application for a visa", the Minister if satisfied as to certain criteria is to grant a visa and if not so satisfied, is to refuse to grant the visa. Whether a purported visa application is a valid application for the purposes of s 65(1) is a "jurisdictional fact" that this Court must determine for itself based on the evidence before it: Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 (Gill) at [17]; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 (Maharjan) at [44]. Section 47(3) of the Act provides that the Minister is not to consider an application that is not a valid application. Thus, fraudulent conduct of a migration agent can invalidate a visa application: Gill at [50]; Maharjan at [89] to [90]; [103] to [105]. While this Court cannot set aside the delegate's decision, it can consider whether declaratory relief should be issued in relation to the operation of s 48 of the Act: Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 at [49] to [52].

Allegation that the migration agent set out the claims in the protection visa application and attached personal statement without the applicant's knowledge or instructions

1. In relation to ground 3, the applicant asserts that the fraudulent conduct by Ms Yu, who at the time of acting in relation to the visa application was a registered migration agent, was that Ms Yu allegedly set out the claims in the statement at CB 38 and 39 and completed the protection visa application to insert the applicant had a well-founded fear of persecution because she was Catholic, without the applicants knowledge or instructions.
2. The applicant's evidence as to her allegation that Ms Yu set out the claims in the protection visa application (CB 1 to 37) and attached personal statement (CB 38 and 39) without her knowledge or instructions was as follows:

(a) At the First Hearing, the applicant stated that she knew Ms Yu through a work friend back in China (Tp31.11-31) and engaged Ms Yu to assist with her protection visa application following an unsuccessful judicial review proceeding in this Court in relation to a student visa application (Tp30.29-33). The applicant confirmed she gave the information in the protection visa application to Ms Yu but did not check the application before she signed it, as she could not read English and Ms Yu only handed her the form and asked her to sign it (Tp33.40-Tp35.8). The applicant said she did not ask Ms Yu to read out in Mandarin the completed application for her (Tp35.10-12) or think to request a copy of her protection visa application from Ms Yu (Tp53.1-4). In relation to the personal statement attached to the protection visa application, the applicant accepted her signature appeared on the document (Tp38.40-43) but said the contents were not interpreted to her before she signed the document and she was "not aware of the content" of it until Judicial Registrar Cummings brought it to her attention in 2024 (Tp39.3-7). When asked whether the applicant had explained to Ms Yu any fear she had about returning to China at the time of preparing the application, the applicant said that Ms Yu did not ask her about any fear she had about returning (Tp39.9-12) and the applicant never told Ms Yu the basis upon which she feared harm in China on the understanding that she would get an opportunity at an interview to tell the Department her claims (Tp52.36-46). The applicant agreed that she had no idea what was in the application that Ms Yu had submitted and made no attempt to ascertain what was in the application (Tp53.11-19) but agreed that she knew she was applying for a protection visa (Tp36.11-14).

(b) At the Second Hearing, the applicant claimed Ms Yu and her met during the time the applicant was seeking to appeal her student visa refusal (Tp68.46-47 and Tp75.26-27), Ms Yu assisted her with her judicial review proceedings, and subsequent to being unsuccessful Ms Yu proposed to the applicant that she should apply for a protection visa and offered her assistance (Tp63.46-Tp64.4 and Tp75.27-28). The applicant denied knowing about the protection visa application from other individuals in the community and approaching Ms Yu to assist her with lodging the application (Tp75.1-10). The applicant said Ms Yu assisted her with the protection visa application (Tp74.44-47) but claimed Ms Yu did not ask her why she wanted to apply for a protection visa (Tp75.12-39) and that she did not tell Ms Yu why she feared harm in China (Tp83.10-13). When directed to a handwritten answer of "Catholic" on the protection visa application in response to a question as to the applicant's religion, the applicant claimed that it was "impossible" for her to have written that answer herself as at that time her English was not very good and she did not know the word for Catholic in English (Tp76.6-21).

(c) The applicant's evidence at the Second Hearing in relation to the personal statement attached to the protection visa application was that she signed the document without knowing its contents (Tp85.39-41), and Ms Yu did not ask the applicant about her protection visa claims nor translate the document (Tp79.19-Tp98.14), and the applicant only became aware of the content of the personal statement when Judicial Registrar Cummings brought it to her attention in 2024 (Tp79.13-15). The applicant said the statement did not accurately record her claims to fear harm in China because she never told Ms Yu what her claims to fear harm were (Tp87.19-31).

1. Ms Yu was summoned by the Minister to give evidence as to the applicant's allegation that Ms Yu set out the claims in the protection visa application and attached a personal statement without the applicant's knowledge or instructions. Ms Yu's evidence was as follows:

(a) Ms Yu stated that the applicant approached her wanting to apply for a protection visa (Tp17.24-39) and she assisted the applicant with the protection visa application (Tp16.9-Tp17.10) and did not help the applicant with her previous student visa (Tp19.30-34). Ms Yu said she first met the applicant in person at Ms Yu's office in Sussex Street, Haymarket after a telephone conversation (Tp17.12-24 and Tp23.43-44), and they met on two or three occasions prior to lodgement of the application (Tp20.23-25 and Tp20.39-41).

(b) Ms Yu said that she had a discussion with the applicant, and followed her usual procedure for protection visa applications, being that she would discuss with the visa applicant "the reason why...he or she want[ed] to apply" (Tp18.9-14). Ms Yu gave evidence that she would always ask visa applicants first the reason they wished to apply for a protection visa and why they did not want to go back home, and they would tell her (Tp22.37-44). Ms Yu said she would also discuss whether the visa applicant had been harmed before they came to Australia (Tp24.10-26). Ms Yu gave evidence that visa applicants would ask her what other people gave as the main reason they wanted to stay longer, and that she would "try to give them a hint" about common reasons used by her clients from their region, but this was only put in their application if they agreed they had the same reason (Tp22.44-Tp23.6). Ms Yu denied inventing claims without the applicant's knowledge or instructions (Tp22.42).

(c) Ms Yu confirmed that she discussed with the applicant her reasons for seeking a protection visa (Tp23.10-16), and that in her discussion the applicant stated that she came to see Ms Yu to apply for a protection visa because her student visa was nearly expired, and she wanted to stay longer and work in Australia (Tp23.33-35). The applicant told Ms Yu that her parents were Catholic and had faced harm in China because they were Catholic (Tp26.45-Tp27.2). Ms Yu stated that the applicant provided her with "all the details" required to complete the protection visa application, and the applicant's answers were recorded (Tp21.23-26). Ms Yu's evidence was that after their discussions of these topics, the applicant "accepted" and "agreed all the reasons on the statement" (Tp26.13-22 and Tp41.29-37), including that claims were being made based on her parents' experience as Catholics in China (Tp41.45-46). After the applicant agreed to the contents of the personal statement, Ms Yu's office typed the statement. (Tp22.23-32). When directed to the handwritten answer of "Catholic" on the protection visa application in response to the question as to the applicant's religion, Ms Yu confirmed it was not her handwriting and that the only possibility was that the applicant added it (Tp19.13-36).

(d) Ms Yu stated that during one of the meetings after the initial meeting but before lodging the application, the applicant was shown the application and personal statement, and Ms Yu explained and translated the contents of the application and the personal statement from English to Mandarin for the applicant (Tp21.28-44 and Tp27.4-17). Ms Yu witnessed the applicant sign the protection visa application and the personal statement, and Ms Yu signed the declaration on the application (Tp20.45-Tp21.6 and Tp28.11-34). Ms Yu confirmed that she told the applicant what was in her application, including the reasons prior to lodgement (Tp27.14-17), and would have made sure that the applicant was happy with what was in the personal statement before taking any steps to submit it (Tp30.28-30).

(e) Ms Yu stated she told the applicant that after lodging the application, she would be interviewed by the Department (Tp30.32-35). Ms Yu told the applicant she would be asked what happened in her home country and whether she feared returning to her home country (Tp34.4-9).

1. I note that the onus rests on the applicant to satisfy the Court on the balance of probabilities that the fraudulent conduct occurred, being that Ms Yu included protection claims in the protection visa application and the applicant's statement without the applicant's knowledge or instructions. To satisfy the onus it is not simply a matter of the Court asking whether the evidence supporting that conclusion has greater weight than the opposing evidence. The evidence must be enough to enable the Court to feel an actual persuasion that the fact is so, that is that Ms Yu did include the protection visa claims without the applicant's knowledge or instructions: Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712; [1940] HCA 20 at 712; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [136]; [2000] NSWCA 29 at [136]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACCC [2007] FCAFC 132; (2007) 162 FCR 466 at [31]; [2007] FCAFC 132 at [31]; R v Galli [2001] NSWCCA 504; (2001) 127 A Crim R 493 at [55]; [2001] NSWCCA 504 at [55]; Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55], McDougall J at [55], McColl and Bell JJA agreeing.
2. In Kassem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 1834, Manousaridis J set out the following principles in relation to assessing credibility of witnesses (footnotes omitted):

[31] There have been a number of statements about how a court should assess testimony. For example in The Ocean Frost, Robert Goff LJ said:

It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.

[32] And in EPI Environmental Technologies Inc v Symphony Plastic Technologies Peter Smith J said:

(i) First, it is essential to evaluate a witness's performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.

(ii) Second, witnesses can regularly lie. However ...[that] does not mean necessarily that the entirety of that witnesses [sic] evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.

[33] Finally, there is the approach to fact finding described by MacKenna J.

This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running-down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiff's or the defendant's, and if I cannot say which, I decide the case, as the law obliges me to do, in the defendant's favour. The plaintiff has failed to discharge the burden of proof.

1. As can be seen from the evidence set out at [55] and [56] of this judgment, the oral evidence of the applicant and Ms Yu as to the circumstances surrounding the completion of the protection visa application is in direct conflict. The applicant and Ms Yu agree that the applicant knew that she was applying for a protection visa, but other than that fact, the two witnesses give directly different accounts of what happened in relation to the completion of the protection visa application and supporting statement. In this case, the evidence of both parties is largely uncorroborated as no contemporaneous documents or uncontroversial facts to support one party's testimony over the others exist.
2. Having considered the evidence of both the applicant and Ms Yu and any internal inconsistencies in their evidence and the plausibility of each story, I have concerns about the evidence of the applicant that Ms Yu would offer to assist the applicant to apply for a protection visa without discussing the applicant's protection claims with her and that Ms Yu would have just made up the claims and not discussed the claims with the applicant. However, I cannot say which evidence is more probable to the requisite standard. Therefore, the law obliges me to find that the applicant in this case has failed to prove to this Court that Ms Yu did include the protection visa claims without the applicant's instructions. A conclusion that the applicant has not discharged the onus is a sufficient basis for dismissing this ground for judicial review: Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 at [59]. Therefore, given the applicant has not discharged the onus of proving that Ms Yu did engage in fraudulent conduct, I find there was no proof of fraudulent conduct which invalidates the visa application and accordingly ground 3 fails.

Allegation that the migration agent failed to inform the applicant as to the Tribunal hearing date

1. In relation to ground 4, the applicant asserts that the fraudulent conduct by Ms Yu, who at the time was not a registered migration agent, was that she did not tell the applicant as to the Tribunal hearing date.
2. The applicant's evidence as to her allegation that Ms Yu failed to inform her as to the date of the Tribunal hearing was as follows:

(a) At the First Hearing, the applicant claimed that Ms Yu did not notify her of the hearing date (Tp62.41-43). Rather, Ms Yu told her to just keep paying her fees and that Ms Yu would give the applicant notice when there was an update in relation to the Tribunal application, but despite the applicant "constantly" following up as to when she would need to attend a hearing or go to the Tribunal, there was no news from Ms Yu (Tp43.22-45) or the applicant was told to "keep waiting" (Tp48.20-21). The applicant was unable to recall whether Ms Yu said anything in relation to whether she should appear before the Tribunal at a hearing (Tp61.24-27). She was then taken to her evidence before Judicial Registrar Cummings, in which she indicated that Ms Yu said to her words to the effect that she "wouldn't win the case even if [she] went there" (Tp61.29-Tp62.10). The applicant was initially unable to remember the exact time Ms Yu said this to her (Tp62.25). Her evidence then changed to "[s]he didn't notify me of the hearing date. Regarding whether she has said this sentence to me, I'm not quite sure now. But the important thing is she didn't tell me the hearing date" (Tp62.41-43). The applicant's evidence was that she never received a copy of the hearing invitation from Ms Yu (Tp69.13-Tp71.15).

(b) The applicant was adamant that she did not live at the Griffith address in March 2016 (Tp44.5-Tp45.29). The applicant accepted that she received letters in relation to Medicare from Ms Yu (Tp45.35-Tp46.12). Those letters recorded that she resided at the Griffith address.

(c) At the Second Hearing, the applicant said that Ms Yu never advised her of the scheduled hearing date either over the telephone or by text message, nor did she tell her that if she did not attend, her application would be refused (Tp87.33-Tp88.29).

1. Ms Yu's evidence as to the applicant's allegation that she failed to inform the applicant as to the date of the Tribunal hearing was as follows:

(a) Ms Yu's usual practice was to inform her clients the date the interview was booked and of the interview time by telephone call or text message (Tp34.23-27 and Tp34.38-Tp35.3). This would occur "very shortly" after receiving the notice, within a day or so (Tp47.40-47). In addition, Ms Yu stated her normal practice was to ask her clients whether they wished to attend the interview and inform them that if they did not attend, their application would be refused (Tp36.17-32 and Tp37.12-29). Ms Yu stated that if her clients were to go to the interview, she would prepare them for the interview (Tp37.31-35) and take them to the interview room (Tp34.41-40 and Tp47.3-30).

(b) Ms Yu stated that the applicant was "eager to know" the scheduled hearing date (Tp45.30-32) and confirmed that she followed her usual practice in relation to the applicant's application and informed her by telephone call or if not by telephone call, then by text (Tp37.21-23, Tp38.16-21 and Tp45.30-32). She said she told the applicant the date of the Tribunal hearing twice and as soon as Ms Yu received the date, however the applicant insisted on not attending (Tp44.21-33 and Tp45.17-18). When asked whether in addition to telling the applicant the date of the hearing, she also told the applicant the time and location of the hearing, Ms Yu confirmed "Yes, definitely. Definitely" (Tp47.32-33).

(c) Ms Yu stated the applicant told her "clearly" that she did not want to go to the hearing and that she never wanted to go (Tp44.14-19).

(d) Ms Yu stated that her and the applicant were in "very frequent contact at that time", including having met in person in Auburn prior to the Tribunal decision, and that the applicant knew exactly what happened during her application (Tp45.1-19). In addition to keeping in contact, the applicant would sometimes call Ms Yu to ask if anything had happened (Tp43.29-32).

(e) Ms Yu lodged the application for review with the Tribunal on the applicant's instructions (Tp42.5-8), and she completed the online application form on the applicant's behalf (Tp42.44-45). Ms Yu candidly said that the Griffith address recorded for the applicant was wrong and this was a mistake (Tp43.1-27).

1. I prefer the evidence of Ms Yu over that of the applicant for the following reasons.
2. First, Ms Yu's evidence was internally consistent and supported by detailed explanations. Ms Yu described a clear process which she stated she followed in the applicant's case and provided details as to her correspondence with the applicant. By contrast, the applicant's evidence was at times internally inconsistent and generalised. The applicant first claimed that Ms Yu told her to "keep waiting" but never notified her of the hearing date, but later claimed Ms Yu informed her that there was "no point" in attending the hearing because she would lose. I find Ms Yu's evidence to be more reliable than the applicant.
3. Second, Ms Yu's evidence that she and the applicant were in "very frequent contact" during the relevant period, including an in-person meeting in Auburn and regular telephone calls initiated by the applicant is both plausible and consistent with the applicant's admission that she was "constantly" following up with Ms Yu for updates. This supports Ms Yu's assertion that the applicant was informed of developments in her application and the Tribunal process.
4. Given that I accept the evidence given by Ms Yu over that of the applicant, I find that Ms Yu did inform the applicant of the hearing date before the Tribunal. Even if I am wrong and the evidence of the applicant is accepted, I find that the applicant has not discharged the onus of proving that Ms Yu in not informing the applicant as to the hearing date was acting fraudulently. If I was to accept the evidence of the applicant, the highest her evidence goes is that Ms Yu was negligent or there was mere inadvertence or incompetence on the part of Ms Yu in not informing the applicant as to the hearing date. The authorities are clear that mere negligence or inadvertence does not constitute fraud: SZLIX at [30] to [33]; SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 (SZFNX) at [33]. In any event, given the matters set out at [43] of this judgment and the relevant statutory provisions, the fact that Ms Yu did not inform the applicant as to the hearing date is not to the point in circumstances where the Tribunal actually sent the applicant notification of the hearing date and the statutory provisions deem the applicant to have received such notification of the hearing date.

Allegation that the migration agent failed to inform the applicant as to whether she could apply for reinstatement

1. The applicant's evidence as to her allegation that Ms Yu failed to inform her as to whether she could apply for reinstatement was as follows:

(a) At the First Hearing, the applicant stated that Ms Yu informed her she had lost at the Tribunal and that if she wished to continue to have a visa, she would need to continue with an appeal to this Court and continue to pay Ms Yu's fees (Tp48.36-39).

(b) At the Second Hearing, the applicant stated that Ms Yu had discussed the Tribunal's protection visa refusal decision with her before lodging the judicial review application to this Court (Tp89.34-47), however Ms Yu did not inform her that she could apply for reinstatement before the Tribunal (Tp90.1-5).

1. Ms Yu's evidence as to the applicant's allegation that she failed to inform the applicant as to whether she could apply for reinstatement was as follows:

(a) Upon receipt of a notification of refusal of an application, Ms Yu stated she would write down the date and the reason for refusal (Tp39.13-18) and inform her visa applicant clients of the refusal date and the main reason why the visa was refused (Tp39.36-Tp40.7). Ms Yu would provide her clients with a copy of the letter if they asked, but generally did not send them the letter if they did not ask (Tp39.40-47). Ms Yu said that she only told the applicant the refusal, and the applicant did not ask why her visa was refused (Tp40.1-13) or request a copy of the dismissal decision (Tp60.26-34).

(b) Ms Yu confirmed that she told the applicant that she was able to apply for reinstatement and was sure of this, but the applicant did not want to (Tp60.1-15). Ms Maddocks tested Ms Yu's understanding as to what is meant by reinstatement, to which Ms Yu said that the applicant could have another time arranged for hearing if the Tribunal accepted the applicant's reason as to why she missed the hearing (Tp60.8-12).

(c) Ms Yu confirmed after the Tribunal refused the applicant's protection visas, the applicant asked for assistance with her judicial review application (Tp60.36-38) and Ms Yu both assisted the applicant in making the application to this Court and met the applicant at the first court date (Tp44.1-8).

1. I prefer the evidence of Ms Yu outlined at [69] of this judgement over that of the applicant, given Ms Yu's evidence was clear, internally consistent and supported by detailed explanations of her usual practice. She described the process undertaken upon receipt of the Tribunal's refusal notification, which included explaining the option of reinstatement to the applicant. Ms Yu's understanding of reinstatement was tested in cross-examination and demonstrated accuracy, which supports her credibility. I find the applicant's evidence that Ms Yu did not inform her that she could apply for reinstatement before the Tribunal and only discussed lodging a judicial review application to this Court is less plausible and instead accept Ms Yu's evidence that she informed the applicant as to the ability to apply for reinstatement before the Tribunal, given her knowledge of procedures and credibility as a witness.
2. Given that I accept the evidence given by Ms Yu over that of the applicant, I find that Ms Yu did inform the applicant that she could apply to the Tribunal to reinstate the dismissed application. Even if I am wrong and the evidence of the applicant is accepted, the applicant has not discharged the onus of proving that Ms Yu, in not informing the applicant as to the opportunity for reinstatement of the application, was acting fraudulently. If I were to accept the evidence of the applicant, the highest her evidence goes is that Ms Yu was negligent or there was mere inadvertence or incompetence on the part of Ms Yu in not informing the applicant as to the opportunity for reinstatement and such conduct does not constitute fraud: SZLIX at [30] to [33]; SZFNX at [33].
3. Accordingly, I find that ground 4 fails.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.