Khan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1195
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1195
File number(s): MLG 404 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 14 December 2023 Catchwords: MIGRATION – application for review of Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – where application for review of Registrar’s decision made out of time – where applicant made oral submissions alleging fraud by a third party – found that grounds for judicial review have no reasonable prospects of success. Legislation: Migration Act 1958 (Cth) ss 353, 359(2), 359A, 359C, 360(3), 363A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.13, 13.13(a), 21.02(1), 21.02(2), 21.04
Migration Regulations 1994 (Cth) Sch 2 cl 500.211(a), cl 500.212, 500.212(a).
Cases cited: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
Briginshaw v Briginshaw (1938) 60 CLR 336
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kwatra v Minister for Home Affairs [2019] FCA 1308
Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration and Citizenship v Li [2013] HCA 18
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322
Singh v Minister for Immigration & Anor [2016] FCAFC 141
Spencer v The Commonwealth (2010) 241 CLR 118
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
SZTIM v Minister for Immigration and Border Protection [2015] FCAFC 101
Wang & Ors v Minister for Immigration and Anor [2016] FCCA 2149
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 27 October 2023 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Simpson of Clayton Utz ORDERS
MLG 404 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FARRUKH AHMED KHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s Application for Review of a Registrar’s decision filed 17 October 2023 be dismissed.
2.The applicant pay the first respondent’s costs in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION
The applicant seeks review of a Registrar’s Decision made on 5 October 2023.
The Application before the Registrar was an Application by the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), for summary dismissal of the applicant’s Application for judicial review filed on 9 March 2023.
The Registrar made orders for the applicant’s Application to be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) and that the applicant pay the first respondent’s costs fixed in the sum of $8,371.30.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister’s Application for summary dismissal is to be considered afresh.
BACKGROUND
The applicant is a citizen of Pakistan.
On 3 September 2020 the applicant applied for a Student (Temporary) (Subclass 500) visa (Visa).
The Department of Home Affairs (Department) confirmed receipt of the Visa application by correspondence dated 3 September 2020. In that correspondence, the applicant was advised the Department may make a decision on his application without requesting further information and that he should therefore “provide us with all the information you feel is relevant”. The applicant was also advised in this letter of the need for him to keep the Department updated with regard to his contact details.
Refusal of student visa on 27 January 2022
On 27 January 2022, a delegate of the Minister (Delegate) refused the applicant’s application for a student visa. The refusal notification attached the decision record of the Delegate which stated the reason for the refusal of the Visa was on the basis that the Delegate was not satisfied the applicant was a genuine temporary entrant for the purposes of study as required by cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
Application for review at Tribunal on 10 February 2022
On 10 February 2022, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (applicant’s representative’s email address) for correspondence and provided the mobile number “xxxxx xxx48” (applicant’s representative’s phone number).
On 11 February 2022, the Tribunal sent the applicant’s representative confirmation of receipt of his application. In that correspondence, the applicant was advised that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to his contact details.
On 25 November 2022, pursuant to s 359(2) of the Migration Act 1958 (Cth) (Act), the Tribunal emailed the applicant’s representative enclosing an invitation for the applicant to provide further information to satisfy the Tribunal that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student (s 359(2) Letter). The Tribunal requested that this information be provided by 9 December 2022, and advised the applicant that any request for an extension of time to provide the information must also be received by 9 December 2022. The applicant was informed that if the Tribunal did not receive the information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the information. Moreover, the applicant was informed that if the Tribunal did not receive the information, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 13 December 2022 the applicant’s representative emailed the Tribunal requesting additional time to provide the information on the basis that the correspondence sent to the representative was sent to the spam folder of their email account.
On 14 December 2022 the Tribunal advised the applicant’s representative that as the applicant had not provided the information or requested an extension of time prior to 9 December 2022, the applicant appeared to have lost his right to a hearing.
On 15 December 2022 the applicant’s representative provided further information and documentation to the Tribunal, including Confirmation of Enrolment (CoE) for the applicant to study a Graduate Diploma of Strategic Leadership at Lennox College (GDSL), with a course start date of 30 May 2022 and an end date of 28 May 2023.
On 9 January 2023 the Tribunal emailed the applicant’s representative inviting the applicant to comment on Provider Registration and International Student Management System (PRISMS) records which indicated he did not hold a current CoE in a course of study as at 5 January 2023 (s 359A Letter). The invitation was sent pursuant to s 359A of the Act which relevantly provides:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
On 23 January 2023 the applicant’s representative resubmitted to the Tribunal the CoE for the GDSL.
On 15 February 2023 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa.
Tribunal’s decision
On 20 February 2023 the Tribunal sent a copy of the decision record to the applicant’s representative. The Tribunal identified that the issue was whether the applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations.
At paragraph [10] of the Tribunal’s decision, the Tribunal set out the applicant’s evidence and noted that although it had been provided out of time, the Tribunal considered the evidence in determining whether the applicant was enrolled in a course of study.
At paragraph [12] of the Tribunal’s decision, the Tribunal noted that as at 5 January 2023 PRISMS records indicated that the applicant was not enrolled in a registered course of study and at paragraph [28] that the PRISMS record established that the applicant had not been enrolled in a course of study since 20 October 2022.
At paragraph [16] of the Tribunal’s decision, the Tribunal noted that the applicant did not explain how he remained enrolled in the GDSL at Lennox Institute in circumstances where:
(a)documents provided by the applicant to the Tribunal on 15 December 2022 stated that he was studying the Graduate Certificate in Business Administration (GCBA) and had an enrolment in the Master of Business Administration (MBA), both at Torrens University, with the CoE’s for those courses created on 12 March 2022, which post-dated any enrolment in the GDSL at Lennox Institute; and
(b)the PRISMS search conducted on 5 January 2023 revealed that the applicant was no longer enrolled in the GDSL or any other course.
At paragraph [23] of its decision the Tribunal noted that the PRISMS records indicated that the CoE for the GDSL was cancelled on 13 April 2022 due to a change to the CoE/student details. The Tribunal noted that this was the enrolment the applicant was relying upon to substantiate that he was enrolled in a course of study.
At paragraph [24] the Tribunal found that the CoE for the GDSL sought to be relied upon by the applicant was inconsistent with the CoE the applicant had obtained for the GCBA and the MBA.
At paragraph [25]-[27] the Tribunal said:
In Singh v MIAC [2009] 236 FLR 384 at [40] – [55], the Court held that to accept that an applicant could rely on an expired COE at the time of decision would defeat the purpose of the Regulations, which is to ensure that an applicant provides evidence that they are enrolled in a full-time course of study. The Tribunal does not accept that the COE number C3C16766 is evidence that the applicant is currently enrolled in a course of study.
The Response filed by the applicant dated 14 December 2022, makes no reference to his enrolment in the Graduate Diploma of Strategic Leadership and claims that he had completed the Graduate Certificate and was studying the Master of Business Administration at Torrens University. The applicant’s Response supports the statement in the PRISMS records that his enrolment in the Graduate Diploma of Strategic Leadership had been cancelled.
The applicant has undertaken studies since COE C3C16766 was issued which is inconsistent with that COE being current and valid and the applicant has not provided any documentation other than the COE to confirm that the enrolment is current. By reason of the contents of the PRISMS records and the Response the Tribunal is satisfied that the COE numbered C3C16766 is not current and cannot be relied upon to establish to prove enrolment.
At paragraph [31] of its decision the Tribunal found that the applicant had not provided a current CoE or any corroborating documents confirming that he was enrolled in a registered course of study. Accordingly, the Tribunal found that the applicant did not satisfy cl 500.211(a) at the time of its decision, and affirmed the decision not to grant the Visa.
PROCEEDINGS IN THIS COURT
On 9 March 2023, the applicant filed an Application for judicial review of the Tribunal’s decision in this Court. In that Application, the applicant sought orders quashing the Tribunal’s decision and an order directing the Tribunal to determine the applicant’s application according to law.
In the Response filed 2 May 2023, the Minister sought orders that the Application be summarily dismissed pursuant to r 13.13 of the Rules.
On 20 July 2023, Orders were made in Chambers listing the matter for a summary dismissal hearing. Procedural orders were also made for the filing of a court book, written submissions and any additional evidence upon which the parties sought to rely. Relevantly, Order 5.2 of the Orders permitted the applicant to file any Amended Application with proper particulars of the grounds of the Application. The applicant did not file any Amended Application, nor did he file any written submissions.
Summary dismissal hearing on 26 September 2023
The summary dismissal Application was heard by the Registrar on 26 September 2023, with the Registrar summarily dismissing the Application for judicial review of the Tribunal’s decision on 5 October 2023.
Application for review of a Registrar’s decision filed on 17 October 2023
As already set out, the Application presently before the Court is an Application for a review of the Registrar’s decision, which was filed by the applicant on 17 October 2023, and that Application is to be conducted as a hearing de novo.
The applicant relies upon his affidavit filed in support of the Application, filed 23 October 2023.
The Minister relies upon its written submissions filed on 5 September 2023 and 23 October 2023.
Late filing of application for review of a Registrar’s decision
Before turning to the summary dismissal Application, the preliminary issue of the late filing of the Application for review of the Registrar’s decision needs to be addressed.
Rule 21.02(1) of the Rules provides that an Application for review of a Registrar’s decision must be made within 7 days. Rule 21.02(2) provides that time may be extended in a proceeding by the Court “on any terms that the Court … thinks fit”.
The Registrar’s decision was made on 5 October 2023. An Application for review of that decision in this Court was therefore required to be made no later than 12 October 2023. The Application for Review of the Registrar’s decision was not made until 17 October 2023.
Accordingly, the Application was made five days after the expiry of the statutory timeframe.
The Minister opposed any extension of time in this matter. The applicant said that the reason for the late filing was that he was unaware his application had been dismissed and that he was “mentally stressed”.
Ultimately, notwithstanding the absence of any acceptable explanation for the delay in filing, I am satisfied in this instance that it is appropriate for the time for filing the review Application to be extended. This is in circumstances where the delay in filing is short and there is no prejudice to the Minister other than costs.
SUMMARY DISMISSAL PRINCIPLES
In considering an Application for summary dismissal under r 13.13(a) of the Rules, it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). It is not necessary for the Court to be satisfied that the applicant is bound to fail.
The discretion to summarily dismiss an Application must be exercised with caution given it is an Order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument: Spencer; Przybylowski. However, what is required is “a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial”: Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
GROUNDS OF REVIEW - APPLICATION
In his substantive Application for judicial review, the applicant raises the following grounds (without amendment):
GROUND 1
In the applicant's case, he has been a student and the course he was enrolled in would be beneficial to his future Job prospects. Hence he should be granted time to present his case whereas the tribunal took irrelevant considerations into notice while leaving our relevant consideration.
A.The Department of Immigration and administrative appeals tribunal did not invoke its discretion and grant a reasonable adjournment, thereby committing a jurisdictional error.
B.The AAT had “Intelligible Justification” for the use of its discretionary power to grant an adjournment and finish the matter there only.
C.The learned judge did not follow the principle in Huo v minister for immigration and Multicultural Affairs [2022] FCA 617.
D. Tribunal asked the wrong question on the issue of Genuine temporary entrant and committed a jurisdictional error.
Making a decision without considering the applicant’s right to procedural fairness:
The case of SZVDE v Minister for Immigration and Border Protection [2015] FCAFC 101 is an example of a case where the Migration Review Tribunal failed to consider the applicant's right to procedural fairness. In this case, the Tribunal failed to provide the applicant with an opportunity to respond to the Minister's submissions before making a decision. The Federal Court of Australia found that the Tribunal’s failure to provide the applicant with an opportunity to respond to the Minister's submissions constituted a breach of the applicant's right to procedural fairness. The Court held that the Tribunal's decision was invalid and ordered that the matter be remitted to the Tribunal for reconsideration.
GROUND 2
The Administrative Appeals Tribunal ("AAT) erred in law and committed jurisdictional error in taking and assessing the factors specified in s.359(2) request rather failed to accept it is only a guide to a decision maker when considering the applicant's Circumstances as a whole, in reaching a finding about whether the application satisfies the genuine temporary entrant criterion. This resulted in a miscarriage of justice.
A.The tribunal emphasized more on circumstances in the Home country, without properly scrutinizing the merits of the applicant's visa application.
B. As per Ministerial Direction 69, the applicant satisfies the conditions for genuine temporary entrant criterion refers to clauses 500.212(a), 500.312(a), and 590.215(a) in Schedule 2 to the Migration Regulations 1994.
C. The applicant has satisfied genuine temporary entrant criteria which the first and the second respondents do not accept as exceptional reasons. Not responding with additional submissions, is an apparent complaint about fairness. Obtaining new qualifications would give the applicant an advantage in Pakistan or another country with international exposure from the Australian education system. The Tribunal found that not to be an exceptional reason. The Tribunal did not make any positive decision or finding in relation to his intentions with respect to completing his study.
D. As per Australian laws, leave to appeal should be granted if the applicant satisfies two tests. First, in all the circumstances the decision to be appealed from is attended with sufficient doubt to warrant its reconsideration on appeal. Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The sufficiency of the doubt in respect of the decision and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. Here the applicant is a responsible family member & genuinely trying to gain skills for the betterment of her carrier & job market in his home country. Decor Corp v Dart Industries Inc [19911FCA 844: (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The concept and principle of procedural fairness evolved from two common law principles: that a decision-maker should not judge their own case or have an interest in the outcome, and that a decision-maker should listen to both sides of a case before making a decision.
Decor Corp v Dart Industries Inc [19911FCA 844: (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).
The concept and principle of procedural fairness evolved from two common law principles: that a decision-maker should not judge their own case or have an interest in the outcome, and that a decision-maker should listen to both sides of a case before making a decision.
GROUND 3
The Learned Tribunal erred in law and therefore fell into jurisdictional error by failing to identify and/or display bias against the Applicant.
A.The second respondent fell into a legal error by failing to exercise its discretion under S359(1) of the migration Act 1958 to receive and have regard to the relevant information.
B.The second respondent acted unreasonably and displayed bias by failing to act under S353 of the Migration Act 1958, denying substantial justice and the merits review of the case.
Making a decision without considering the applicant’s best interests
The case of Minister for Immigration and Border Protection v. SZVDE [2015] FCAFC 97 is an example of a case where the Migration Review Tribunal (MRT) failed to consider the best interests of the applicant. In this case, the applicant was a minor who had applied for a protection visa. The MRT rejected the application on the basis that the applicant had not provided sufficient evidence to demonstrate that they were a refugee.
The Federal Court of Australia found that the MRT had failed to consider the best interests of the applicant, as required by the Migration Act 1958. The Court held that the MRT had failed to consider the applicant's age, the fact that they were a minor, and the potential impact of the decision on the applicant's best interests. The Court found that the MRT had failed to consider the best interests of the applicant and ordered that the decision be set aside and the application be reconsidered.
For the following reasons, I am satisfied that the grounds of the substantive Application for judicial review have no reasonable prospects of success.
Ground 1
Ground 1 first asserts that the Tribunal took into account irrelevant considerations and did not take into account relevant matters. At the hearing, although invited to do so, the applicant was unable to provide any particularisation of either the irrelevant considerations said to have been taken into account by the Tribunal or the relevant matters not taken into account by the Tribunal.
The only issue before the Tribunal was whether the applicant was enrolled in a course of study at the time of the Tribunal’s decision pursuant to cl 500.211(a) of the Regulations. The Tribunal considered the applicant’s evidence. In response to the Tribunal’s s 359A Letter the applicant provided a cancelled CoE for the GDSL. The PRISMS search conducted on 5 January 2023 revealed that the applicant was no longer enrolled in that course or any other course and had not been so enrolled since 20 October 2022. Accordingly, the applicant had not provided the Tribunal with a current CoE either at the date of the response to the s 359A Letter or at the date of the decision. Further, the applicant concedes that he was not enrolled in a study as at the date of the Tribunal’s decision. Accordingly, the Tribunal correctly determined that the applicant did not meet the requirements of cl 500.211(a) and no other considerations were relevant to that determination.
This ground has no reasonable prospects of success.
Secondly, Particulars A and B of Ground 1 assert that the Tribunal did not grant an adjournment to allow the applicant to “present his case”. By this ground I understand the applicant to assert that he ought have been given further time to adduce evidence that he was enrolled in a course of study. I accept that the Tribunal had the power to grant an adjournment. However, I do not consider that the Tribunal acted unreasonably in proceeding in the manner in which it did in circumstances where:
(a)the applicant did not seek an adjournment;
(b)the applicant was given an opportunity to provide information in response to the s 359(2) Letter and the s 359A Letter;
(c)information in relation to both of these invitations was provided late but was nonetheless considered by the Tribunal;
(d)the applicant was on notice that his enrolment status was an issue. The s 359A Letter expressly informed the applicant that the PRISMS record showed that the applicant did not hold a current CoE and was not currently enrolled in a course of study and this may be a basis to affirm the decision of the Delegate;
(e)in response to the s 359A Letter the applicant resubmitted the expired CoE for the GDSL and did not provide any other documents or information addressing whether he was enrolled in a course of study; and
(f)it is uncontested that the applicant was not enrolled in a course of study when the s 359A Letter was provided to the applicant or at the date of the Tribunal’s decision.
This ground therefore has no reasonable prospects of success.
Thirdly, Particular C of Ground 1 asserts that the learned judge (by which I understand the applicant to be referring to the Tribunal) did not follow the principle in “Huo v Minister for Immigration and Multicultural Affairs [2022] FCA 617”. I infer that the applicant intended to refer to Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 (Huo) and proceed on that basis. This ground is misconceived. Huo is authority for the proposition that the Tribunal is not obliged to delay its decision making because an applicant wishes to take further steps to satisfy relevant visa criteria. Accordingly, Huo supports the approach taken by the Tribunal and does not assist the applicant.
This ground has no reasonable prospects of success.
Fourthly, Particular D of Ground 1 asserts that the Tribunal asked the wrong question in relation to the genuine temporary entrant (GTE) criteria pursuant to cl 500.212(a). This ground is also misconceived and has no reasonable prospects of success. The issue before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.211(a). Having found the mandatory requirement under cl 500.211(a) was not satisfied, the Tribunal was not required to engage with the GTE criteria in cl 500.212(a): Kwatra v Minister for Home Affairs [2019] FCA 1308 (Kwatra) at [20] per Berley J. Further, the Tribunal’s decision demonstrates that it did not do so.
In the final unnumbered paragraph of Ground 1, the applicant refers to SZVDE v Minister for Immigration and Border Protection [2015] FCAFC 101 in support of the proposition that “the Tribunal’s failure to provide the applicant with an opportunity to respond to the Minister’s submissions constituted a breach of the applicant’s right to procedural fairness.” I infer that the applicant intended to refer to SZTIM v Minister for Immigration and Border Protection [2015] FCAFC 101 (concerning procedural fairness before this Court rather than the Tribunal). I also infer that the applicant contends the same error arose in relation to the Tribunal’s decision. This ground is misconceived and has no reasonable prospects of success. No submissions were filed by the Minister in the Tribunal review process. The applicant, therefore, cannot have been denied procedural fairness by not having been given an opportunity to respond to such submissions.
It follows that none of the grounds advanced under Ground 1 have any reasonable prospect of success.
Ground 2
In Particulars A-C of Ground 2, the applicant makes various contentions concerning the manner in which the Tribunal determined whether the applicant satisfied the GTE criterion in cl 500.212(a). As already set out above, the issue before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.211(a). Having found the mandatory requirement under cl 500.211(a) was not satisfied, the Tribunal was not required to engage with the GTE criteria in cl 500.212(a): Kwatra at [20] per Berley J. Further, the Tribunal’s decision demonstrates that it did not do so.
These grounds have no reasonable prospect of success.
Particular D of Ground 2 primarily purports to be a summary of the test for leave to appeal. Such principles have no application to the matter which was before the Tribunal or this Court. Particular D also asserts that “here the applicant is a responsible family member & genuinely trying to gain skills for the betterment of her carrier & job market in his home country.” Pursuant to cl 500.211(a) the applicant was required to be enrolled in a course of study. The Tribunal found that he was not and the applicant does not contend otherwise. It matters not whether the applicant was “genuinely trying to gain skills for the betterment of her carrier & job market in his home country”.
The remainder of Particular D and the final paragraph of Ground 2 are directed towards some of the principles of procedural fairness. If it be contended by this Particular that the applicant was denied procedural fairness because the Tribunal “should not judge their own case or have an interest in the outcome” or “should listen to both sides of a case before making a decision”, for the following reasons that contention has no reasonable prospects of success. Firstly, there is no material before the Court to suggest that the presiding Tribunal member had any interest, of the requisite type, in the outcome of the applicant’s Visa application. Secondly, pursuant to the s 359(2) Letter and the s 359A Letter the applicant was twice invited to provide information and documents to the Tribunal and did so. Thirdly, as also set out above, the Tribunal had regard to that information and documentation notwithstanding its late submission. Fourthly, the applicant was expressly put on notice that the information before the Tribunal was that he did not have a current CoE, in response to which he resubmitted the expired CoE for the GDSL. Finally, the Tribunal’s reasons disclose that it considered all of the information before it, including the information provided by the applicant in response to the s 359(2) Letter and s 359A Letter.
For completeness, should it be contended that the applicant was denied procedural fairness due to the absence of a hearing, the Tribunal correctly concluded that:
(a)as the applicant did not provide the information requested in the s 359(2) Letter within the period allowed, s 359C of the Act applied;
(b)pursuant s 360(3) of the Act, the applicant was not entitled to appear before the Tribunal; and
(c)pursuant to s 363A of the Act the applicant had no entitlement to a hearing and accordingly, the Tribunal had no power to permit him to appear: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
It follows that none of the grounds advanced under Ground 2 have any reasonable prospect of success.
Ground 3
Firstly, by Ground 3, the applicant asserts that the Tribunal failed to “identify and/or display bias against the Applicant.” That contention has the following two limbs:
(a)the Tribunal failed to exercise its discretion under s 359 of the Act; and
(b)the Tribunal acted unreasonably and displayed bias by failing to act under s 353 of the Act, “denying substantial justice and the merits review of the case”.
The first limb of that contention has no reasonable prospects of success. The Tribunal did invite the applicant to provide information pursuant to s 359 of the Act. The applicant responded to that invitation and the Tribunal considered that response.
For the following reasons the second limb of that contention also has no reasonable prospects of success. Section 353 of the Act provides as follows:
The Tribunal, in reviewing a Part 5-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
Firstly, s 353 of the Act serves a “facultative rather than a restrictive purpose”: Minister for Immigration and Citizenship v Li [2013] HCA 18 per French CJ at [15]. Secondly, s 353 of the Act does not impose obligations enforceable by administrative law remedies: Wang & Ors v Minister for Immigration and Anor [2016] FCCA 2149 at [30]. Thirdly, the applicant, despite being invited to do so at the hearing, provided no particulars of how the Tribunal did not comply with s 353 of the Act, such that he was denied substantial justice and merits review of his case. The only issue before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.211(a). The Tribunal considered the evidence before it, including information provided by the applicant and determined that question.
Secondly, Ground 3 asserts that the Tribunal was required to consider the applicant’s best interests. That contention must be rejected and has no reasonable prospects of success. As already set out, the issue before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.211(a). It is well established that this criterion imposes an objective criterion for the grant of the visa that cannot be “waived by reference to [an] applicant’s previous study or personal circumstances”: Shahbaz v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 322 at [24]. The applicant’s best interests form no part of the consideration of the satisfaction of that criterion. For completeness, the applicant refers to the case of Minister for Immigration and Border Protection v SZVDE [2015] FCAFC 97. I am unable to identify the case referred to. In any event, as already set out, the applicant’s best interests form no part of the consideration of whether the applicant was enrolled in a course of study as required by cl 500.211(a).
It follows that none of the grounds advanced by Ground 3 have any reasonable prospect of success.
FURTHER GROUND OF REVIEW – FRAUD ALLEGATIONS
In his affidavit filed on 23 October 2023, and at the hearing, the applicant submitted that he had been the victim of fraud. Those allegations focus on the conduct of Mr Hasan Gorfan.
The applicant’s allegations of fraud, as set out in his affidavit filed on 23 October 2023 and as advanced at the hearing, appear to be advanced on the following bases:
(1)Mr Gorfan misrepresented to the applicant and the Tribunal that he was a registered migration agent (Basis 1);
(2)Mr Gorfan delayed the applicant’s application to the Tribunal or acted improperly in filing the application (Basis 2);
(3)Mr Gorfan blocked the applicant’s telephone number and failed to return the applicant’s calls delaying his application for review to the Tribunal (Basis 3);
(4)Mr Gorfan did not do enough to obtain a CoE for the applicant from Torrens University, which resulted in the applicant’s review application before the Tribunal failing because he was not enrolled in a course of study at the time of the Tribunal’s decision. The applicant asserts that Mr Gorfan continued to block the applicant’s telephone number and failed to return his calls about his enrolment (Basis 4);
(5)Mr Gorfan did not pay the applicant’s tuition fees to Torrens University in a timely manner which resulted in his enrolment being delayed, which in turn resulted in his review application before the Tribunal failing (Basis 5);
(6)Mr Gorfan delayed informing the applicant of the Tribunal’s decision which negatively impacted on the applicant seeking judicial review of the Tribunal’s decision in the Court (Basis 6);
(7)Mr Gorfan misrepresented to the applicant that “Berta” was an employee of Apollo and Mr Gorfan changed the person representing the applicant (Basis 7).
The applicant’s allegations against Mr Gorfan, appear to be encapsulated at paragraph [45] of his affidavit filed on 23 October 2023, as follows:
I was cheated by Hasan and his accomplishes. They took my hard-earned money and original documents for their personal means and caused heavy monetary/ financial as well as physical loss to me and my family. The conversation between me Hasan in which he did not show any responsibility towards my case is attached and annexed as FAK-11.
In considering the above allegations, in addition to the applicant’s affidavit filed on 23 October 2023 and the attached annexures and the specific documents tendered at the hearing, I have had regard to the material previously provided to the Court by the applicant and also a video recording of a telephone call between the applicant and Mr Gorfan on 21 June 2023 (21 June Call) (noting that the video recording is not a recording of the entirety of the telephone call).
Legal principles – fraud by a third party
Before considering the applicant’s fraud allegations it is useful to first set out the relevant legal principles.
A finding of fraud is a “serious matter”: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [38]. The applicant carries a “heavy burden” to prove fraud in circumstances where the Tribunal is “blameless”: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445. An applicant cannot prove fraud by “inexact proofs, indefinite testimony or indirect references”: Briginshaw v Briginshaw (1938) 60 CLR 336. Where fraudulent conduct is to be drawn from inference, it must be the most probable inference from the evidence: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 at [30].
In Singh v Minister for Immigration & Anor [2016] FCAFC 141 at [52], the Full Court noted that before discretionary relief is granted, “it will be necessary to find that the agent’s conduct is not only a fraud on the visa applicant but must also stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act”.
In Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 (DUA16) at [14] – [15], a plurality of the High Court held:
In SZFDE v Minister for Immigration and Citizenship, this Court held that a decision of the Refugee Review Tribunal was correctly set aside in circumstances where a rogue had perpetrated a fraud on a family of applicants by falsely representing that he was a solicitor and a migration agent and dissuading the applicants from attending the Tribunal hearing. The fraud was also perpetrated on the Tribunal, whose decision to proceed in the absence of the applicants might not have been made if it had known about the misconduct. This Court emphasised that the appeal required “close attention to the nature, scope and purpose of the particular system of review” rather than reliance upon maxims such as “fraud unravels everything”. The rogue's fraud stultified the operation of the legislative scheme to afford natural justice to the applicants.
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. As this Court said in SZFDE, “there are sound reasons of policy” why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.
(footnotes omitted and emphasis added)
The applicant must prove that they have been the innocent victim of the fraud: Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213 (Maharajan) at [78], [102]. If the applicant establishes the fraud, the second question is how the fraud, “which is proven to have occurred”, affected the processes by which their visa application were to be considered: Maharajan at [103].
Conclusion – further ground of review
Having considered all of the evidence before the Court, for the reasons set out below I do not consider that there is any reasonable prospect that the Court could properly infer at final hearing that any of Mr Gorfan’s conduct was fraudulent or that it in any way stultified the Tribunal’s processes.
Basis 1
The applicant’s evidence is that Mr Gorfan introduced himself as a registered migration agent. He also submitted that Mr Gorfan represented himself as a migration agent because he told the applicant “we are dealing with your case” but then a person called “Varni” took over carriage of his Tribunal review application.
On the evidence before the Court, Mr Gorfan is the Managing Director of Apollo International Pty Ltd (Apollo). It appears that Apollo provides education and migration services. Mr Gorfan’s business card provides that his title is “Managing Director”. Mr Gorfan was never formally appointed as the applicant’s authorised recipient in the Tribunal proceedings, nor does he appear to have communicated with the Tribunal on his behalf. The evidence before the Court is that:
(1)On 10 February 2022, the date he commenced the Tribunal process, the applicant appointed Varni Sathasevam, a registered migration agent who worked for Apollo, as his authorised recipient.
(2)On 13 December 2022, a different registered migration agent connected in some way with Apollo, Berta Mikhael, sent the Tribunal correspondence in relation to the applicant.
(3)On 15 December 2022, the Tribunal received email correspondence from an unnamed person in the “Visa Support Team” at Apollo.
(4)On 23 January 2023, Berta emailed the Tribunal in relation to the applicant. She did so from an email address that implied a connection with “Waratah Aust Immigration” rather than Apollo.
(5)On 25 January 2023, Berta emailed the Tribunal in relation to the applicant. This email emanated from an email address that appears, on its face, to have been affiliated with Apollo.
(6)On 30 January 2023, the Tribunal emailed the following request to the applicant’s personal email address:
On 25 January 2023, we received an email from registered migration agent, Berta Mikhael. If you have appointed Ms Mikhael as your migration agent to act as your representative and authorised recipient, you both need to complete and sign the attached “Appointment of Representative Appointment of Authorised Recipient” form.
Please return the completed form as soon as possible to [email protected].
Please note, all correspondence will continue to be sent to your current registered recipient, Ms Varni Sathasevam, unless we receive the updated form.
(7)On 3 February 2023, Berta emailed the Tribunal a completed “Appointment of Representative Appointment of Authorised Recipient” form that was signed by the applicant. By that form the applicant appointed Berta as his representative and authorised recipient in the Tribunal proceedings. Berta is described in the form as being connected with the Lumos Global organisation. The email Berta sent to the Tribunal that attached the form emanated from a Lumos Global email address.
(8)On 20 February 2023 the Tribunal emailed a copy of its decision to Berta’s Lumos Global email address.
Accordingly, communications with the Tribunal on the applicant’s behalf were undertaken by Varni and Berta, both of whom were registered migration agents and appointed by the applicant as his authorised recipient (noting however that the sender of the communication on 15 December 2022 is not identified).
There is no evidence before the Court to suggest that Mr Gorfan held himself out or represented himself as a registered migration agent. In these circumstances, I cannot see how the Tribunal’s processes were stultified even if Mr Gorfan did introduce himself to the applicant as a registered migration agent. Further, the applicant’s evidence is that Mr Gorfan told the applicant that “there are some good attorneys in his office who usually file appeals and deal with other cases related to migration issues and laws”. This would appear consistent with other persons within Apollo having carriage of the applicant’s Tribunal review application.
The evidence before the Court does suggest that Mr Gorfan was the applicant’s primary point of contact within Apollo during the Tribunal review process. However, I am unable to see how anything fraudulent can be inferred from the fact that the applicant’s primary point of contact with Apollo was not the same person as his representative and authorised recipient. Firstly, it is common place for multiple people to service one client’s file. Secondly, it is consistent with the applicant’s evidence as to what Mr Gorfan told him of the “attorneys” in his office. Thirdly, there is nothing before the Court to indicate that Mr Gorfan is a registered migration agent and this would therefore explain first Varni, and later Berta’s, involvement as the representative before the Tribunal as both were registered migration agents. For completeness, I note that in the 21 June Call, Mr Gorfan told the applicant that Berta was “the principal migration agent”.
The applicant also seemed to suggest that some fraudulent activity or intent can be inferred because Berta copied Mr Gorfan into an email to the applicant on 3 February 2023. I accept that there is a connection between Berta and Mr Gorfan. The evidence suggests that they both worked for or were associated with Apollo. The email of 3 February 2023 requested that the applicant sign an MR5 form. I infer that this is the MR5 form sent by Berta to the Tribunal later that day. The most obvious conclusion to draw from this is that Berta was simply keeping Mr Gorfan informed as to the matter. I do not consider there is any proper basis to infer some fraudulent activity or intention.
Basis 2
As to Basis 2, the applicant did not particularise the alleged improper conduct with any precision however I infer that it is alleged that Mr Gorfan took the applicant’s fee for Apollo to represent the applicant in the Tribunal and the applicant “came to know that the said appeal could not be filed before AAT on time by him”. Further, it appears to be alleged that Mr Gorfan did not take the applicant’s calls regarding his application to the Tribunal.
I do not consider the applicant has any reasonable prospect of establishing fraud on this basis at final hearing. Firstly, the Delegate’s decision to refuse the applicant’s visa was made on 27 January 2022. The applicant’s application to the Tribunal was made on 10 February 2022. Accordingly, the application, contrary to the applicant’s evidence, was in fact made within time and there was no delay. Secondly, the evidence relied upon by the applicant to support the contention that Mr Gorfan did not take his calls is undated and appears to relate to his enrolment with Torrens University one year later in 2023 and not to relate to the application to the Tribunal. Thirdly, even if it be the case that Mr Gorfan did not take the applicant’s calls at this time, as asserted, nothing turns on this as the application was in fact made to the Tribunal within time. Fourthly, on the applicant’s own evidence he transferred the first instalment of the fee to Apollo for the application to the Tribunal on 10 February 2022 and the application was lodged that day.
Basis 3
There is simply no evidence before the Court that supports the applicant’s claim that Mr Gorfan blocked the applicant’s telephone number. The documents relied upon by the applicant in support of this claim comprise text messages between 15 December 2022 and 7 March 2023 between Mr Gorfan and the applicant.
Those documents demonstrate that in that period Mr Gorfan:
(a)called the applicant but the applicant did not answer those calls on 15 December 2022 (twice), 26 January 2023 (three times), 26 February 2023, 6 March 2023 and 7 March 2023 (twice); and
(b)sent messages to the applicant on approximately 15 occasions, including informing the applicant that he was on another call and would call him later or that he could not talk at that time and asking if he could call later.
Those documents also demonstrate that in that period the applicant sent Mr Gorfan approximately 23 text messages regarding documents, his CoE and the Tribunal hearing.
Accordingly, there is simply no evidence that Mr Gorfan blocked the applicant’s calls and fraud on this basis could not be established.
As to the assertion that Mr Gorfan did not always answer or return the applicant’s calls, I consider the evidence relied on by the applicant and set out above does support this claim. For completeness, I note that it also supports a conclusion that the applicant did not always answer Mr Gorfan’s calls. I consider the evidence also supports a conclusion that Mr Gorfan did not engage with the applicant in as timely a way as may be desirable. I accept the applicant’s submission that most particularly from early February 2023 the applicant was “chasing” Mr Gorfan regarding his CoE. However, I do not consider that the applicant has reasonable prospects of establishing at a final hearing that the most probable inference to be drawn from the evidence is that Mr Gorfan’s failure to answer or return the applicant’s calls was fraudulent. There is, in my view, simply nothing arising from the evidence before the Court to support the drawing of that inference. I consider Mr Gorfan’s conduct could just as easily be the result of negligence, oversight or inefficiency. Such conduct is not capable of stultifying or vitiating the Tribunal’s processes: DUA 16; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
Basis 4
As to Basis 4, the documentary evidence before the Court is that Apollo contacted Torrens University on two occasions to enquire as to the applicant’s enrolment. Firstly, on 3 November 2022 when someone from the Apollo “Admission Team” emailed Torrens University a signed acceptance. Secondly, on 1 March 2023 when the Admission Team responded to an email from the education provider saying, “can the student proceed for the CoE?”. It is to be noted that this second contact occurred after the Tribunal’s decision. This is consistent with what Mr Gorfan told the applicant in the 21 June Call.
I accept that the evidence establishes that Mr Gorfan showed a less than proactive approach to seeking a CoE for the applicant. However, on the evidence before the Court I do not consider that the applicant has reasonable prospects of establishing at final hearing that this was fraudulent or dishonest conduct by Mr Gorfan. Firstly, it is not clear from the material before the Court that Mr Gorfan himself was responsible for obtaining the applicant’s CoE. Secondly, I consider that the lackadaisical approach to the issue of the applicant’s CoE is at least equally probable to have been due to laziness, incompetence or negligence. I have already addressed the applicant’s assertions that Mr Gorfan blocked and failed to return the applicant’s calls.
Basis 5
The evidence before the Court establishes that on 25 January 2023 Torrens University made an offer to the applicant for enrolment in a Master of Business Administration (Advanced), with a start date of 20 February 2023 and a completion date of 25 August 2024. The offer required a commencement fee of $9078.00 to be paid and contained a document entitled “Step-by-step guide to accepting your offer”. Step 5, contained on page 5 of the offer, is entitled “Payment Options” and provides that payment could be made by BPay, credit card or bank account transfer via “flywire” using the link “torrens.flywire.com”. Step 5 also included the following instructions:
Once you have paid, please email a copy of your payment advice to [email protected] and include your student number in the correspondence.
The applicant’s evidence is that on 26 January 2023 he transferred the commencement fee to Apollo. On 3 February 2023 Mr Duan of Torrens University emailed the applicant informing him that he needed to pay the deposit for his enrolment and advising him that “Currently, 0 balance is in your account”. Mr Duan again emailed the applicant following up on payment on 16 February 2023. The Tribunal made its decision on 15 February 2023.
On 10 March 2023 the applicant sent to Mr Gorfan a screenshot of an email he had received from Torrens University. The email relevantly stated:
I have been advised that the payment that you provided us attached, was actually submitted to your agent and not Torrens University.
We urgently require your agent to transfer the payment of $9080 to be sent to Torrens.
Please contact your agent today - this payment is now overdue and your COE is at risk until this is transferred.
It is unclear from the evidence before the Court when the above email was actually sent to the applicant. The applicant’s affidavit evidence is that on 10 March 2023 Torrens University emailed Apollo and asked it to transfer the commencement fee and Mr Gorfan informed Torrens University that the payment had been transferred already. The applicant’s further evidence is that Torrens University then asked Mr Gorfan for proof of payment and that Mr Gorfan never replied to this email. There is no documentary evidence before the Court which supports these matters.
In the 21 June Call, the applicant said to Mr Gorfan that Torrens University had informed him that “your transaction is not approved”. This appears to be a reference to the transfer of funds from Apollo to Torrens University for the applicant’s tuition fees. Mr Gorfan then asked the applicant to let him call “Harley”, who Mr Gorfan said was the “regional manager” of Torrens University. That did not occur. In summary, the remainder of the conversation, relevantly, was as follows:
(a)the applicant asked Mr Gorfan why he did not issue a CoE. Mr Gorfan said that the CoE was issued the day after the Tribunal made its decision. He later said that Torrens University sent the CoE on 6 March 2023;
(b)the applicant said to Mr Gorfan that he had paid the tuition fee to Apollo almost one and a half months before the Tribunal decision and that the loss in the Tribunal was “your mistake”. Mr Gorfan replied that the loss was because of “the University’s delay”. The applicant described the situation as a “big mistake”. Mr Gorfan said “it is not a mistake, it was delay from university side because of high volume of application”; and
(c)Mr Gorfan told the applicant that he had chased Torrens University for the CoE by email on 3 November 2022 and he did not receive a reply. He said that he chased the university again on 4 March 2023 and the University sent the CoE on 6 March 2023.
For the following reasons, I do not consider that there is any reasonable prospect of the applicant being able to establish at final hearing any fraudulent conduct on Mr Gorfan’s behalf in relation to the payment of the applicant’s tuition fees to Torrens University. Firstly, the applicant paid the commencement fee to Apollo. The offer instructed the applicant to make payment of the commencement fee directly to Torrens University. At the hearing, the applicant submitted that it was Mr Gorfan’s responsibility to make payment of the commencement fee to Torrens University as Mr Gorfan was representing him before the Tribunal. I reject that submission. The offer was addressed to the applicant, not Apollo and sent by email to the applicant. Further, payment to Apollo of the commencement fee is contrary to the express instructions given to the applicant by Torrens University in the offer and the payment link provided. Additionally, there is no evidence before the Court to suggest that Mr Gorfan was “responsible” for making payment to Torrens University as a consequence of acting for the applicant before the Tribunal. Accordingly, on the material before the Court, I consider the better view to be that the applicant made a mistake as to whom he should transfer the commencement fee and that the failure of Torrens University to receive the commencement fee in a timely manner arose from that mistake. I consider this to be consistent with the email of 10 March 2023 from Torrens University which commenced by saying “I have been advised that the payment that you provided us attached, was actually submitted to your agent and not Torrens University” (emphasis added). Further, that email was sent to the applicant not Apollo and is contrary to the applicant’s evidence that Torrens asked Mr Gorfan for proof of payment and he said it had already been paid. Secondly, there is no evidence before the Court that the applicant took any steps in relation to the fee payment upon receipt of the emails from Torrens University dated 3 February 2023 or 16 February 2023 alerting him to the fact that Torrens had not received the commencement fee.
However, even if the applicant’s submission that Mr Gorfan was responsible for making payment of the commencement fee to Torrens University (which I do not consider can be established on the evidence) is correct, I still do not consider that the applicant has any reasonable prospect of establishing at final hearing that the most probable inference to be drawn from the evidence is that Mr Gorfan’s failure to transfer the fee was fraudulent. In my view, I do not consider that the evidence before the Court justifies the drawing of such an inference; rather, I consider that such conduct could just as easily be explained by incompetency, laziness, oversight or negligence. In this context, I note that in the 21 June Call, Mr Gorfan immediately suggested that he contact “Harley” when told that the University had not received the funds. I do not consider this to be consistent with a fraudulent intention on Mr Gorfan’s behalf to retain the funds.
In his affidavit at paragraph [46] the applicant says, “After my AAT appeal rejected, Mr [Gorfan] had paid the university tuition fee and also generated my COE, so he can further manipulate me.” At the hearing the applicant seemed to suggest that Mr Gorfan withheld payment of the commencement fees so that the applicant’s application to the Tribunal would be unsuccessful and Mr Gorfan could generate further fees by acting for the applicant in judicial review proceedings before this Court. The applicant also asserted that Mr Gorfan was more responsive to him once the Tribunal had made its decision. As to these matters, I have already addressed the circumstances around the payment of the tuition fees above. I consider the delay arose from the applicant making payment to Apollo rather than Torrens University as instructed and Mr Gorfan did not, therefore, withhold or delay payment of the fees. Further, there is simply no evidence to support the contention that Mr Gorfan sought to manipulate the applicant. As to the assertion that Mr Gorfan’s conduct was directed to generating further fees by acting for the applicant in these proceedings, there is also no evidence to support that assertion. It is also, in my view, implausible that the applicant would so engage Mr Gorfan if he considered him responsible for the unfavourable outcome before the Tribunal (leaving aside whether Mr Gorfan could, in fact, act for the applicant in these proceedings). As to the allegation that Mr Gorfan was more responsive after the decision of the Tribunal, there is simply no probative evidence before the Court to support that assertion.
Basis 6
Basis 6 has no reasonable prospects of success. Firstly, this conduct relates to matters arising after the Tribunal’s decision and could not, therefore, of itself, have stultified or vitiated the Tribunal process. Secondly, the Tribunal’s decision was sent to Berta on 20 February 2023 and there is no evidence before the Court as to when it was provided to Mr Gorfan, although the evidence does demonstrate that Mr Gorfan sent the decision to the applicant on 7 March 2023. Thirdly, whilst there is some passage of time between Berta receiving the Tribunal’s decision and Mr Gorfan forwarding it to the applicant, pursuant to s 477 of the Act, the applicant’s application to this court for judicial review of the Tribunal’s decision was required to be made within 35 days of that decision, that is by 22 March 2023. The applicant filed this proceeding on 9 March 2023. The application for judicial review was therefore made well within the required time frame.
Basis 7
As to Basis 7, I am prepared to accept that the applicant could establish at final hearing that Mr Gorfan told him that Berta was an employee of Apollo. I infer that the applicant contends that is false. Mr Gorfan described Berta as the “principal migration agent” in the 21 June Call. In her initial contact with the Tribunal on 13 December 2022, Berta’s email signature box is “Apollo International”. However, subsequently on 23 January 2023 Berta emailed the Tribunal from an email address associated with “Waratah Aust Immigration” and on 3 February 2023 Berta sent an email to the Tribunal enclosing the MR5 form signed by the applicant from an email address associated with “Lumos Global”. In between times, on 25 January 2023 Berta corresponded with the Tribunal from an email address that appears to be associated with Apollo. Accordingly, as already set out earlier, the evidence supports a conclusion that there is a connection between Berta and Mr Gorfan and that Berta was associated with Apollo. However, the precise nature of that association is not clear. Even if, as contended by the applicant, Mr Gorfan told him that Berta was an employee of Apollo and that is not the case, I am unable to see how that stultified or vitiated the Tribunal process. Berta was a migration agent and was appointed by the applicant to represent him before the Tribunal, after Varni ceased to do so. He engaged Apollo to represent him before the Tribunal and Apollo engaged Berta. This does not establish fraud on behalf of Mr Gorfan nor did it impact in any way on the Tribunal’s processes. I have earlier addressed the change of migration agents handling the applicant’s case and I refer to and repeat those comments.
For all of the above reasons, Basis 7 has no reasonable prospects of success.
For completeness, while the applicant made no submissions as to this, I have considered the provision to the Tribunal of the GDSL CoE in response to the Tribunal’s s 359A invitation in circumstances where there was a process on foot of which Apollo was aware in relation to obtaining a new CoE for the applicant from Torrens University. There is no evidence before the Court as what communications, if any, there were between Berta, the applicant and Mr Gorfan in relation to the provision of the GDSL. I do not consider that the mere fact that the cancelled CoE was provided is evidence that Berta or anyone else from Apollo acted with fraudulent intentions or that such intentions can be inferred. I consider it at least equally likely that the GDSL CoE was provided due to mistake or misunderstanding, noting that the GSDL CoE provides that it commences on 30 May 2022 and concludes on 28 May 2023 and does not otherwise indicate on its face that enrolment in that course had been cancelled.
Accordingly, I consider that the applicant has no reasonable prospect of establishing third party fraud at final hearing. I accept that on the evidence before the Court, Mr Gorfan and Apollo appear to have been less than diligent in relation to the conduct and management of the applicant’s matter in a number of aspects. However, firstly, neither Mr Gorfan nor Apollo have had an opportunity to put any evidence to the Court. Secondly, mere negligence, mistake or incompetence is not enough to vitiate the Tribunal’s processes. There are sound policy reasons why an administrative decision is not vitiated merely by bad or negligent advice or some other conduct that occasioned detriment to an applicant: DUA16 at [15]. The applicant may make a complaint regarding the service Apollo provided to the Office of the Migration Registration Authority if he considers it appropriate to do so.
DISPOSITION
For the reasons set out above, I find that the applicant’s substantive Application has no reasonable prospects of success.
Accordingly, the application for review of the Registrar’s decision must be dismissed.
The first respondent seeks an order that the applicant pay their costs fixed in the amount of $4,189.38 (being the amount provided for in the Court’s scale as set out in Division 1 of Part 2 of Schedule 2 of the Rules for proceedings that are determined at an interlocutory stage). I shall so order.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 14 December 2023
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