Afzal v Minister for Immigration and Citizenship [2025] FedCFamC2G 1257

FedCFamC2G|2025-08-07

The applicant did not contend that his agent was fraudulent or dishonest. No submission made by the applicant suggested that, if the applicant told the agent about his poor mental state, the agent's decision not to communicate this information to the Tribunal involved dishonesty by the agent. Further, in the unlikely event that a decision of the agent not to communicate this information to the Tribunal was dishonest, it is not evident how it affected an "aspect of the operation of the legislative scheme": DUA16 at [15]. For these reasons, even if I had adjourned the hearing to allow the applicant to give sworn evidence in an affidavit about this, this evidence at its highest would not establish a jurisdictional error in the Tribunal's decision.

At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Wilford sought an order that the applicant pay the first respondent's costs in the sum of $6,500 which was less than the first respondent's solicitor/client costs and less than the scale amount of $8,371.30. The applicant did not oppose this amount. This amount appears reasonable. I will make this order.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

(a) In relation to the applicant's complaint that the Tribunal failed to understand his poor mental state or mental health condition on the day of the hearing, the applicant did not identify any further evidence he might want to obtain. For example, he stated that he did not say anything to the Tribunal about his mental state or mental health condition during the hearing, but instead said something to his agent. He also confirmed that, other than the medical certificate from Dr Chen, he had no other medical records on which he wished to rely.

(b) In relation to the applicant's complaint concerning the conduct of his agent, first, the applicant was unable to explain why he did not file or serve any evidence concerning this issue earlier in the proceeding. Second, the circumstances in which misconduct by an agent may result in a jurisdictional error in the Tribunal's decision are limited: see, for example, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501; and Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 (DUA16). For example, mere negligence by an agent is not sufficient: see DUA16 at [15]. Third, I had reservations about the genuineness of the applicant's complaint and was concerned that the applicant would not file and serve any further evidence if given the opportunity. One reason for my reservation was because the applicant, during the hearing on 31 July 2025, changed his description of his complaint relating to his mental health or state of mind a number of times. A second reason for my reservation was because the applicant was unable to explain why he did not file or serve any evidence concerning this issue earlier in the proceeding. Fourth, I was concerned about the additional costs burden on the first respondent.

During the hearing on 31 July 2025, the applicant complained that the Tribunal failed to understand, or give importance to, his poor mental state or mental health condition on the day of the hearing before the Tribunal. However, the applicant acknowledged to the Court that he did not raise with the Tribunal any concern about these matters at the hearing. The Tribunal's reasons for decision do not indicate that it had any concern about the applicant's mental state, mental health or ability to participate in the hearing on 18 August 2021. The Tribunal is not required to consider matters not put to it or which did not arise squarely on the materials before the Tribunal: see, for example, NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1. This complaint does not identify a jurisdictional error in the Tribunal's decision.

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