BZU24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1723

1. The applicants are citizens of Fiji who applied for protection visas in Australia. The first applicant is the mother of the second and third applicants. A delegate of the Minister refused to grant the applicants protection visas and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision on 14 March 2024. The applicants seek judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
2. The applicants raise a sole ground asserting that the Tribunal made a jurisdictional error because it failed in its duty to properly inquire after the first applicant admitted to never reading or signing the protection visa application.
3. For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error. Their application for judicial review must therefore be dismissed.

1. On 18 October 2022 the applicants applied for protections visas. In the protection visa application form, only the first applicant advanced claims for protection. She claimed that she left Fiji due to her opinion of the government and in search of better economic stability, freedom of speech and expression. She claimed she had suicidal thoughts raising two children with an income of $240 per fortnight.
2. A delegate of the Minister refused to grant the applicants protection visas on 15 September 2023.
3. On 11 October 2023 the applicants applied to the Tribunal for merits review of the delegate's decision.
4. The first applicant sent an email to the Tribunal on 18 February 2024. This email attached a letter from the first applicant titled 'Letter of forgiveness to the immigration' and letters of support from the second and third applicants' school, the first applicant's employer and the applicants' church. In the letter of forgiveness, the first applicant asked for forgiveness and understanding for the situation of her family and claimed that they came to Australia to build better lives for themselves and so that the child applicants could receive a better education. She said that she 'paid a lady to do [their] papers' and their house in Fiji was damaged in a cyclone in 2016. She said that life will be difficult in Fiji because they do not have a house to return to and it is very hard to find work in Fiji.
5. The first applicant attended a hearing before the Tribunal to give evidence and present arguments in relation to her claims for protection on 8 March 2024.
6. On 14 March 2024 the Tribunal affirmed the delegate's decision not to grant the applicants protections visas.

1. At the hearing, the Tribunal referred the first applicant to the information in her protection visa application about the reasons she left Fiji and the harm she fears. The Tribunal recorded that it asked the first applicant if those were her claims. She responded in the negative and said that the only reason she and her daughters came to Australia was to be with her husband, who was already here.
2. The Tribunal accepted that the applicants' claims in their protection visa application did not relate to their circumstances in Fiji and that they did not depart Fiji for the reasons claimed in their application.
3. The Tribunal considered the first applicant's education, employment history in Fiji and Australia, and her family's particular circumstances in the context of country information available to the Tribunal. The Tribunal was not satisfied that the first applicant would be unable to obtain accommodation or employment, or would be denied access to housing or employment, or that there was a real chance that she would be denied the capacity to earn a livelihood or that her capacity to subsist would be threatened if she returned to Fiji.
4. The Tribunal had regard to the applicants' desire for the children to be educated in Australia but considered the children would have good access to education in Fiji. The Tribunal did not accept that there was a real chance the applicants would face harm for this reason if returned to Fiji.
5. The Tribunal considered information about healthcare in Fiji and was not satisfied that there was a real chance the applicants would suffer serious harm in relation to healthcare or be denied access to healthcare for any reason if they were to return to Fiji.
6. The Tribunal was not satisfied that the applicants met the requirements for the grant of a protection visa in s 36 of the Migration Act.

1. The applicants' application for judicial review was filed on 17 April 2024. It was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
2. The applicants rely on an amended application filed on 27 February 2025, which raises the following ground (footnotes omitted):

The Second Respondent, failed in its duty to properly inquire into the Applicant's review application, after her admission of never reading nor signing the application; giving rise to jurisdictional error by constructive failure to exercise jurisdiction.

1. In para 29 of the Decision Record, it records as follows:

"When asked is she was made aware of what was in the protection visa application, the applicant responded in the negative and confirmed that she never read nor signed the application." (emphasis mine)

1. The Second Respondent omits and fails to acknowledge the enormity of the applicant's admission, that she never read nor signed her protection visa application, which purportedly has her name and signature and the subject of the merits review before the Tribunal.
2. The applicant admitted, she sought the assistance of a Fijian lady, who for a fee agreed to assist them with their protection visa applications. The applicant provided the Fijian lady with their passports, as requested and that was the extent of their dealings, when they received notification of the refusal of their protection visa applications.
3. The Second Respondent failed to inquire about their protection visa applications, especially around the issue of what was agreed between them, did they provide any grounds or did the Fijian lady make up these grounds, were they expecting to review their application before it was lodged and were they expected to sign off on their applications, etc.
4. These inquiries are obvious and vital to the Second Respondent, to properly ascertain how the protection visa application was prepared, what did they agree upon, were the applicant expecting to review their application before it was lodged and were they expecting to sign the same, etc.
5. The Second Respondent failed in its duty to inquire from the applicant, nor did it address this vital issue in its Decision Record, implying the Second Respondent unequivocally accepted her admission without question; therefore, the protection visa application for review before the Tribunal (Case No: 2316288) which has their names, contains her forged signature, which she didn't consent to or authorise and rightfully doesn't belong to her.

7. Wilcox J in Prasad explained this duty to inquire as follows:

"Where it is obvious that materially is readily available which is centrally relevant to the decision to be made...to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

1. In SZIAI, the majority held, with regards to jurisdictional error:

"Although decision in the Federal Court concerned with a failure to make obvious inquires led to references to a 'duty to inquire', that term is appt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error....It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction."

1. I respectfully submit, the Second Respondent, clearly failed to make an obvious inquiry, regarding the applicant's admission, that she "never read nor signed the application" and it was an failure "to an obvious inquiry about a critical fact, the existence of which is easily ascertained...such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction", which it did in this case.
2. I respectfully submit, the failure by the Second Respondent to make this obvious inquiry, gives rise to jurisdictional error by constructive failure to exercise jurisdiction, as stated in SZIAI above.

1. The only evidence before the Court is the court book filed on behalf of the Minister.

1. The sole ground of application is similar to ground 1 of the first applicant's husband's judicial review application, which I considered in BWS24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1722 (BWS24). Although Counsel for the applicants submitted that this matter is very different from BWS24, the main difference highlighted in the submissions appears to relate to the suggested application of s 98 of the Migration Act. I consider that specific issue below, but otherwise observe that there is a significant overlap in the reasons for judgment in both cases in relation to this ground, due to the similarity of the issues raised.

1. There is no dispute between the parties that the Tribunal may make a jurisdictional error if it fails to make an obvious inquiry about the existence of a critical fact the existence of which is readily ascertained.
2. The main cases referred to by the parties are Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 (SZIAI) and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (Prasad).
3. In Prasad, Wilcox J said at 169-170:

The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

1. In SZIAI, the High Court said at [25] (emphasis added, footnote omitted):

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.

The Tribunal did not make any jurisdictional error in the present case by failing to inquire about the preparation of the applicants' protection visa application

1. I do not accept that there was an obvious inquiry about a critical fact relevant to the Tribunal's task that the Tribunal was required to make in the present case. As was the case in BWS24, there are two key reasons for this. First, the Tribunal gave the first applicant an opportunity to make submissions about the preparation of the applicants' protection visa application. Second, the type of further information in relation to which the applicants say the Tribunal should have inquired was not centrally relevant to the Tribunal's decision.

The first applicant's opportunity to discuss the preparation of her protection visa application

1. As with BSW24, there is no transcript of the Tribunal hearing in evidence before the Court. However, it appears from the Tribunal's reasons that the Tribunal afforded the first applicant an opportunity to discuss the claims in her protection visa application and, in so doing, invited her to discuss the circumstances in which the protection visa application was made.
2. The Tribunal addressed the protection visa application form at [29]-[35] of its reasons. In these paragraphs, the Tribunal said:
   1. At the hearing, the applicant was asked about whether she received any assistance in lodging her and her daughters' protection visa application. The applicant stated that a lady, whom she knew from Fiji, assisted her. She explained that the lady told them that it will cost them AUD300 per person and all she had to do was to provide the lady with their passports. When asked if she gave the lady any other details about her circumstances, the applicant responded in the negative. When asked if she was made aware of what was in the protection visa application, the applicant responded in the negative and confirmed that she never read nor signed the application.
   2. I referred to the information in the protection visa application which indicates that the reasons the applicant departed Fiji were 'opinion of government'; in search of 'better economic stability'; 'freedom of speech and expression' and having suicidal thoughts as she found raising two children on an income of $240.00 difficult and that she suffered from mental stress and depression. I asked if those were her claims, the applicant responded in the negative and said that the only reason she came to Australia with her daughters was to be with her husband.
   3. I noted the applicant's evidence given earlier at the hearing, that neither she nor her daughters suffered from any medical conditions, and that after her husband's departure for Australia in 2019, she continued to work, her daughters were very happy at school, and that she managed to pay for all expenses and also obtained financial assistance from her husband when required. The applicant confirmed that was the case and that the information in the protection visa application that she suffered from suicidal thoughts, mental stress, and depression were not true.
   4. I further noted that the protection visa application refers to the applicant knowing what happened to people who spoke out against the government and that there was a government decree in place. The applicant reiterated that she was unaware of what was in the application.
   5. When asked if she received the delegate's decision refusing her and her children's protection visa application, the applicant stated that the lady told her that their applications were refused and that she would apply for review but required AUD300 per person to lodge the review. The applicant stated that they paid the lady a further AUD900. The applicant stated that after she received the hearing invitation from the Tribunal, she contacted the lady to get information, but she never returned the applicant's call. The applicant decided to write the letter she forwarded to the Tribunal before the hearing.
   6. The applicant presented her evidence set out above in a forthcoming and credible manner. I accept that the applicant paid a lady to make an application on her and her daughters' behalf and that she was not made aware of the type of visa, or the information included in the visa application. I accept that she was not provided with a copy of the protection visa application and was not involved in the process of lodging the review application with the Tribunal.
   7. I accept that the claims in the applicants' protection visa application do not relate to their circumstances in Fiji and that they did not depart Fiji for the reasons claimed in the protection visa application.
3. I accept the Minister's submission that the first applicant gave evidence to the Tribunal about how the applicants' protection visa application was prepared. This included evidence that the first applicant paid a Fijian lady $900 to prepare the protection visa application, she provided copies of the applicants' passports but did not provide further information, the first applicant did not read the protection visa application prior to it being lodged and that the claims in the protection visa application were not true.

There was no obvious inquiry to make about a fact critical to the Tribunal's task

1. The duty of the Tribunal in this case was to conduct a review of the delegate's decision not to grant the applicants a protection visa. In conducting the review, the Tribunal was required to form its own view as to whether the applicants met the requirements for the grant of a protection visa. This in turn required the Tribunal to understand and consider the claims for protection advanced by the applicants.
2. I accept the Minister's submission that, after accepting the first applicant's evidence that the claims in the protection visa application were not true, the Tribunal recorded the first applicant's claims made at the hearing. I accept the Minister's submission that the claims the first applicant raised at the hearing and in her letter of 18 February 2024 were comprehensively addressed in the Tribunal's reasons.
3. In his written submissions, the Minister questioned how the Tribunal's conduct of not inquiring into the specific circumstances submitted by the applicants gives rise to a constructive failure on the part of the Tribunal to exercise its jurisdiction, particularly in circumstances where the Tribunal accepted the first applicant's evidence about the preparation and lodgement of the protection visa application. I agree that the Tribunal did not constructively fail to exercise its jurisdiction by not making further inquiries about the preparation and lodgement of the protection visa application.
4. More detailed information about the matters referred to in the ground, including what was agreed between the first applicant and the Fijian lady who helped prepare the applicants' protection visa application, whether the first applicant told her any grounds, whether the applicants expected to review their application before it was lodged, and whether the first applicant expected to sign the application are not matters that were critical to the Tribunal decision in this matter. Rather, the critical matters to the Tribunal's decision were the applicants' claims for protection, which were clarified at the Tribunal hearing. The Tribunal's failure to make more specific inquiries about the matters referred to by the applicants in this ground does not establish jurisdictional error.

Other matters referred to in the parties' submissions on this ground

1. There are two further matters raised in the parties' submissions in relation to this ground that ought to be addressed.
2. I accept the Minister's submission that the applicants' contention in particular 6 that the first applicant's signature was forged on the visa application form is not established on the evidence before the Court. The protection visa application form that was submitted to the Department on the applicants' behalf was an online visa application form that did not require a physical signature.
3. Finally, I accept the Minister's submission that, pursuant to s 98 of the Migration Act, even if the applicants did not fill in the protection visa application form themselves, they are taken to have done so if they caused it to be filled in or if it was otherwise filled in on their behalf. Section 98 of the Migration Act provides that a non-citizen who does not complete his or her own application form is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. Thus, in the present case, the applicants are taken to have completed their protection visa application form even if the Fijian lady who assisted them provided incorrect information and even if the first applicant was not aware of the content of the protection visa application: see NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 (NAWZ) at [16]; SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 (SZGJO) at [16].
4. While this may not directly address the ground raised by the applicants, it further explains why the matters raised by the applicants were not critical issues to the Tribunal decision.
5. This issue was the primary focus of the oral submissions of Counsel for the applicants. In his oral submissions, Counsel for the applicants sought to distinguish other cases on their facts. Counsel for the applicants submitted that:

(a) In NAWZ, there was a person who applied for two protection visas, using a pseudonym for the first one. The Court's apprehension and frustration was understandable and they came down hard on the way the visa applicant conducted himself.

(b) In Bal v Minister for Immigration and Multicultural Affairs (2002) 69 ALD 634; [2002] FCAFC 189 (Bal), there was limited detail in the visa application, but the applicant subsequently provided a 79-paragraph statutory declaration which provided more detail.

1. Counsel for the applicants submitted that, in the present case, the following findings of the Tribunal are relevant:

(a) the first applicant presented her evidence in a forthcoming and credible manner;

(b) the Tribunal accepted that the first applicant paid a lady to make an application on her and her daughters' behalf;

(c) the first applicant was not made aware of the type of the visa or the information included in the visa application;

(d) the Tribunal accepted that the first applicant was not provided with a copy of the protection visa application;

(e) the Tribunal accepted that the first applicant was not involved in the process of lodging the review application with the Tribunal; and

(f) the Tribunal accepted that the claims in the protection visa application do not relate to the applicants' circumstances in Fiji; and

(g) the Tribunal accepted that the applicants did not depart Fiji for the reasons claimed.

1. Counsel for the applicants submitted that there was no common purpose to mislead here, like in NAWZ, and no substantive compliance in completing the protection visa application, as there was in Bal. Counsel for the applicants submitted that the applicants did not cause the Fijian lady to fill in their protection visa application and therefore s 98 of the Migration Act does not apply.
2. I do not accept that s 98 of the Migration Act did not apply here. The first applicant, on her evidence before the Tribunal, paid a lady $900 to complete the protection visa application. She therefore caused another person to fill in her protection visa application form or it was filled in on the applicants' behalf. The application of s 98 is not limited to circumstances where a person intentionally provides incorrect information and the Bal judgment does not support any inference that the protection visa application was invalid, if that is what Counsel for the applicants was hinting at.
3. Section 98 applies in the present case to mean that the applicants are taken to have completed their protection visa application.
4. The applicants' ground is not established.

1. In circumstances where the applicants have not established that the Tribunal made a jurisdictional error, the application to this Court is dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicants' matter was before it for review.