BMO17 v Minister for Immigration and Citizenship [2026] FCA 382

Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; (2019) 269 FCR 464

Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1

Minister for Home Affairs v DUA16 [2020] FCA 46; (2020) 271 CLR 550

Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501

Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; (2016) 247 FCR 554

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445

Administrative and Constitutional Law and Human Rights

The Second Respondent filed a submitting notice save as to costs

1. The First Respondent's name is changed from "Minister for Immigration, Citizenship and Multicultural Affairs" to "Minister for Immigration and Citizenship".
2. The Second Respondent's name is changed from "Administrative Appeals Tribunal" to "Administrative Review Tribunal".
3. The appeal is dismissed.
4. The Appellants are to pay the First Respondent's costs to be taxed, if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The Appellants appeal from a judgment of the Federal Circuit and Family Court of Australia (Div 2) (FCFCoA): BMO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 304 (J). The application before the primary judge was an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision by a delegate of the Minister not to grant the Appellants Protection (subclass 866) visas (protection visas) under the Migration Act 1958 (Cth) (Act).
2. The Appellants are husband and wife and are citizens of Malaysia. They came to Australia in July 2015 on tourist visas. The application for protection visas was lodged on 5 October 2015. That application made protection claims on the basis of involvement in the Bersih, a democratic protest group in Malaysia, from which harm from Malaysia police was feared.
3. The Appellants were represented by a migration agent before the Tribunal. When seeking review of the delegate's decision in the Tribunal, the Appellants disavowed the protection claims and said they had never been involved with the Bersih movement and did not fear any harm if they returned to Malaysia. Rather, they said they sought visas so that the Second Appellant (the wife) could study cookery in Australia.
4. The Tribunal summarised the Appellants' evidence as follows (emphasis added, citations omitted):

• The applicants departed Malaysia for Australia in July 2015 so as the second named applicant could pursue study in cookery.
• They were advised by the applicant's brother's friend, Gobu to travel to Australia. He advised he would have someone pick them up and organize the visa.
• They arrived and when there was no one to pick them up they phoned their contact who told them to travel by train to Swan Hill, which they did.
• The go-between asked them to pay him $5,000 which the first named applicant refused to do until their visa was organised.
• They were taken to the Good Night Farm House, which was very dirty and the first named applicant told the go-between they could not stay there. They were them taken to the caravan park for two weeks then left alone.
• They moved on their own accord to the Grand Hotel in Nyah West and lived there for two months. He said they had $5000 Australian and no job and money was running out.
• They met a man called Roslyn when their visa was close to expiring who advised them he could get a student visa for them. He said they need to get work rights and then after six months could apply for a student visa. He asked for $3,000 which the applicant refused to pay until the visa was granted. They paid him $300.
• He said they then received a visa with work rights, which was sent to their hotel address. He said in October 2015 they met at Swan Hill KFC and he gave Roslyn $1,000.
• He said Roslyn, whose phone number he offered, kept asking him for the balance of the money and the applicant said he told him he would pay it once they receive their student visas. He said Roslyn kept chasing for the money but they refused.
• He said they stayed at the Grand Hotel until January and then moved to the suburbs.
• He said they have been misled and want to apply for student visas so the second named applicant can pursue her passion and finish the cookery courses. He said they did not know Roslyn had applied for protection visas instead.
• The second named applicant said her Certificate III in Commercial Cookery finishes in May 2013 and her Diploma of Hospitality in May 2018 and she very much wants to finish the courses and then return to Malaysia.

1. As may be noted, the narrative put forward was that the Appellants (or at least the First Appellant) did not know that Roslyn had applied for protection visas for them. Roslyn was the man who assisted the Appellants in completing and making their visa applications.
2. Having regard to their position, the Tribunal concluded that the Appellants were not in need of protection and affirmed the decision not to grant them protection visas. The Tribunal determined not to refer the matter for Ministerial intervention as the Appellants had an offshore visa path available to them, and could seek Ministerial intervention themselves.

1. Somewhat curiously, in light of what occurred at the Tribunal, the judicial review application lodged by the Appellants in the FCFCoA largely pressed grounds advancing the protection claims they had disavowed in the Tribunal. Nevertheless, in the FCFCoA, the Appellants went on to contend that the Tribunal's decision was affected by jurisdictional error "as a result of fraud by their migration agent in the visa application process": at J [2]. The Appellants were litigants in person before the primary judge, and had the assistance of an interpreter.
2. As set out in her Honour's reasons, following the hearing of the matter on 15 December 2021, the primary judge formed the view that she ought to have given the Appellants an opportunity to provide sworn evidence in support of the fraud claims: at J [22]-[25]. As a result, her Honour gave the Appellants an opportunity to file further evidence, together with written submissions, directed to the fraud claims. Her Honour also listed the matter for further hearing on 2 December 2022.
3. Thereafter, the Appellants filed an affidavit sworn by the First Appellant, and the Minister filed further written submissions. Both Appellants gave oral evidence at the further hearing, following which there was a further round of written submissions.
4. The primary judge (as set out at J [32]) approached the matter on the basis that, if the Appellants could discharge their onus of establishing that the visa application was made without their knowledge or authority, or was otherwise fraudulent and that they were not complicit in or recklessly indifferent to that fraud, the visa application would be invalid, referring to Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 (Maharjan) at [105] (Gilmour and Mortimer JJ).
5. The primary judge said as follows regarding the relief available to the Appellants if they could establish that they were the innocent victims of fraud, and the heavy burden they faced (at J [39]):

Declaratory relief is available to the applicants if they are able to show that they are the innocent victims of fraud by their migration agent, and that the third party fraud stultified or disabled a process or processes under the Migration Act: Maharjan at [78]. The applicants bear the onus of proof to establish invalidity in the protection visa application: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67]; Marharjan at [78]. The onus of proving fraud is a 'heavy burden': SZRUR v Minister for Immigration and Border Protection ( 2013) 216 FCR 445; [2013] FCAFC 146 at [51].

1. Over a series of paragraphs - at J [44]-[62] - the primary judge set out in detail the evidence given by the Appellants and pointed out a number of inconsistencies, differences in their evidence and changes to the account they gave. The primary judge, having seen and heard the Appellants give evidence and be cross-examined, concluded that the Appellants "have been very selective in the evidence that they have given to the Court, only volunteering evidence that they consider will advance their case": at J [65].
2. The primary judge identified three ways in which the Appellants suggested they had been the victims of fraud carried out by Roslyn: on the basis of Roslyn being an unregistered migration agent; as a result of Roslyn lodging an application for a protection visa without their consent; and as a result of the protection visa containing information that was false or incorrect: at J [66].
3. In relation to the first matter, the primary judge accepted that the Appellants met with Roslyn and he assisted them in completing forms for the purposes of making a visa application and a bridging visa application, for which the Appellants paid him $300 on the first occasion they met him and a further $1000 on a subsequent occasion, short of his requested $3000 fee: at J [68]. The primary judge concluded, however, that no finding could be made that Roslyn was an unregistered migration agent (at J [69]ff) and, in any event, even if that had been established, it would not automatically follow that the visa application would have been stultified or disabled: at J [74].
4. As to the second matter, the primary judge did not accept that the protection visa application was made without the Appellants' knowledge or authorisation, concluding that they did understand that the visa application they were making was for a protection visa: at J [76], [78]. The primary judge observed that "[t]here are significant gaps in the evidence in relation to what happened when the applicants met with Roslyn and the applicants have chosen to provide evidence or information about only some of the conversations they had with Roslyn and some of the information they provided to Roslyn": at J [76].
5. The primary judge acknowledged the possibility that the Appellants may have understood that they would be able to change their visa to a student visa at a later date, but found that "they still understood that the visa application they were making in or around September 2015 was for a protection visa": at J [78].
6. On the third matter, the primary judge noted that the Appellants' submissions focused on the inclusion of incorrect details in the visa application - a date of birth, a date of departure from Malaysia and an email address - not on the inclusion of incorrect protection claims: at J [86]. The primary judge concluded that the inclusion of such incorrect details did not show any deliberate inclusion of false information: at J [82]-[83]. While not making a positive finding that the Appellants were complicit in any fraud constituted by the inclusion of the false protection claims, the primary judge concluded that the Appellants had not discharged their onus of establishing fraud based on the content of the protection claims: at J [86]-[89]. The primary judge again referred to the Appellants having not given a full account of the information they provided Rosyln: at J [89].
7. While not strictly necessary, in view of her Honour's conclusion that the Appellants had not established any fraud, the primary judge went on to consider whether the Appellants were recklessly indifferent or wilfully blind to the commission of any fraud: at J [90]ff.
8. The primary judge set out significant parts of the Appellants' evidence that indicated that they did not trust Roslyn (at J [94]), and observed that the Appellants sighted at least part of the forms before signing them and asked questions about the forms, including why one of the forms was for a protection visa: at J [95]. The primary judge observed that (at J [95]-[96], emphasis added):
   1. ... This is not a case of unsophisticated applicants who were completely reliant and dependent on a migration agent to lodge their visa application. Based on the limited information the applicants have chosen to provide about their meetings with Roslyn, it is clear that they asked questions and took steps to look after what they perceived to be their interests, including by questioning Roslyn about the forms and information required, and negotiating regarding payment for services.
   2. The applicants saw enough of the forms when they signed them to know that they were not at that stage applying for student or work visas, and that at least one of the forms was for a protection visa. On the applicants' evidence, they did not need protection. As noted above, there is no evidence before the Court as to any discussions that took place in relation to the content of any claims for protection.
9. The primary judge noted that, until the Appellants' closing submissions were filed (ie after they gave evidence), it had appeared that they had signed the forms once they had been completed: at J [98]. Their closing submissions implied, for the first time, that the visa application forms had not been complete when the Appellants signed them: at J [98]. On that matter, the primary judge concluded (at J [99], emphasis added):

In any event, whether the applicants signed a completed visa application form without seeking any opportunity to review it, or whether they signed an incomplete visa application form and simply left it for their agent to complete and submit, I find that they were recklessly indifferent or wilfully blind to any fraud committed by their agent. It is particularly relevant that the applicants had seen that one of the forms was for a protection visa, and that their conduct and questions referred to in [94] above suggested that they had doubts about Roslyn and thought he might cheat them, and yet still chose to allow him to lodge a visa application that they had not viewed. I infer from their conduct in these circumstance that they were recklessly indifferent to the truth of any claims for protection put forward to the Department to support their protection visa application.

1. The Appellants' Notice of Appeal advances two grounds of appeal, but the Appellants did not press Ground 2 (which had asserted error in the primary judge's finding that the Appellants were recklessly indifferent to the fraud of the agent).
2. By Ground 1, the Appellants contend that the primary judge erred at J [75]-[79] on the basis that:

(a) because the Appellants were told that they had to apply for "this kind of visa" and the application would be changed to a student visa application after six months, it is to be inferred that Roslyn gave them this false information for dishonest reasons (financial greed);

(b) it is to be inferred that the Appellants did not understand that lodging a protection visa "came with legal ramifications", including the operation of ss 48 and 48B of the Act to forbid a student visa application being made by them onshore; and

(c) the fact that the Appellants knew in general terms that an application for a visa "styled 'protection visa'" was lodged in their name was "not sufficient to reject their case".

1. It is relevant to note that the part of the primary judge's judgment impugned by Ground 1 concerns the existence of fraud by Roslyn on the basis of a protection visa application having been made without the Appellants' knowledge or authorisation; the primary judge dealt separately with the question of whether the Appellants were recklessly indifferent or wilfully blind to the commission of fraud.

1. In their written submissions, the Appellants argued that the primary judge overlooked "the critical point", which was that the Appellants had been misled into thinking that a protection visa application was "needed to get into this country" and that, once that application was made, "their 'visa status' could be changed after six months". They contended that: "The relevant dishonesty was thus not lodging a PV [protection visa] application contrary to the wishes of the appellants (cf J[66(b)]) - it was in deceiving the appellants into thinking that they could obtain student visas via the course that Roslyn was plotting."
2. The focal point of the asserted fraud was refined in oral submissions. The key contention was that the Appellants had been led to believe that they could apply for a protection visa that could be converted to a student visa in six months (the convertibility contention).
3. In their written submissions, the Appellants invited the Court to infer that the representation by Roslyn was dishonest because it was wrong and, at the very least, Roslyn was reckless to the possibility that what he was telling the Appellants was false. While the Appellants submitted that the Court did not need to find any motive on the part of Rosyln to be satisfied that he was dishonest, the Appellants suggested that Rosyn's failure to lodge a student visa application was driven by greed as such an application would have been quickly rejected as invalid because the Second Appellant was not at that time enrolled in a course (which is a condition of validity). Had Roslyn taken this path, according to the Appellants, it would have risked his "opportunity to extract money".
4. The Appellants written submissions on Ground 1 concluded that:
   1. It is thus immaterial that the appellants knew that PV applications were lodged - they were lodged in circumstances where they were dishonestly misled as to what could be achieved by same. Had the dishonesty not occurred, and the second appellant not been assured as to the propriety of lodging PV applications, they would not have lodged the PV applications.
   2. In failing to draw these inferences, the Judge erred, and this is an appellable error in an appeal by way of re-hearing.
5. In oral submissions, the Appellants drew back from suggesting that this Court, on the appeal, could or should make findings about whether Rosyln's representation (regarding the convertibility contention) was made dishonestly, and what motivated it. Rather, the way the case was framed on the appeal was that the case in relation to fraud that the Appellants advanced below did assert fraud based on the convertibility contention and that this was not addressed by the primary judge. They submitted that the primary judge failed to deal with the point of fraud they were advancing, with the consequence that findings of fact had not been made that would allow this Court to determine the merit of the fraud allegation (and related issues concerning whether the Appellants had knowledge of, or were indifferent to, the fraud). Consequently, the Appellants submitted that if they established the error for which they contend, the matter would need to be remitted to the FCFCoA. The FCFCoA would then determine the merit of the fraud allegation. The Minister agreed that, if the error contended for were found, the matter would need to be remitted.
6. The Minister contended that, by advancing Ground 1, the Appellants are attempting to re-write history by raising an allegation of fraud that was not raised below, was never part of their case and which directly contradicts evidence and arguments that the Appellants ran below. The Minister's second contention was that, in any event, the newly articulated dishonesty cannot give rise to error or provide a basis for a declaration that the visa application was invalid because, even if made out, such dishonesty could not have affected an exercise of any duty, function or power of the delegate of the Minister under the Act.

The appeal must fail because the Appellants did not advance the contention of fraud (the convertibility contention) on which they now rely

1. The Appellants accepted that if this Court concludes that they did not advance the fraud contention on which they now rely before the FCFCoA, the appeal must be dismissed. They expressly eschewed seeking leave to rely on a point not advanced below.
2. The critical question, then, is whether, in the FCFCoA, the Appellants advanced the fraud contention now advanced in the form of the convertibility contention. This requires reviewing the material before the FCFCoA by which the Appellants put their case. The Appellants were litigants in person before the FCFCoA and made oral submissions and gave evidence through an interpreter. These constraints must be borne in mind when reviewing the record below. I have, accordingly, conducted that exercise focusing on the substantive character of the Appellants' case, as it was advanced below, not the finer details of exactly how it was expressed.
3. The Appellants accepted that, in the conduct of the case below, the primary judge was scrupulously fair to the Appellants and provided them every reasonable opportunity to put their case (including giving additional oral evidence), but was also fair to the Minister. Both parties were invited to put on written submissions after the hearing in which both Appellants gave oral evidence and were cross-examined.
4. After lodging their application for judicial review in the FCFCoA - which, as noted above, curiously appeared largely to continue to press protection claims, albeit with the addition of references to the Appellants' desire for a student visa - the next relevant document is the written submissions of the Appellants dated 1 October 2021. These submissions appear to have been prepared with legal assistance. In these submissions, the Appellants stated (emphasis added):

The Applicant seeks that the Honourable Court direct the Administrative Appeals Tribunal to conduct a fresh hearing where the Applicant may have its protection visa refusal decision review determined according to law - focusing on the fraud that was perpetrated against them by an unregistered agent who without their knowledge or approval lodged a protection visa.

1. The submissions went on to detail the protection claims made by the Appellants and referred to the Appellants in terms suggesting that they did continue to make protection claims. Nevertheless, I will proceed on the basis that, as the Appellants' counsel submitted, these parts should be understood as the Appellants merely reciting the claims that had been made in the protection visa application.
2. Before setting out the judicial review application, the initial submission referred to a hearing before the Tribunal, stating that they informed the Tribunal that "they did not make the protection visa claims and an unregistered migration agent duped them and made the claims", and that they gave a detailed account "of how they were engaged into an elaborate fraud by an unregistered migration agent". The submissions then put the judicial review application on the following basis, before referring to relevant case law (emphasis added):

The Applicants however wish to argue that they should not be punished by the Tribunal or the Department when it was the conduct of an unregistered agent that engaged in an elaborate scam that resulted in the protection visa being lodged.

1. In making submissions on how the case law was to be applied to the facts, the Appellants submitted that (emphasis added):

32. The Applicants accept they do not qualify for a protection visa.

33. They had no idea they were applying for a protection visa.

1. It is submitted that the Applicants never applied for the protection visa. They had no idea this was done.
2. An unregistered agent engaged in an elaborate scam and lodged a protection visa for them - for which they gave no instructions or authority or agency.

1. To this point, the clear contention being advanced was that the Appellants had not authorised the lodging of an application for a protection visa, and did not know that such an application had been lodged. The "scam" they identified was the making of the protection visa application without their knowledge or authority.
2. As noted above in paragraphs 8 and 9, pursuant to orders of the primary judge, the Appellants had the opportunity to file affidavit evidence in support of their fraud claims. The only evidence they filed was an affidavit of the First Appellant dated 26 October 2022, which: pointed to errors in the protection visa application regarding matters such as a date of birth, an email address, a physical address, and the date of arrival; and attached photos of Roslyn, as well as certificates and records of the Second Appellant's cookery and hospitality studies.
3. The Minister put on written submissions dated 24 November 2022. Those submissions pointed out that the affidavit of the First Appellant did not establish any fraud. The submission distinguished the Appellants' circumstances from those in Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; (2016) 247 FCR 554 (Singh), stating that (emphasis added):

The evidence in this case indicates that the applicants were aware that a visa application was being made on their behalf. The applicants signed the visa application and all correspondence from the Department regarding the visa application was sent to the applicants' email address. The Minister submits, in those circumstances, that the applicants were or should have been aware that they had applied for a Protection visa, rather than a Student visa and it cannot be said that there was third party fraud upon them.

1. At this point, it may be noted that the Minister's submissions indicated that he was proceeding on the basis that the asserted fraud was the submission of a protection visa application without the Appellants' knowledge.
2. In oral submissions on the appeal, the Appellants relied heavily on the transcript of the hearing before the primary judge. The following aspects of that transcript are relevant.

(1) The primary judge confirmed with the Appellants that they were alleging that the "visa application process was affected by fraud". The primary judge referred to the Appellants' submission as advancing a claim that "an unregistered migration agent lodged an application for a protection visa without your knowledge or approval". Both Appellants responded "Yes, your Honour".

(2) After assisting the Appellants to read the First Appellant's affidavit into evidence and explaining procedural matters, the primary judge asked the Second Appellant to leave the room where she was with her husband - the hearing was conducted by audio-visual technology - and told the First Appellant that he would have an opportunity later in the hearing to make submissions about why they said the facts establish fraud.

(3) The First Appellant's evidence - omitting transcript of an objection - was as follows (emphasis added):

So I would like to explain everything, how we were treated by them. So I came to Australia in 2015 with the help of - by one of my friends. Yes, the reason that we came to this country - for my wife - was to consider her further studies, and also she likes to cook. That's a hobby. So we came - I came here with her to help her for cooking. So they ..... they also say that that's a - before this thing has all happened. So he - here was my ..... called Cogu, and he said call Shanka. So first we came to Australia at the place called Good Night Farm. So when new came to know that we were - the reality that ..... moved into Tilly Bar Hotel for two weeks. Then we ..... for - after that. So when we were there we do not have any job. Then whatever the money that we had brought into this country, we spend all those money. So we saw there are some people who came to Malaysia. They are working here with the work rights. So when I questioned that, the other people gave me the agent, the phone number. So they have given his name as Roslyn, and the phone number, too. So when we come - so contacted Roslyn, and asked him whether we can meet him ..... he said yes, but we have to come to Melbourne. So at that time we lived in ..... so yes. So we had to travel by public transport, by bus and train to go to Melbourne. So I requested him. My wife wanted student visa to study here. Also I want to have work visa to work here. So we came here with a tourist visa that was valid only for three months. So at that time, all ..... two and a half months here. So when I requested that - that student visa for my wife and a work visa for me, he already brought some forms with him. He just gave us our - our black, white paper. So he just gave it to us to fill out all the - the - our details. Birth and details. Like name and the - I ..... details and everything. So then after that he has to take that file paper from us, but he showed that ..... but didn't explain all the other forms. So he ..... pointed us to sign, and we believe him, and we sign in that form.

...

I would like to mention, your Honour, that I'm not lying anything. That's exactly what happened to me, as I have explained. Yes. As I mentioned, the ..... to meet Mr Roslyn. He had - he wanted the blank paper. That's us to write down all our family details, names and that, everything. So after that he ask us to sign in the forms for some certain places. But so when my wife signing the document, she noticed something different on the form at one particular place, and she questioned him why do we need to sign in this form. So the ..... given by him - this is for the bridging visa. "If you want to study and work, first you must get bridging visa." So then he take - after six months, they will call you for an interview. Before that, you have to pay ..... in fully. So then we paid him $300 at that time. So at that time we thought better to take him ..... picture because suppose if something happen, then we have a proof of him. So this is the picture of - we have taken at that time. There is a photograph we have attached.

...

So we mention it to him at that time, if - suppose if something happen, this is only proof that we have as you work for us. So then he agreed to take the picture with us. Then he said, "After you finish interview, you must ..... the balance money." But the ..... only paid him $1000. So we told him we are applying for the bridging visa, but this is not the student visa and the proper work visa. Then he said this is only for temporarily. After six months, "I will make a change here for you to get the proper visa." Then late when he came to Nowra, "This application has been refused." So the - then when we came to know that he was cheated us, and we just talk to some other people. Then later we went to see that agent called TCA. So yes - yes. They checked all ..... the court. They ..... explain it to us. "You are not applied for a - a student visa. You applied for a protection visa. If you want to study here, you must apply for a - a student visa, so why did you go to apply the protection visa." So they explained it to us, saying that under this visa you have limited time to study, but only the problem is if you go back to your country, you cannot return here. So then they take ..... studies ..... my wife continued her studies here. So they are - already explained everything at the beginning. In respect of the law and order in this country, we did not come here to cheat anyone. Yes, when my wife was - studied at level 2 or 3, I cannot remember exactly, she started at TAFE college. She has not completed her diploma yet. She gotten injured at a ..... place. So then we - by the time we got that hearing too, so we make that - make a request that to help her - recommend to the Minister to give us a visa to stay here. Our future is only in this country now.

...

[in cross-examination]

As I said, that....in the country....who work there, they say they got the visa through him. Yes. The things - just when we apply for the visa, he promised - and after six months, he will change this visa condition to student visa, but he didn't. When we tried to call him, he never answered our phone calls. Then we came to know he is not a properly registered migration agent. He just cheated us.

(4) The Second Appellant's evidence, was in the following terms (emphasis added):

The thing what has happened, I surely, without our knowledge, as a protection visa, the unregistered agent, he applied for the protection visa on behalf of us. Yes. We do not have any issues in our country to seeking asylum or protection in Australia. That is not the reason we came to Australia. We came to - here to study. The situation was changed here when we came here because we were cheated. After we came here, only became to know that we were cheated. The person - my husband's friend, he said he will help us to get the student visa, and also my husband to come and work here. That's what he said when we came here. We stayed in a hotel, and we saw a lot of Malaysians are working in that hotel. The thing just - they - only they ask us - those managing workers ask us, "On what visa you arrived here, and what visa are you now?" Then only we said just we are came on a tourist visa that's valid only for three months.

Then they said, "If you want to stay any longer, you must apply for some other visa". So those friends suggested - those workers suggested he is the person - they have used unregistered agent's details. We were not sure he was unregistered at that time, but they said he has helped us to work here legally". So when we talked to him, he said he - he's unable to come to our place. He ask us to come to Melbourne. So initially he bargained with us. He said to apply for this visa, you have to pay $3000, and also he got some forms to ..... So by the time he gave us a blank paper and asked us for all our personal details, like our full name, my country address, and the school we had studied, and our family members' details - everything. So ..... we have written everything and gave it to him. So then I questioned him, "We are going to apply for the visa only for us, so why do you ask us to give our family details?"

Then he said, "That is a ..... in this country. When you apply for any kind of visa, you have to give all your family details". Then he asked us to sign in some places of the form, then we signed. So when I signed the forms, so I noticed that one form - the top of the form it says "protection visa". Then I had a doubt, I question him. "Why do we need to apply for a protection visa?" Yes. Then he said, "This is a legal form. Also to apply for a visa in this country, and after six months, we can change your visa status - a different kind of visa. For the time being, you will have to apply for this visa to get in". So we only sign in that form at that page, and we did not fill out anything - any of our details. Yes. One thing I would like to mention,

that my date of birth has been written incorrectly in that form. If I am the one filling out that form, I won't have written my date of birth incorrectly, so that's what I mentioned that as an evidence.

Yes. Also just we arrived in Australia on that 30 July 2015, but in the application, it has mentioned 20 July in 2015. If he fill out that form, he never make a mistake as ..... on our date. Also we stay at the Grand Hotel in our - at that time, but you can see just here, he put a different address which we never been here or we do not know. Also he has given his own email address. So we assume if there is any correspondence with the department, that he will receive, not us. So then they ..... the visa ..... to him, then he can demand for money. So later we came to know from the workers, he did it to everyone - those who worked there. He has given his email address and some other - different address, and so those people, when they got the visa, it went to him. Then he made demand from those people to pay him more money to do the visa grant number.

So at that time, I asked ..... if he cheated us, what do we do? Then ..... told him that better - we like to take a picture with that. Then he agreed. That's what our photo, that we have attached as some evidence. The ..... actually, I do not want to cheat this government or this country or the people here because I don't want to apply for a protection visa. As I mentioned, that I did not have any issues in my country. I came here to study, and also I have to travel about 40 kilometres from my home - from the place to here. So my aim was to study and become a chef here, and to further - then after that to become a cleaner. That was my aim, and not to seeking asylum in this country.

So I got my Certificate 3, then after that I got my Certificate 4, but I could not complete the diploma because I got injured at my workplace, and I waiting for surgery now. Yes. Almost eight years now we are here, but I want to fulfil my desire as to become - to study and to become a chef in this country, so we need the opportunity to apply for the proper visa - what we came to this country, to apply for a student visa or any other kind of visas, but ..... not for protection. So the way that they - the visa was applied, and we are really suffering a lot now, and we are - we both are suffering almost every day. Because of that, we couldn't go back to our country, or we couldn't do anything.

Yes. Also ..... after you appeal to the AAT ..... to start to study, yes, that's true. Yes. The ..... because of that evidence, it's first time we got a notification from the Immigration that our biggest ..... So then one of my husband's friends recommended us to go and see ..... in Melbourne - that migration agent. So then we went and talked to him. He said that the Immigration has rejected our previous application ..... and now do not ..... exactly what we applied for at that time, and also that we were cheated by the agent. Then only they explain it to us everything. So then they said, "Yes, at the moment, you can't do anything because that - you were locked into this protection visa. That's why they have issued you this visa at the moment. The thing is, yes, you can appeal to the AAT, then you can start to - start for your studies".

After that, ..... we have ..... with my certificate - everything translated, and then we went into a school in Melbourne, then start to study there. So honestly I'm telling you the truth today as I ..... information. The reason that we came to this country, not to seek protection, but we came here to study and to work here. So that was our .....refuse that when they refuse ..... also we were very upset about it because it means we did not apply for that. So we are seeking some justice from this court today.

...

[in cross-examination]

The thing is just at the beginning, when we came to this country, we didn't know much about this country or anything. Even - we didn't have the knowledge, but we have now. When we met the Malaysian workers in the 15 hotel where did we stay, they all said that they can work and they can study, or whatever they want to do in this country. That visa, he is the one helps me to get it.

But even not aware, that he did every - everyone to get the protection visa. But even those people were not really aware they pay for the protection visa. Only thing - later on they say they can able to work in this country and earn money. That's what 20 they need. So they didn't bother about even in which visa they are living in this country. So we came to know a little later on all these things. So afterwards when they spoke to the ..... agent in Melbourne, then when I start to do my studies only, I came to know what type of visa was available in this country and what other procedures and how can we apply for those things. I got quite - all the knowledge 25 after I start to study in this country.

[Minister's Counsel]: And when did you first start studying in Australia?

[Second Appellant]: In 20115 - sorry, 2016.

[Minister's Counsel]: And was that before the delegate refused your visa?

[Second Appellant]: No, because after we got the negative decision from the department only, we went and met the ..... They only advised us, "You have to appeal to the tribunal as soon as possible, then your visa will be valid, then you can enter this visa condition, yes you can study - you can start study". Then only after that - after their advice, I felt sure that I ..... and we - I joined the class to study. Yes. The thing is - just when we - the first agent, when he applied for - asked us to sign these signs and everything, then he said, "For six months, you can't study or do anything, but after six months I will change your visa, then you can continue your studies". So I believed him, so that's what I was waiting for, for six months. So after I came to know - when we went to the Immigration Department to make a complaint, only I mentioned that - everything.

...

The reason that he came to - the second time to see us, he said he already got our visa grant number, and we initially paid him only $300 deposit, so he came - he came to collect the balance money, so we said we can pay only $1000 at that time. So the third time when he came to our place - to the Grand Hotel to collect the balance money because he initially said the total cost is $3000 - we paid only $1300, so he came to collect the balance amount. Then I told him, "No, I'm not going to pay you the balance because you promised us earlier, in six months' time you will change the visa to another so that we ..... thing. I'm simply ..... I'm not going to pay you any more money". So after we got rejection letter from the Immigration Department, we came to know that he tried to cheat us and take the money from us. Then we tried to call him, but he never answered - we couldn't see him after that. And also we then discussed with the other Malaysian workers - they also said that they also tried to talk to him or keep in contact with him, but they didn't know where he was.

1. After the conclusion of the hearing, the Appellants took up the opportunity to put on further written submissions, after a copy of the transcript was made available to them. Their written submission was dated 4 January 2023, and included the following (emphasis added):
   1. The Applicants went to Melbourne and meet Roslan (visa agent) in Hungry Jack Southern cross station Melbourne. And the agent came with some forms to sign up.
   2. Between the conversations second applicant asked the agent about what type of visa this before signing the forms. And the agent answered to second applicants that this the visa you need apply if you want stayed legally in Australia and it's called bridging visa.
   3. The second applicant also asked about student visa and the agent told her, she could apply for student visa after 6 months of this visa application and they should get this Bridging visa before the tourist visa expired.
   4. While signing the forms, The Second Applicant was asked the agent why the form title with Protection Visa and the agent answered it is kind of Bridging visa for stayed legally in Australia.
   5. The Applicants trusted the agent and signed the forms.
2. Under the heading "Additional matter to take into consideration", the submission stated (emphasis added):
   1. The applicants do not have knowledge about any Australia visas previously.
   2. That the reason the applicants not aware about the visa they applied for is a Protection visa.
   3. After second applicant starts her studies in Melbourne, she learns and improves her knowledge about Australia visas.
   4. If the applicant has knowledge about Australian Visa they not definitely apply for Protection Visa.
   5. If the applicants really want a Protection visa, why she spend 8 hours to travelling to Melbourne for studies and spend their money for pay the fees of studies.
   6. The only purpose of the applicant come to Australia is for studies, work and look for a good future.
   7. As per unregistered agent mention, the applicant only known that they applied for sort of visa to stayed legally in Australia.
3. The "Conclusion" section of the Appellants' submission stated, amongst other things, that "[t]he applicants never intended to mislead the Department, they unaware of what visa subclass lodged by unregistered agent" (emphasis added).
4. The Minister responded to these submissions by further submissions dated 23 January 2023. The position taken by the Minister was that:

(1) The highest the Appellants could put their case is that they were not consulted about the type of visa application that was being lodged on their behalf by "'Roslyn'".

(2) Even if the Appellants established fraud, they had sufficient knowledge or awareness of the visa process, and the alleged dishonest conduct of their agent, that they should bear responsibility for that conduct.

(3) The Appellants were aware that the visa for which they were applying was a protection visa "as the form stated 'protection visa' at the top" (emphasis in original). The Appellants were also aware, when signing the form "that 'this is not the student visa and ... work visa'" and that "'after six months' the agent would 'make a change' for the applicants to apply for a student and work visa" (emphasis in original) (the Minister here cited the transcript of the hearing before the primary judge).

1. The final round of submissions was the Appellants' written submissions dated 27 January 2023. Those submissions included the following (emphasis added):
   1. On hearing 02 December 2022, The Applicants clearly gave oral evidence how they having been 'fraud' by the agent.
   2. The Applicants does not collaborate with unregistered agent to make any fraud for applying visa.
   3. The Applicants clearly mentioned on hearing 02 December 2022, that they not filled the application visa.
   4. First Respondent defines in (paragraph 17) The Applicants aware that the visa for which they were applying.
   5. If The Applicants aware that the visa they were applying for, why The Applicants still looking for solutions on this matter and also refused that they really don't need Protection Visa.

...

1. First Respondent defines in (Paragraph 22) that The Applicants as degree of knowledge the visa the lodged on their behalf.
   1. The Applicants as not have knowledge about Australian visa until the second applicant precede her studies in Melbourne.
   2. If The Applicants have knowledge about what visa they applying for, why they apply for Protection Visa instead of student and working visa. .
   3. The Applicants does not have any purpose for applying Protection Visa.
   4. The agent never explained or gives details to The Applicants what visa they were applying for rather than he said it is Bridging Visa for stayed legally in Australia.

1. Under the heading "Conclusion", the submission stated, amongst other things: "The Applicants say this most solemnly that they not aware the visa they applied for is a Protection Visa".
2. While the submissions and evidence before the primary judge have been set out at length, the critical point may be quickly disposed of. Having reviewed the record before the primary judge, I do not accept the Appellants' submission that they advanced a case of fraud on the basis that they were misled into thinking that they were applying for a protection visa that could be converted in six months into a student visa - the convertibility contention. While the Appellants' oral evidence did state that they were told that the visa they were applying for could be modified or converted in six months, their written submissions were also replete with continued claims that they did not know they were applying for a protection visa. I do not accept the Appellants' submission that these statements can be reconciled with the position put on the appeal on the basis that what the Appellants were saying, in saying that they did not know that they were applying for a protection visa, was really that they did not know they were applying for a protection visa simpliciter, but thought they were applying for a form of convertible or modifiable protection visa.
3. It was pointed out in oral submissions, correctly, that the primary judge sought to distil from the Appellants' case the forms of fraud they were articulating. As set out above, the primary judge identified three ways in which the fraud contention was apparently being put: at J [66]. The second of those was that Roslyn had lodged an application for a protection visa without their consent. In view of the foregoing matters, I do not accept that the primary judge mischaracterised the Appellants' position in this regard, or overlooked another form of fraud that formed part of their case. The point is not that counsel, viewing the record, can discern another potential kind of fraud that could be said to be supported by the evidence of the Appellants about what Roslyn said about converting the visa after six months. The point is that the record before the primary judge did not point to the fraud that the Appellants now rely on.
4. The evidence given about what Roslyn said about converting the visa could fairly be understood as evidence advanced on the basis that it was exculpatory (because it explained why the Appellants were prepared to go along with the submission of an application for a protection visa when they did not have claims for protection). That appears to be how the primary judge regarded that evidence. The primary judge said (at J [78] (emphasis added)):

There is no evidence that after noticing that the application was for a protection visa and asking Roslyn about it, the applicants asked Roslyn not to make the application. On the contrary, the applicants proceeded to sign the forms and trusted Roslyn to proceed to lodge the protection visa application. Even if the applicants understood that they would be able to change the visa to a student visa at a later date, I find that they still understood that the visa application they were making in or around September 2015 was for a protection visa.

The appeal would not fail on the basis that the fraud was incapable of resulting in declaratory relief

1. It is clear from the authorities that a third party fraud can have the result that no valid application for a visa was ever made, and thus s 48 of the Act will not operate. The effect of s 48 is to prevent a non-citizen in the migration zone (as defined by the Act) who holds no substantive visa and has had a visa refused, or a visa cancelled, from making any further valid visa application, except for visa classes prescribed by regulation.
2. In SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (SZFDE), an agent perpetrated a fraud on the applicants, telling them not to appear at the Tribunal hearing to which they had been invited. The High Court focused on the role and significance of s 425 of the Act, which provides for an opportunity for an applicant to appear before the Tribunal: at [31]-[32] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ). The agent's fraud subverted the observance, by the Tribunal, of its obligation to accord procedural fairness: at [32]. The High Court considered that the fraud of the agent in telling the family not to appear at the Tribunal hearing, which "had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice" to the applicants (at [49]), was not only a fraud perpetrated on the applicants, but also a fraud perpetrated on the Tribunal because it was disabled from the due discharge of its statutory functions with respect to the review: at [50]-[52].
3. The High Court, in SZFDE, also noted that the reasons of French J, in the Full Court decision in the same matter (Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365), identified "sound reasons of policy why a person whose conduct before [the Tribunal] has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made": at [53]. That circumstance may be contrasted with the facts in SZFDE whereby the fraud compromised the Tribunal's discharge of its statutory function. In Minister for Home Affairs v DUA16 [2020] FCA 46; (2020) 271 CLR 550 (DUA16), the High Court explained SZFDE on the basis that some aspect of the operation of the legislative scheme must be affected by actual fraud or dishonesty, not merely negligence, there being reasons of policy why an administrative decision "is not vitiated merely by bad or negligent advice or some other mishap": at [15] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). In DUA16, the High Court accepted a submission that "fraud must affect a particular duty, function, or power" of the decision-maker, and that it was not enough to assert that fraud "might be said to affect the process of decision-making in some abstract sense": at [18].
4. Other cases likewise make it clear that it is not sufficient to identify some fraud somewhere in the application or hearing process. Rather, the fraud must be one that compromises the processes in question, or otherwise compromises the proper operation of the Act. This has been expressed in different ways in the various cases, but the underlying point remains the same. In Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143, Mortimer and Charlesworth JJ said that the ultimate issue is the effect of third party fraud "on the administrative decision making process": at [45], citing SZFDE at [47].
5. In Singh, the Full Court observed that the agent's conduct must not only be a fraud on the visa applicant but must also "stultify one or more aspects of the relevant statutory decision-making processes" under the Act: at [52] (Kenny, Griffiths and Mortimer JJ); see also Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; (2019) 269 FCR 464 (Kaur) at [53] (Murphy, Mortimer and O'Callaghan JJ).
6. In Maharjan, Gilmour and Mortimer JJ said that it is not enough to prove fraud on the visa applicant. Rather, it must be shown that the fraud worked on the administrative decision-maker "in the sense of the fraud affecting that decision-maker's statutory functions and obligations or adversely affecting, disabling or stultifying the processes which the Act prescribes": at [103], citing SZFDE.
7. It is clear from Singh and Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 (Gill) that there can be a fraud attracting the jurisdiction to grant declaratory relief to the effect that no valid application was made where what is compromised is the scheme of the Act in connection with the potential future application and operation of s 48.
8. In Singh, the issue was whether the Federal Circuit Court of Australia (FCCA) should have considered whether the relevant fraud meant that declaratory relief should have been granted, whereas the FCCA considered that it had no jurisdiction on the basis that the relief sought would be futile. At [51], the Full Court said that the issue of the operation of s 48 "where it is claimed that there has been fraud by a third party on a visa applicant, which fraud has affected the decision-making process in relation to that visa application, is a matter of real interest to [the applicant and the Minister]". The Full Court observed that whether the court will grant declaratory relief will depend on many factors, including "whether that fraud has also stultified some relevant aspect of the decision-making process in relation to the consideration of the visa application": at [52].
9. Similarly, in Gill, the Full Court accepted that provisions such as ss 45-48 and 98 of the Act "can be affected by fraudulent conduct of a migration agent in circumstances where the visa applicant has not colluded in that fraud and there is no evidence to support a finding that the via applicant was indifferent as to whether the agent used unlawful or dishonest means": at [50] (Kenny, Griffiths and Mortimer JJ).
10. In Maharjan, Gilmour and Mortimer JJ rejected the suggestion that there was anything inappropriate with a visa applicant seeking declaratory relief based on a fraud in order to avoid the operation of s 48: at [67]. Their Honours observed that the concept of "a valid visa application is a central underpinning concept in the structure of" the Act: at [67]; see also at [104]-[105].
11. It is clear on the authorities that the visa applicant has the onus of establishing the fraud and that he or she was not complicit in, or indifferent to, that fraud. The burden is a heavy one: Kaur at [56]; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [51] (Allsop CJ, Mortimer J agreeing), citing SZFDE and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501.
12. If I had been satisfied that the Appellants had advanced a case to the primary judge that the fraud lay in Roslyn informing them that they were applying for a visa that could be converted in six months, I would not refuse relief on the basis that the fraud was incapable of resulting in declaratory relief following the principles identified in the cases above. Were the matter to have been remitted, the nature of the fraud perpetrated would have to be examined by reference to these principles. It follows that I do not accept the Minister's submission that these principles are inapplicable because the fraud related to the future conversion, in six months' time, of the visa and Roslyn's failure to secure that outcome. Rather, the asserted fraud is that the Appellants were misled as to the nature of the visa for which they were applying.

1. As I have found that the Appellants did not advance the fraud contention on which they now rely before the FCFCoA, the appeal will be dismissed, with costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button.