BOI21 v Minister for Immigration and Citizenship

1. This case involves allegations of fraud on the Administrative Appeals Tribunal. Mr BOI21, the applicant, says a fraud perpetrated by his representative effectively stultified the Tribunal's review. He says the Court should send the matter back to the Tribunal so he might properly argue his case. I agree, for reasons I shall explain.

1. The following account is principally drawn from Mr BOI21's affidavit affirmed on 27 June 2025 (exhibit 4) although I have also referred to the contents of an earlier affidavit affirmed on 20 September 2021 (exhibit 3). The minister (the first respondent in these proceedings) did not seek to examine Mr BOI21 and did not offer any evidence that contradicted his account.
2. Mr BOI21 is a citizen of China. Shortly after he arrived in this country, he applied for a Protection (Class XA) (Subclass 866) visa with the assistance of a representative that claimed to be a migration agent. The representative had been introduced to him by someone who befriended him upon his arrival in this country. It turns out the migration firm was unregistered. Mr BOI21 says he did not know that at the time. He relied on the endorsement of his new-found friend and the fact the firm advertised itself in Mandarin as a migration agent. (The applicant did not speak English and says he was otherwise unfamiliar with the visa application process.) Mr BOI21 paid the fees demanded of him and outlined the gist of his claims to the female office worker he dealt with at the firm. Mr BOI21 also gave the firm his Chinese mobile phone number which was connected to his WeChat messaging application. He said he did not receive a receipt, and I infer he was not provided with any sort of retainer agreement that recorded the terms of the engagement. He said he was told to await the outcome of the visa application that would be lodged with the minister's department on his behalf. Mr BOI21 said he thereafter focused on finding work on the strength of assurances that he would be contacted with news in due course.
3. The application for a protection visa was lodged on 21 July 2017. A copy of that application is reproduced in the court book (exhibit 1) at pp 1ff. While the application form included a residential address for Mr BOI21, the form also said the principal of the migration firm was the authorised recipient of communications in connection with the application. (The applicant said he does not know if he dealt with the principal; he dealt only with a female officer worker on the one occasion he visited the firm's office.) A form 956A that nominated the principal as authorised recipient is reproduced in the court book at pp 27ff.
4. A notice was sent to the authorised representative inviting the applicant to attend an interview conducted by the delegate on 7 November 2017. The applicant says he was never told about the notice, and he did not attend the interview (nor did he attend an interview rescheduled for a different date).
5. A delegate of the minister subsequently refused the application for a protection visa. The delegate's decision is reproduced at pp 60ff of the court book. The decision notification was sent to the email address of the authorised recipient. In the attached statement of reasons, the delegate noted the applicant failed to attend the interview. The delegate explained she was not satisfied on the material before her that the applicant was owed protection obligations.
6. Review proceedings were commenced in the Tribunal on 3 December 2017. A copy of the application form is reproduced in the court book at pp 73ff. The form recorded it was lodged through the Tribunal's online portal. The form again indicated the principal of the migration firm was the authorised representative of the applicant.
7. The circumstances in which this application came to be lodged are something of a mystery. Mr BOI21 addressed those circumstances directly in his earlier affidavit (exhibit 3). He said:
   1. I was not notified by Mr Zuo [the principal of the firm] that he filed a merits review application with the Administrative Appeals Tribunal noting him as an authorised recipient of all correspondences from the Tribunal.
   2. I did not sign any documents to authorise Mr Zuo to file a merits review application with the Administrative Appeals Tribunal, and I do not recall paying any fees for the merits review application before and after the merits application was dismissed.
8. This evidence was uncontested, and there is no reason to reject the substance - although there are some anomalies. One anomaly relates to the reference to 'Mr Zuo' when other evidence suggests the principal of the firm was a female. It is unnecessary for present purposes to resolve that anomaly. The evidence does not directly establish it was the principal of the migration firm (whether male or female) who filed the application for review (as opposed to someone else) but I infer that is what occurred given the principal was identified as the authorised recipient. (It is unlikely that a stranger would have filed the application that nominated the representative.) I note the acknowledgment of the application form was sent to the principal at the firm's email address: court book at p 76. If the principal had not filed the application, he would surely have replied to the email in those terms.
9. I note the acknowledgment email includes an information sheet which instructs the applicant to inform the Tribunal if their contact details change.
10. Mr Reilly, who appeared for the minister, acknowledged at the hearing that it was not necessary to pay an application fee to the Tribunal in connection with the review during this period. That concession confirms the person who filed the application could do so without cost.
11. Mr BOI21 said in his affidavit (exhibit 4) he moved from Sydney to Western Australia in April 2018. He recalled contacting the firm in September 2019 on its WeChat number. He recalled that he "spoke to a man" on that occasion but it is not clear that anything of substance was discussed.
12. Mr BOI21 said (in exhibit 3) he remained unaware of the Tribunal's review even as the Tribunal issued an invitation to attend a hearing listed for 20 April 2021. The invitation was sent to the authorised representative, but it seems the invitation was not passed on to the applicant. When Mr BOI21 did not appear at the scheduled hearing, the Tribunal dismissed the proceedings under s 426A(1A)(b) of the Migration Act 1958 (Cth) without further considering the application. That decision was affirmed on 5 May 2021 in the absence of an application for reinstatement.
13. Mr BOI21 said he only learned of the Tribunal proceedings after they concluded. He promptly lodged an application for judicial review. (The application was filed late so an extension of time was required pursuant to s 477(2) of the Act. An extension of time order was made at the hearing with the minister's consent.)

1. The Australian Border Force commenced an investigation focusing on migration fraud in 2018 to 2019. That investigation - referred to as 'Operation BlueNickel' - focused on the activities of migration agents who were facilitating improper behaviour. That sort of investigation is to be welcomed: migration agents are the gatekeepers of our migration system. The efficiency of the migration system depends on agents providing efficient, competent and timely assistance - and upon them acting with integrity. The migration system will be compromised if decision-makers cannot rely on the integrity of agents. That is why there is a system of occupational regulation that is now administered by the Office of the Migration Agents Registration Authority. The regulatory regime contained in Part 3 of the Act includes a requirement that an agent be a fit and proper person. It also includes a code of professional conduct that provides a basis for disciplinary action. The regulatory system will not work if the authorities do not root out individuals who make a practice of supplying migration assistance for rewards without being registered.
2. Ms Zuo, the principal of the firm purporting to represent Mr BOI21 and at least one of her staff, Ms Fu, were swept up in the Operation BlueNickel investigation. The information generated by the investigation was subsequently obtained by Mr BOI21's lawyers in these proceedings under subpoena. There is an agreed statement of facts prepared by the Office of the Commonwealth Director of Public Prosecutions and several statements from witnesses that spoke about Ms Zuo charging a fee for preparing and lodging visa applications while unregistered. A record of interview with Ms Zuo suggests the firm was processing a very large number of visa applications. The material provided under subpoena confirms Ms Zuo and Ms Fu were each convicted on 17 December 2019 on charges of giving migration assistance without being registered and accepting payment for those services.
3. The individual Mr BOI21 dealt with at the firm has since disappeared. Mr BOI21 was also unable to locate Ms Zuo so she might be called to give evidence in these proceedings. A process server and a private investigator retained by Mr BOI21's solicitor provided affidavits (exhibits 6 and 7 respectively) confirming the unsuccessful attempts made to identify and locate Ms Zuo.
4. This evidence points to a potential problem for the applicant: while Ms Zuo and her firm were plainly still carrying on their (unregistered) business in December 2017 when the application for review was filed in the Tribunal, it is not clear when that business ceased trading as a consequence of the prosecutions arising out of Operation BlueNickel in December 2019. There is evidence from Mr BOI21 in exhibit 3 at [8] that the business was still responding to calls in September 2019, but there is nothing to hand which confirms Ms Zuo's firm was thereafter continuing to respond to emails or deal with matters arising out of (for example) applications it had already filed in the Tribunal, whether authorised or not. There is a real possibility that the business was defunct by the time the Tribunal's hearing invitation was issued in 2021.
5. Mr Vuu, counsel for Mr BOI21, suggested the minister could not criticise the applicant for any gap in the evidence left by the unavailability of witnesses given the minister likely had the means to identify their whereabouts and obtain evidence. Mr Reilly, counsel for the minister, confirmed the minister had no further information about the potential witnesses apart from the material that had already been disclosed as a result of Operation BlueNickel. Mr Reilly said there was no basis for supposing the minister could have provided anything further: the principal of the migration firm and her assistant were not registered so they had not come to the minister's attention prior to the investigation in 2018.

1. The further amended application for judicial review identified a single ground. That ground contends the Tribunal's review was vitiated as a result of the fraud committed on the Tribunal - and on Mr BOI21 - by the firm that represented Mr BOI21. I gave leave to the applicant to rely on the further amended ground. The minister properly consented to that course.
2. The minister argues Mr BOI21 bears the onus of establishing there was a fraud on the Tribunal which 'stultified' the operation of the legislative scheme or caused the Tribunal to be "disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review": see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. In that case, the Court dealt with a migration agent who - contrary to his representations - was unregistered. But the agent's conduct went beyond misrepresenting his status to the applicants. The agent also advised his visa-applicant clients to ignore a hearing invitation and skip the hearing because: "It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment." The Court made clear it was not enough to establish that the person claiming to be an agent engaged in fraudulent dealings with the applicants: at [51]. There needed to be a fraud on the Tribunal as well, and the fraud must have disrupted the Tribunal's review process in some direct way. The Court referred to the importance of the requirement in s 425 of the Act that the Tribunal invite the applicant to appear at a hearing (at [31]). A fraud that came between the applicant and their hearing rights was therefore especially problematic. That is what happened in SZFDE. The joint judgment explained (at [32]):

An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.

1. The Court went on to explain that cases of fraud were to be distinguished from other regrettable conduct of a representative that fell short of fraud - like negligence - which impacted on the applicant's participation in the hearing. At [53], the Court endorsed the view that:

...there are sound reasons of policy why a person whose conduct before an administrative 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.

1. In written submissions, Mr Reilly, counsel for the minister, referred me to other useful authorities including Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17. In DUA16, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ reflected on the reasons in SFZDE, and observed (at [15]):

The insistence by this Court in SZFDE that a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Tribunal, was appropriate because grounds of judicial review arise by implication from the statute which provides the jurisdiction to make the decision. Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently, so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. [Citations omitted]

1. In SZLIX, the Full Court emphasised there must be evidence of fraud, not just a suspicion of fraudulent behaviour. While the Court in that case acknowledged (at [19]) SZFDE had said a finding of fraud may be made by inference from the evidence, Tamberlin, Finn and Dowsett JJ emphasised there must actually be evidence and the inference of fraud must be open and tend to that conclusion: at [32]. The Full Court went on to explain (at [33]):

...an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant's absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.

1. The Full Court also referred to the High Court's decision in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; where Dixon J explained (at p 362):

...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

Was there a fraud on the Tribunal in this case that stultified the Tribunal's review process?

1. When someone - I infer it was the representative - lodged an application for review with the Tribunal without informing the applicant, they were misrepresenting their authority to do so. The uncontradicted evidence of the applicant is that he did not authorise the agent or anyone else to commence Tribunal proceedings - most obviously because he was not aware it was necessary or appropriate to do so as he was unaware of the delegate's decision. Ms Zuo must have known that commencing proceedings without reference to a client was wrong. In commencing the proceedings, she was making a fraudulent representation to the Tribunal. That representation is there for all to see in the application form where Ms Zuo claimed to be an authorised representative. It is unlikely she was acting out of a misguided sense of duty to her uncontactable client. Mr BOI21's evidence established the application lodged on his behalf was not thorough. He said he offered to provide extra information in support of his application when he visited the office of the firm because he thought it might be helpful, but he was told not to worry: exhibit 4 at [35]. The evidence contained in the Department of Home Affairs' record of interview where Ms Zuo discussed preparing multiple applications each day suggests the slapdash approach to Mr BOI21's visa application was business as usual. That evidence of unprofessional conduct is not consistent with the suggestion Ms Zuo commenced the review out of a zealous desire to preserve her client's appeal rights.
2. I will come back to what I infer was Ms Zuo's unauthorised commencement of the proceedings. I want to deal with the applicant's argument that Ms Zuo's subsequent failure to pass on the hearing invitation was motivated by a desire to avoid drawing attention to her business model of lodging threadbare or even bogus visa applications on behalf of vulnerable individuals. That argument is important because if it is made out it would point to the representative's fraud directly impacting on the Tribunal's decision-making process in the sense discussed in SZFDE and SZLIX.
3. Mr Reilly responded to the argument with an appeal to the reasoning in Briginshaw. He said one could not reliably assume fraud in the absence of direct evidence when there were plausible alternative explanations for the conduct. To illustrate the point, he speculated the firm may have failed to pass on the hearing invitation because it was negligent or disorganised. (That would not be out of the question given the approach to business I have already described.) Mr Reilly also surmised it was possible the firm had lost Mr BOI21's contact details and what followed was the product of an unfortunate breakdown in communications.
4. Mr Vuu said the fact Ms Zuo filed an unauthorised application for review and was criminally prosecuted clearly pointed to a more sinister explanation. I was invited to infer Ms Zuo refrained from notifying the applicant of the hearing invitation because she wanted to put off the awful day of reckoning for her own unlawful conduct. Viewed in that way, the failure to pass on the hearing invitation was part and parcel of the larger fraudulent scheme which involved giving migration advice for reward without being registered.
5. The problem with Mr Vuu's submission is that the awful day of reckoning for Ms Zuo had already come and gone by the time the hearing invitation was issued in 2021. Ms Zuo and her assistant had been convicted in late 2019. It seems likely their operation came to a halt by that point. That means their failure to pass on a notice in 2021 might be attributable to organisational collapse rather than a fraudulent desire to cover up an unlawful business which had already been revealed (to the authorities at least). In those circumstances, I do not think I can safely find Ms Zuo and her confreres fraudulently withheld the hearing invitation from the applicant when it was received in 2021. By that point, the game was up and there was a real possibility they had abandoned the business and its email inboxes to which the Tribunal's notices were being directed.
6. That brings me back to the unauthorised commencement of the Tribunal proceedings in 2019. I have already made clear I am satisfied whoever filed the application for review misrepresented Ms Zuo's status as a nominated representative, and I infer that misrepresentation was made by or at the direction of Ms Zuo or a member of her firm. The question is whether that act of itself was enough to defraud the Tribunal in the exercise of its statutory powers.
7. I am satisfied the fraud involved in commencing the proceedings in the circumstances of this case is enough of itself to disrupt the Tribunal's review and prevent it from discharging its statutory function. The Tribunal's review process was apparently engaged by someone who did not have standing to commence the review. That person also falsely claimed they were the authorised recipient of communications. Whether their subsequent mishandling of those communications was attributable to malice, avarice, incapacity, absence or incompetence, they had prevented the applicant from participating in the statutory review because that fraudulent statement was made at the outset and the applicant was never informed. That behaviour compounded the antecedent failure to alert Mr BOI21 to the rejection of the application by the delegate.
8. The representative's fraudulent behaviour vis-à-vis the applicant might have been remediated if the representative had subsequently contacted the applicant to reveal what she had done. There is no evidence of that occurring which means the fraud had an enduring consequence for the applicant. The fraud on the Tribunal caused it to misapprehend who it was dealing with. That misrepresentation subverted the Tribunal's hearing process and the carefully constructed provisions which allow the Tribunal to make assumptions about the receipt of information and notices by an applicant when they are provided to an authorised recipient. The applicant was cheated of his rights, but the Tribunal was also effectively robbed of its statutory role with respect to that applicant. That cannot stand.

1. I am satisfied the Tribunal's review was stultified as a consequence of fraud on the Tribunal. That amounts to jurisdictional error. I am satisfied that was a material jurisdictional error and that it is appropriate to exercise the discretion to issue a writ of certiorari quashing the decision of the Tribunal and an order of mandamus directed to the Administrative Review Tribunal requiring it to reconsider the decision according to law.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.