Sidhu v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 546
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sidhu v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 546
File number(s): ADG 5 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 17 April 2025 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – allegations of migration fraud – whether the Tribunal put the applicant on notice of the dispositive issue before it – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 359(3)(a), 359B(1), 359B(2), 359C(1), 379A(5)(b), 476, 476(2)(a)
Migration Regulations 1994 (Cth) r 4.17(4)(b)(i), Sch 2 cll 500.211, 500.211(a), 500.212, 500.212(a)
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submission/s: 21 November 2024 Date of hearing: 11 March 2025 Place: Adelaide Applicant: Self-represented with the assistance of a Punjabi interpreter Counsel for the First Respondent: Mary Baras-Miller Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 5 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INDERPREET SINGH SIDHU
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Student (Class TU) (Subclass 500) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal’s decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, his application cannot succeed.
BACKGROUND
The applicant is a citizen of India. He first arrived on 31 July 2009 as the holder of a student visa (Court Book (CB) 73). Subsequently, the applicant has remained in Australia following the grant of three further student visas (CB 73).
Since arriving in Australia, the applicant has attained the following qualifications (CB 17-18, 73):
·Certificate III in Automotive Specialist, completed in February 2012;
·Diploma of Automotive Technology, completed in May 2014;
·Diploma of Leadership and Management, completed in May 2017.
On 10 June 2017, the applicant applied for the visa (CB 10-25). In that visa application, the applicant indicated that he intended to study a Diploma of Automotive Management (CB 18).
On 29 August 2017, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 71-77). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant…
On 12 September 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 78-79).
On 24 October 2019, the Tribunal wrote to the applicant inviting him to provide further information in a ‘Request for Student Visa Information’ form by 7 November 2019 (CB 85-87). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) (CB 88-92).
On 29 October 2019, the applicant was invited to attend a hearing scheduled for 19 December 2019 (CB 94-96).
On 14 November 2019, the Tribunal wrote to the applicant advising that the hearing had been cancelled, as the applicant had failed to respond to the invitation to provide information in writing by 7 November 2019 (CB 98-99).
On 9 December 2019, the applicant wrote to the Tribunal providing further information regarding his circumstances (CB 100-103).
On 13 December 2019, the Tribunal provided written reasons of their decision affirming the delegate’s decision not to grant the applicant the visa (CB 107-110).
On 7 January 2020, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by identifying the visa decision under review, noting that the applicant had applied for that visa on 10 June 2017 (at [1]-[2]). The Tribunal observed that, at the time of application, the visa class contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, it noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]). The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant satisfied the requirements of cl 500.212 of Schedule 2 to the Regulations (at [3]).
The Tribunal noted that the applicant was assisted by his registered migration agent (at [4]).
The Tribunal outlined that it wrote to the applicant’s migration agent on 24 October 2019, inviting the applicant to provide all relevant information about the course of study he was undertaking, and his entry and stay as a student, by 7 November 2019 (at [5]).
The Tribunal outlined that on 29 October 2019, it invited the applicant to a hearing which was scheduled for 19 December 2019. The Tribunal requested that any additional information the applicant wished to rely upon be provided by 12 December 2019 (at [6]).
The Tribunal noted that it advised the applicant on 14 November 2019 that he was no longer entitled to appear before the Tribunal, as he did not provide information to the Tribunal by 7 November 2019 and did not request an extension of time (at [7]).
The Tribunal outlined that on 18 and 20 November 2019, the applicant attended the Adelaide offices of the Tribunal where staff verbally advised him to ensure information was provided to the Tribunal by 12 December 2019 (at [8]). The applicant attended the Adelaide offices of the Tribunal again on 5 December 2019 requesting a hearing postponement, at which time staff advised him that he needed to write to the Tribunal outlining his circumstances for seeking additional time (at [9]).
The Tribunal noted that the applicant provided a written statement on 9 December 2019 (at [10]).
The Tribunal read and had regard to information provided by the applicant to the Department, as well as the delegate’s decision record and the applicant’s written statement received on 9 December 2019 (at [14]-[15]).
The Tribunal found that the delegate’s decision was based around compliance with cl 500.212 of the Regulations, namely, whether the applicant was a genuine applicant for entry and stay as a student (at [16]). However, the Tribunal determined the issue in its case was whether the applicant satisfied cl 500.211 of the Regulations, namely, whether the applicant was enrolled in a course of study (at [17]).
The Tribunal found that it had not been provided with any information by the applicant that he was enrolled in a course of study as per cl 500.211. Therefore, the Tribunal was not satisfied that the applicant met the criteria for a grant of a student visa (at [19]).
The Tribunal affirmed the delegate’s decision (at [20]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 7 January 2025 contains the following grounds of review:
1.Applicant’s criteria according to GTE satisfied before lodge visa application before 2 months applicant got visa.
2.This decision based on cancellation hearing.
3.Immigration and AAT decision is unfair.
4.Both Immigration and AAT decision grounds of refused visa different.
5.Immigration officer did not satisfied with applicant criteria but AAT members satisfied he made other grounds to make this decision.
The applicant filed an affidavit with that judicial review application which annexed a copy of the Tribunal’s decision.
On 11 June 2020, the applicant filed an additional affidavit annexing written submissions and evidence in support of his application to this Court. A further affidavit was filed on 31 July 2025 annexing additional documents. The Minister, in written submissions, objected to the admission of these affidavits on the basis that the relevance of the material annexed to the affidavits was unexplained and, save for one document, not material which was before the Tribunal.
The Court has considered the contents of the affidavits and their annexures. Whilst somewhat unclear, save for one issue discussed below, the majority of the submissions contained in that affidavit respond to the findings made by the delegate in respect of the applicant’s claims to be a genuine student. However, as the Minister correctly asserts, this Court lacks jurisdiction in respect of this: s 476(2)(a). The Court would ordinarily be prepared to consider those submissions as a contention that they were also matters which the Tribunal should have considered; however, as correctly submitted by the Minister, this was not the basis of the Tribunal’s decision which instead considered whether the applicant met the threshold issue of being currently enrolled in a course of study. For this reason, while the Court has had regard to the submissions contained within the affidavit, the annexed material is simply not relevant to the matter before the Court and that material is not admitted into evidence.
The applicant appeared before the Court on 30 September 2024 and 11 March 2025, respectively, without legal representation but with the assistance of a Punjabi interpreter in the latter hearing. At the first hearing of this matter, the Court raised with the applicant that his submissions contained within his affidavit of 11 June 2024 appeared to raise an issue with the conduct of his migration agent. In these circumstances, the Court was guided by the observations in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 and explained to the applicant that if he wished to rely upon his assertions in respect of his agent’s conduct, he would need to provide evidence in support of those assertions. He was advised that this should be by way of affidavit, but if he wished, he would be given the opportunity to give evidence from the witness box, and if he elected to do so, he may be subject to cross-examination from counsel for the Minister. The hearing was adjourned to allow him time to file any further material he wished to rely upon and to attempt to secure legal representation. In this respect, the Court issued a pro bono referral certificate on behalf of the applicant. The Court was successful in obtaining pro bono counsel in the first instance, however counsel ceased to act for the applicant prior to the hearing. Any and all attempts to engage legal representation thereafter were unsuccessful.
The materials before the Court include:
·The application for judicial review filed on 7 January 2020;
·The affidavit of the applicant filed on 7 January 2020 (taken as read and in evidence on 11 March 2025);
·A Court Book numbering 111 pages (marked as Exhibit 1);
·Further affidavits of the applicant filed on 11 June 2020 and 31 July 2024 (to the extent those affidavits contained submissions); and
·Written submissions filed on behalf of the Minister on 21 August 2024 and 21 November 2024.
Following the hearing on 30 September 2024, the applicant was granted leave to file further evidence, including affidavit evidence, and written submissions in relation to the alleged fraudulent conduct of his migration agent or any other person, which he did so on 4 November 2024 (the November affidavit).
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282 at [41]. Accordingly, at the hearing of this matter on 11 March 2025, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure. In accordance with the approach identified at [30] of these reasons, the applicant also gave evidence in respect of his allegations against his migration agent. He was not cross-examined.
In line with its usual approach, the Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error included:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
CONSIDERATION
As outlined above, there are five grounds of review advanced in these proceedings. Where an applicant is unrepresented, the Court endeavours to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158). In these circumstances particularly, the Court gave the applicant an opportunity to say what was wrong with the Tribunal’s decision.
Against this background, the applicant contended that the Tribunal did not consider his matter properly, by reference to “wrong information” contained in his study record. When asked by the Court whether he was enrolled in a course of study at the time his matter was before the Tribunal, he said that he was not, as his migration agent advised him against enrolling until the Tribunal made its decision.
Ground one
Ground one contends that the Tribunal erred in finding that the applicant did not satisfy the genuine temporary entrant criterion.
The applicant articulated this particular ground more fulsomely in his affidavit filed on 11 June 2020. To the extent that the applicant addressed errors in the delegate’s process and reasoning, the Court explained to the applicant at the hearing on 11 March 2025 that the Court cannot look at the delegate’s decision. In respect of the Tribunal’s process and decision, the applicant set out various submissions addressing why he satisfies various genuine temporary entrant (and other) criteria, and why the Tribunal should have taken this into account.
The critical difficulty for the applicant is that he had not provided information to demonstrate he was enrolled in a course of study in accordance with cl 500.211(a), despite being invited on two occasions to provide evidence of such.
Clause 500.211 of Schedule 2 to the Regulations provides as follows:
One of the following applies:
(a)the applicant is enrolled in a course of study;
(b)if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
The Minister correctly submits that the Tribunal had no discretion to waive the mandatory criterion in cl 500.211(a). Where there was no evidence that could satisfy the Tribunal that the applicant met the criterion, it was required to affirm the decision under review. Consequently, there was no requirement or utility in the Tribunal considering the applicant’s claims to be a genuine temporary entrant as the applicant did not and could not meet the threshold issue of enrolment.
Where the Tribunal cancelled the applicant’s hearing, it provided the applicant with an opportunity to provide information, of which he took advantage, by providing a written statement to the Tribunal. However, this written statement did not address the primary issue before the Tribunal, namely, whether he was enrolled in a course of study. The Tribunal was under no obligation to make its own inquiries about the applicant’s enrolment and the only decision open to it was to affirm the decision under review. However, the Tribunal nonetheless had regard to this written statement in making its decision at [12] of its reasons.
The Minister also sought to rely upon records from the Provider Registration and International Student Management System (PRISMS) to show that the applicant’s enrolment in his Diploma of Automotive Management ceased on 20 September 2019, prior to the date of the Tribunal’s decision. The Minister submitted that on this basis there was simply no evidence which could have been placed before the Tribunal which would have established that he met the requirement to be enrolled. The Court agrees.
No jurisdictional error arises in respect of ground one.
Grounds two and three
The Minister submits that, fairly read, grounds two and three contend that the Tribunal did not award the applicant procedural fairness. The Court accepts that this is an appropriate way to consider these grounds in circumstances where the applicant did not clarify them further.
In oral submissions, the applicant submitted that the Tribunal made incorrect findings in respect of his study history, based on an alleged error in the delegate’s decision relating to a cancelled certificate of enrolment for a course that he claimed he had actually completed. Whilst the applicant was reminded on several occasions that the Court cannot review the delegate’s decision, the primary contention in respect of these grounds appeared to be that the Tribunal did not consider this “wrong information” and did not ask him questions about why he was not enrolled. Of course, as observed above, the Tribunal was required to consider whether the applicant met the criterion for enrolment. It was not required to consider the reason why he did not meet that criterion.
Indeed, the Tribunal did invite the applicant to provide information in respect of his enrolment in a course of study and put him on notice that it was a requirement of the visa to be enrolled. This correspondence was sent to the last email address he had provided to the Tribunal (in accordance with s 379A(5)(b) and 359(3)(a) of the Act) and specified how he could provide the requested information (s 359B(1)), giving him a prescribed notice period of 14 days (r 4.17(4)(b)(i), s 359B(2)). Where the applicant failed to respond to the invitation to provide information, the Tribunal was entitled to make a decision on his application without taking any further action to obtain that information (s 359C(1)). The Tribunal nevertheless gave the applicant a further opportunity to provide evidence, and had regard to the written statement subsequently provided after the notice of cancellation of the hearing.
Having regard to the steps taken by the Tribunal, it is difficult to ascertain how the Tribunal failed to award the applicant procedural fairness when it followed its procedural requirements under the Act. The applicant was given ample opportunity to provide further information, and when no information was received, it made a decision on his application without taking any further action to obtain it. When further information was received after the cancellation of the hearing, the information was taken into account by the Tribunal insofar as it related to the dispositive issue before it.
In these circumstances, no jurisdictional error arises in respect of grounds two and three.
Grounds four and five
Grounds four and five allege that the basis for the delegate’s refusal decision was different to the basis of the Tribunal’s decision.
This does not establish error on the part of the Tribunal. As the applicant did not provide evidence that he was enrolled in a course of study, the Tribunal was required to make the only decision open to it, namely, to affirm the decision under review, and therefore was not required to consider any other factors or circumstances.
Insofar as the applicant alleges that he was not put on notice of the dispositive issue before the Tribunal, the applicant was put on notice via the ‘Invitation to Provide Information’ dated 24 October 2019 that he had to be enrolled in a course of study. He was then advised on 14 November 2019 that the hearing was cancelled on the basis that the applicant did not comply with that invitation by the requested date of 7 November 2019.
The Court is satisfied that, even adopting the broad approach referred to in [36] of these reasons, no jurisdictional error is apparent.
Conduct of the Migration Agent
Whilst not raised explicitly in his grounds, the applicant alleges that the Tribunal made a jurisdictional error by virtue of his migration agent’s alleged fraudulent conduct.
In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE) (citing Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 112), it was explained that fraud is not limited to that of a decision-maker, party or a party’s representative, but the decision or review in question must be actually affected by the fraudulent conduct to constitute a jurisdictional error (at [24]). Thus, fraud on the part of a migration agent, if established, may vitiate an otherwise sound decision if the effect of that fraud is to prevent the Tribunal from properly carrying out its statutory task.
The applicant confirmed at the hearing on 11 March 2025 that everything he wished to rely upon in respect of fraud by his migration agent was contained in the November affidavit. The applicant also gave sworn evidence at the hearing, from which no new claims or evidence arose. In this affidavit (and similarly in sworn evidence given before the Court), he made the following claims perpetrated by the agent, summarised by the Minister in written submissions filed on 21 November 2024 as follows (replicated without alteration):
(a)He had previously hired a migration agent to assist with his student visa application;
(b)That migration agent ‘did not listen’ to the applicant’s advice that he was already enrolled in an Advanced Diploma of Leadership and Management, and advised him to enrol in a Diploma of Automotive Management;
(c)The migration agent did not give the applicant information about his debt to the Minister’s Department when he filed the student visa application;
(d)The applicant heard people say that migration agents get a commission per enrolment but ‘is not sure if this is true or just a rumour’; and
(e)The Tribunal sent all correspondence about the applicant’s review application to his registered migration agent, but the agent did not respond to those emails, or otherwise submit any information to the Tribunal in support of the applicant’s case.
The Minister, in those same written submissions, set out the following documents annexed to the November affidavit (replicated without alteration, save for anonymisation of the migration agent’s email address):
(a)A letter to the applicant from Sheffield College dated 26 May 2017, offering him a place in a Diploma of Automotive Management;
(b)An email from the applicant to [migration agent’s email address] dated 15 October 2024, in which the applicant asks the recipient why his Tribunal hearing was cancelled;
(c)An email from the applicant to the Tribunal dated 15 October 2024, in which the applicant asks the Tribunal why his hearing was cancelled;
(d)A bundle of documents sent by the Tribunal to the applicant’s migration agent in connection with his review application; and
(e)A letter to the applicant from Ironwood Careers and Training dated 4 November 2016, offering the applicant a place in a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management course.
The Court accepts as accurate and adopts the Minister’s summary of the content of the applicant’s November affidavit.
In written submissions, counsel for the Minister set out that, at its highest, the evidence indicates that the applicant was dissatisfied with the advice he received from his migration agent in relation to course enrolments, and the agent was otherwise negligent or incompetent in representing him before the Tribunal. The Minister submitted that the applicant’s bare assertion that the agent engaged in “dodgy work” and his allegation about migration agents generally receiving commissions from course enrolments (with the caveat that he is “not sure if this is true or just a rumour”) are also incapable of establishing that the agent had a dishonest motive. The Minister then submitted that the annexures contained in the November affidavit simply establish that the applicant hired a migration agent, that the Tribunal sent correspondence to that migration agent, and that the applicant has recently enquired about matters connected with his Tribunal application.
The Minister submitted that, in order to establish third-party fraud, the applicant would be required to demonstrate that fraud occurred upon the Tribunal which affected its decision-making process (citing SZFDE at [49]-[51] and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 (SZLIX) at [30]-[33]). This will occur where the fraudulent conduct of a third party means the Tribunal is “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review” (citing SZFDE at [51]).
A migration agent’s actions which are negligent, incompetent or inadvertent, or amount to a simple failure to inform, are not considered to be a fraud on the Tribunal, nor jurisdictional error (SZFDE at [51], SZLIX at [30], [33]). Where no dishonest motive can be inferred on an agent’s part, and where it is equally probable that an agent’s failure to advise the applicant of his Tribunal hearing date was due to an omission or error, the Court cannot be satisfied that such an act or omission lacking dishonest motive directly affects the Tribunal’s discharge of its imperative statutory functions so as to be characterised as “fraud on the Tribunal” (SZLIX at [29], [32]).
The Minister submitted that the applicant’s evidence and submissions merely express the applicant’s dissatisfaction and negligence on the part of the agent. The Minister submitted that the applicant has been afforded procedural fairness in relation to his claim about his agent and, unfortunately, that claim has not been made out such that it rises to the level so as to support a finding of fraud as explained by the High Court in SZFDE.
The Court agrees with the Minister’s submissions in this regard. There is no sufficient basis to establish fraud where there is no evidence to suggest intentionally dishonest or misleading conduct on behalf of the agent. The Court finds that the evidence, at its highest, is indicative of omissions and a lack of diligent communication, but not of dishonesty or deception.
Insofar as the applicant has alleged “dodgy work” performed by his agent, the Court is acutely aware that the agent has not been afforded an opportunity to defend his conduct in these proceedings. Nevertheless, the Court accepts the applicant’s evidence that the agent did not advise him of the correspondence from the Tribunal. However, as articulated, this does not rise to the level so as to support a finding of fraud. As correctly identified by the Minister, mistakes, negligence, ignorance or poor forensic choices are insufficient in themselves to establish third-party fraud.
Importantly, the agent’s conduct did not have the effect of stultifying the Tribunal’s process. In this matter, the Court accepts that the Tribunal made the only decision open to it in circumstances where the applicant was not enrolled in a course of study. The consequence of not being enrolled in a course of study is that the applicant could not meet the criteria for the visa he sought and the Tribunal could not have made any decision other than to affirm the initial refusal decision. There was no evidence the applicant could have provided which would have led to a different outcome, and there was nothing the applicant could have said to the Tribunal if he had been given an opportunity to give evidence at a hearing. The fundamental problem for the applicant is that the lack of enrolment had the consequence that he could not meet the criteria for the visa.
No jurisdictional error arises in respect of this complaint.
CONCLUSION
The application for judicial review, supporting affidavits and additional submissions advanced by the applicant at the hearing have failed to identify any jurisdictional error.
Accordingly, the application is dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 17 April 2025
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