Zhang v Minister for Immigration & Anor - [2014] FCCA 2752

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2752

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – student visa – whether error of law – whether unreasonableness – whether fraud on Migration Review Tribunal – whether requirement for valid application for review – whether jurisdictional error – exercise of discretion in determining whether to grant relief where ulterior purpose of prolonging staying in Australia.

Legislation:

Migration Act 1958 (Cth), ss.98, 338(2), 347(2), 412, 414, 476

Migration Regulations1994 (Cth), regs.1.40(1), 1.41(1), Schedule 2, cll.572.223(2)(a), 572.227, Schedule 5A, Part 4, Div.2

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Craig v The State of South Australia (1995) 184 CLR 163
Hao Jiang v Minister for Immigration & Citizenship [2007] FCA 907
Kim v Minister for Immigration & Anor [2008] FMCA 1577
Kim v Minister for Immigration & Citizenship [2009] FCA 161
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Minister for Immigration & Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47
Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration & Citizenshipv SZLIX & Anor (2008) 245 ALR 501; [2008] FCAFC 17
Minister for Immigration & Multicultural & Indigenous Affairsv SZANS (2005) 141 FCR 586; [2005] FCAFC 41
Mushtaq v Minister for Immigration & Anor [2013] FCCA 198
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42
SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35
SZLHP v Minister for Immigration & Citizenship & Anor (2008) 172 FCR 170; [2008] FCAFC 152
SZQVV v Minister for Immigration & Citizenship & Anor (2012) 130 ALD 472; [2012] FCA 871
SZSXT v Minister for Immigration & Border Protection & Anor (2014) 222 FCR 73; [2014] FCAFC 40
WZATN v Minister for Immigration & Anor [2014] FCCA 861

Applicant:

YANGMIN ZHANG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 73 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

28 August 2014

Date of Last Submission:

28 August 2014

Delivered at:

Perth

Delivered on:

3 December 2014

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr P Macliver

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 73 of 2014

YANGMIN ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applies to this Court for judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the Migration Review Tribunal[2] affirming a decision of a delegate[3] of the first respondent, the Minister for Immigration & Border Protection,[4] refusing to grant the applicant a Student (Temporary) (Class TU) Subclass 572 visa.[5]

Background

[1] “Migration Act”.

[2] “Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 106-113.

[3] “Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 45-49.

[4] “Minister”.

[5] “Student Visa”.

General

The applicant’s general background is as follows:
a)the applicant is a citizen of People’s Republic of China,[6] born on 29 January 1965 and whose usual country of residence is China;
b)the applicant entered Australia on a Class FA Visitor visa (Subclass 600),[7] which was granted to her in China on 22 May 2013;[8] and
c)the applicant arrived in Australia at Perth on 2 August 2013, and since that date has been living with Richard Wilton Bowman at his residence in Woodlands, a suburb of Perth in Western Australia.[9]
[6] “China”.
[7] “Visitor Visa”.
[8] CB 4 and 46.
[9] See the applicant’s affidavit sworn 20 March 2014 (“Applicant’s Affidavit”) at para.1, and the affidavit of Richard Wilton Bowman affirmed on 23 June 2014 (“Mr Bowman’s Affidavit”) at paras.2 and 3.

Application for a Student Visa

The events in relation to the applicant’s application for a Student Visa are as follows:
a)in or about early October 2013 the applicant was “introduced”, by telephone, to Jiang Xue Guang,[10] who claimed to be a licensed migration agent carrying on business at 301/401 Sussex Street, Haymarket in New South Wales;[11]
[10] “Mr Jiang”.
[11] Applicant’s Affidavit, para.2.
b)during her telephone conversation with Mr Jiang, the applicant asked him to look at her Visitor Visa and asked in what ways he could help her to apply for any onshore visa to allow her to continue her stay in Australia. Mr Jiang advised her that she could apply for a refugee visa or a student visa;[12]
[12] Applicant’s Affidavit, paras.5 and 6.
c)the applicant told Mr Jiang that she did not wish to apply for a refugee visa, but asked whether, based on her age, she was still eligible for a student visa. The applicant says that Mr Jiang told her:
I can help you apply for a course in a business college because there is no age limitation,
and that:
If you apply for this type of visa, it will be refused by the immigration department and there is no chance of success.[13]
[13] Applicant’s Affidavit, paras.7 and 8; Affidavit of Nathan Wong, affirmed 24 June 2014, paras.6-7 (“Mr Wong’s Affidavit”).
d)the applicant asked Mr Jiang what would happen if the visa application was not successful, and he replied:
Don’t worry, if the visa application is rejected by the immigration department I can help you to lodge an application with MRT which is the best way for me to prolong your stay in Australia.[14]
[14] Applicant’s Affidavit, paras.9 and 10; Mr Wong’s Affidavit, paras.6-7.
e)the applicant then asked Mr Jiang how long the whole process would take allowing her to stay in Australia legally, and that he advised one and a half years.[15] The applicant says that she trusted Mr Jiang because he was a licensed migration agent and thought that this was the best option she could take, so she agreed, and on 11 October 2013 she paid Mr Jiang an amount of $2,435;[16]
f)on 29 October 2013 Mr Jiang lodged the applicant’s application for the Student Visa,[17] which stated that the applicant was to undertake a Certificate IV in Business with the Australian College of Management & Technology from 13 January 2014 to 15 June 2014, and then a Diploma of Business with the same education provider from 14 July 2014 to 14 June 2015. The applicant’s residential address and address for correspondence were both given as 35/14 Greek Street, Glebe in New South Wales;[18]
g)the Student Visa Application was supported by a Confirmation of Enrolment for each of the two courses specified in the application;[19]
h)the applicant was unaware that the Student Visa Application had been lodged, had never seen the application form for the Student Visa Application, nor signed it, and did not receive any Confirmation of Enrolment from the Australian College of Management & Technology;[20]
i)by letter dated 10 December 2013 the Delegate wrote to the applicant at 35/14 Greek Street, Glebe in New South Wales, and advised that based on the country of issue of her passport and the course of study proposed, the assessment level applicable to her application was Assessment Level 4, and that when applying for a student visa in Australia she must either be the holder of a student visa or establish exceptional reasons for the grant of a student visa, and invited her to provide the exceptional reasons;[21]
j)on 21 November 2013 Mr Jiang provided the Department with a statement purporting to be by the applicant, asserting that the applicant is a believer in Falun Da Fa, and for that reason it was impossible for her to return to China to apply for the Student Visa, and that she was scared that if she returned the Chinese government might capture her and mistreat her again;[22]
k)on 10 December 2013 the Delegate made a decision refusing to grant the Student Visa to the applicant. The Delegate was not satisfied that the applicant had established exceptional reasons for the grant of the Student Visa, and she therefore did not meet cl.572.227 of Schedule 2 to the Migration Regulations 1994 (Cth).[23] The Delegate was accordingly not satisfied that the applicant satisfied the prescribed criteria for the Student Visa, and further concluded that the applicant did not meet the primary criteria for any of the other subclasses within the Student (Temporary) (Class TU) category;[24]
l)the Department advised the applicant of the Delegate’s Decision by letter dated 10 December 2013, again addressed to her at 35/14 Greek Street, Glebe in New South Wales. The letter advised that the Student Visa Application had been refused because the applicant did not satisfy Schedule 5A of the Migration Regulations, and also did not satisfy cl.572.227 of Schedule 2 to the Migration Regulations;[25] and
m)in December 2013 Mr Jiang advised the applicant that her Student Visa Application had been refused “and [told the applicant] that was the way it was supposed to be”.[26] In response to her query as to what she could do next and how much it would cost, Mr Jiang replied that she could apply to the Tribunal for a merits review of the Delegate’s Decision, and that the cost of a merits review application was $1,600.[27] The applicant made a further payment to Mr Jiang in this amount.[28]
[15] Applicant’s Affidavit, para.11; Mr Wong’s Affidavit, para.7.
[16] Applicant’s Affidavit, paras.12 and 13.
[17] “Student Visa Application”.
[18] CB 1-20.
[19] CB 21-22.
[20] Applicant’s Affidavit, paras.17 and 18; Mr Wong’s Affidavit, para.18.
[21] CB 35-37.
[22] CB 38 and 40.
[23] “Migration Regulations”.
[24] CB 45-47.
[25] CB 41‑44.
[26] Applicant’s Affidavit, para.19.
[27] Applicant’s Affidavit, paras.19 and 20.
[28] Applicant’s Affidavit, para.20.

Application to the Tribunal for merits review of Delegate’s Decision

The events in relation to the application to the Tribunal for merits review of the Delegate’s Decision were as follows:
a)on 16 December 2013 Mr Jiang lodged an application with the Tribunal seeking review of the Delegate’s Decision refusing to grant the Student Visa to the applicant. The applicant’s residential and postal address was given as 2/26 Chestnut Avenue, Telopea, New South Wales;[29]
b)in January 2014 Mr Jiang told the applicant that the Tribunal had sent a letter dated 23 January 2014 inviting the applicant to attend a hearing before the Tribunal on 25 February 2014. Mr Jiang emailed the Tribunal’s letter to the applicant;[30]
c)the applicant asked Mr Jiang what would happen next and whether she had to attend the Tribunal hearing since she was in Perth, and Mr Jiang replied with words to the effect that she could go to Sydney if she wished, but she “would not be successful in the [Tribunal] hearing in any case, and suggested me to not waste my money to attend the hearing”;[31]
d)on 26 February 2014 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Student Visa;[32] and
e)on 6 March 2014 Mr Jiang sent to the applicant by email a copy of the Tribunal Decision.[33]
[29] CB 57-67.
[30] Applicant’s Affidavit, paras.21 and 22.
[31] Applicant’s Affidavit, para.24.
[32] CB 106 and 110.
[33] Applicant’s Affidavit, para.26.

Tribunal Decision

Having set out the background to the application to the Tribunal for merits review, the Tribunal identified the relevant law with respect to the criteria for the grant of the Student Visa and identified that the issue was whether the applicant met the criterion in cl.572.227 of Schedule 2 to the Migration Regulations, which specified a number of time of decision criteria which had to be met.[34]
[34] CB 107 at paras.1-9.
The Tribunal then set out the legislative requirements for the grant of the Student Visa including that an applicant cannot enter Australia on another type of temporary visa, and then obtain a Student Visa on the basis of studying in Australia, unless the applicant establishes “exceptional reasons” for the grant of a student visa.[35] The Tribunal noted that “exceptional reasons” is not defined in the Migration Act or Migration Regulations, and observed that:
When determining whether ‘exceptional reasons’ have been established, the decision-maker must assume that the visa applicant ‘should not be granted the visa unless some reasons can be positively identified which justify, in the mind of the decision-maker, the grant of the visa’. Beyond such reasons being capable of being described as “‘exceptional’, in ‘ordinary parlance’, there is no prescriptive definition of the term. The decision-maker has ‘a nearly unconfined discretion to address the particular circumstances of the case, and to consider whether the applicant should be made an exception to a ban on the grant of the visa in Australia’.[36]
[35] CB 108 at para.10.
[36] CB 108 at para.14, citing Kim v Minister for Immigration & Anor [2008] FMCA 1577 at para.29 per Smith FM (“Kim”) (the quote is actually from para.30), and noted that the judgment in Kim was undisturbed on appeal, citing Kim v Minister for Immigration & Citizenship [2009] FCA 161.
The Tribunal also noted that there were non-binding guidelines[37] which indicated that “exceptional reasons” may include but are not limited to situations where:
·there is a ‘benefit to Australia’ (for example where the ‘visa grant would improve bilateral relations or provide significant economic benefits to Australia’)
·the applicant is a dependent of a departing temporary resident and has been studying in Australia for at least one year and wishes to complete her or his current course or undertake further studies
·the applicant held a Class TU visa in Australia when they were granted a specified temporary visa and now wishes to undertake further study or continue their course of study
·the applicant previously held a student visa and now holds a Subclass 676 (visitor) visa granted under s.351 (Ministerial intervention).[38]
[37] “PAM3 Guidelines”.
[38] CB 108 at para.15.
In considering the applicant’s claims and the evidence the Tribunal reiterated that the issue was whether at the time of decision by the Tribunal the applicant satisfied cl.572.227 of Schedule 2 to the Migration Regulations for the purposes of the Student Visa Application.
The Tribunal then set out the applicant’s personal details, current visa details, applicable assessment level (Level 4), intended course of study, prior study and financial details.[39]
[39] CB 109 at para.19.
The Tribunal observed, on 6 November 2013, that the Delegate had asked the applicant to provide further information on exceptional reasons for the grant of the Student Visa. In the response received on 21 November 2013 the applicant said:
… she wanted the student visa as she is a Fallun Da Fa practitioner, and her life in China has been “really bad”, she was “treated unfairly” and it was difficult for her to leave China. She wanted to start a new life and meet new friends in Australia, wanted to study in Australia and cannot live without her religion. She fears she might be captured if she returns to China. She wants a student visa as if she returns to China she might not be able to leave again. She didn’t have an opportunity to have a proper education in China and “now that I have the financial capacity I would love to learn something new”.[40]
[40] CB 109 at para.20.
The Tribunal observed that the applicant had not provided additional evidence relating to exceptional reasons for the purposes of the application to the Tribunal for merits review of the Delegate’s Decision.[41]
[41] CB 109 at para.21.
The Tribunal held that on the basis of the Student Visa Application the applicant “must establish exceptional reasons for the grant of” the Student Visa.[42] The Tribunal then observed as follows:
She has provided reasons to the delegate and no additional information to the Tribunal. She has not attended the tribunal hearing. The reasons she has given in her application for wanting to study the business courses are not exceptional. They are personal to her and related to her own study and career goals. The reason she has given relating to Falun Da Fa and claiming to be a practitioner, are not related to study goals and are not in the nature of, or of the type of matters as detailed in PAM3. On that basis, the Tribunal finds that the applicant does not satisfy clause 572.227 of Schedule 2 to the Regulations.[43]
[42] CB 109 at para.22.
[43] CB 109 at para.22.
The Tribunal went on to find that as the applicant had not satisfied the requirements of cl.572.227 of Schedule 2 to the Migration Regulations, and did not meet an essential requirement for other student visa subclasses, and that there was no evidence that the applicant could satisfy the criteria for remaining student visa subclasses, the Delegate’s Decision was to be affirmed.[44]
[44] CB 109-110 at paras.23-25.

The application and grounds for judicial review

On 18 March 2014 the applicant lodged an application for judicial review of the Tribunal Decision with this Court. The grounds as they appear in the application are that:
1. There is an error of law on part of the Tribunal’s decision
2. Unreasonableness.
On 30 April 2014 the Court made orders that the applicant file and serve on or before 25 June 2014 an amended application giving particulars of the grounds of review, and any further affidavits upon which she intends to rely at the hearing. On 23 June 2014 the applicant filed Mr Bowman’s Affidavit and on 24 June 2014 filed Mr Wong’s Affidavit. The applicant did not file any amended application.

Applicant’s submissions

The applicant’s submissions, which did not specifically address the two grounds for judicial review in the application, were as follows:
a)the applicant is a Chinese national who first arrived in Perth in Western Australia from Guangzhou in China on 2 August 2013, under a multiple travel Visitor Visa granted on 22 May 2013. From the time of her arrival into Australia to the date of the Tribunal Decision the applicant has never left Perth in Western Australia, and has never been to New South Wales;[45]
b)the applicant wanted a visa to further her stay in Australia on the expiry of her Visitor Visa. She was then introduced to Mr Jiang, who represented himself as a migration agent and whom she thought she could trust to sort her visa arrangements. The applicant and Mr Jiang had never met;[46]
c)the applicant has a basic understanding of English, and was reliant on Mr Jiang for information and to process her Student Visa Application legitimately. A number of payments were made to Mr Jiang on various occasions;[47]
d)there is no evidence of Mr Jiang being a registered migration agent;[48]
e)Mr Jiang resorted to methods that are not in accordance with professional standards to assist the applicant in the Student Visa Application. Additionally, even though the applicant had rejected Mr Jiang’s initial suggestion to apply for a refugee visa, Mr Jiang had made submissions to the Delegate that the applicant was in need of a refugee visa;[49]
f)the applicant’s Student Visa Application contained a forged signature and an Australian residential address that the applicant had never lived at;[50]
g)the applicant was willing to abide by regulations and the law had she known that she could only apply for the Student Visa offshore;[51]
h)there is a possibility that Mr Jiang is not a migration agent;[52]
i)in the circumstances, the applicant submits that her Student Visa Application was made not according to her instructions. The Tribunal Decision was affected by fraud that was not taken into account. The documents had been forged and the applicant was not aware that the Student Visa Application had been made. Additionally, the applicant had all along been guided and manipulated by Mr Jiang in his own interests to make more money from the applicant; and
j)the applicant submits that despite her intentions to further her stay in Australia, she had only wanted to apply for the right visa legitimately. Her limited English language skills put her in a prejudicial and detrimental position throughout this process.
[45] Applicant’s Affidavit, paras.1 and 29; Mr Bowman’s Affidavit, paras.2-3; Mr Wong’s Affidavit, para.8.
[46] Applicant’s Affidavit, paras.2, 12 and 14; Mr Wong’s Affidavit, para.6. Whether this means that the applicant and Mr Jiang had never previously met or have not met in person is unclear, but is not material for present purposes.
[47] Applicant’s Affidavit, paras.4, 13 and 20; Mr Wong’s Affidavit, para.6.
[48] Mr Wong’s Affidavit, paras.11, 12 and 15.
[49] Applicant’s Affidavit, paras.6, 11, 19 and 25-28.
[50] CB 1-20; Applicant’s Affidavit, paras.15-17 and 29; Mr Wong’s Affidavit, paras.9, 10 and 18.
[51] Applicant’s Affidavit, para.12; Mr Wong’s Affidavit, paras.5-7.
[52] Mr Wong’s Affidavit, paras.12-14, 16 and 17.

Additional grounds for judicial review

Although not articulated as such, it is apparent that there are at least two additional grounds for judicial review arising from the applicant’s submissions. Those additional grounds – which will be treated as grounds 3 and 4 respectively – are that:
a)the circumstances, particularly those involving Mr Jiang, gave rise to a fraud on the Tribunal; and
b)there was, again because of the actions of Mr Jiang, no valid application for review.

Minister’s submissions

The Minister submits in relation to ground 1 that:
a)the applicant has not provided any particulars identifying any error of law alleged to have been made by the Tribunal in making its decision. In the absence of any particulars, this ground of application simply cannot be made out; and
b)further, and in any event, the Tribunal sets out the reasons for its decision in the Tribunal Decision, and this does not disclose any error of law on the part of the Tribunal. The Tribunal correctly stated the relevant law, and its reasons disclose no misunderstanding of the applicable law and do not disclose any misapplication of the law to the relevant facts.
The Minister submits in relation to ground 2 that:
a)the Tribunal’s reasons as set out in the Tribunal Decision also do not disclose that the Tribunal Decision was unreasonable in a Wednesbury[53] sense; and
b)rather, on the evidence and material that was before the Tribunal, the only decision that was reasonably open to it was to affirm the Delegate’s Decision not to grant the Student Visa to the applicant.
[53] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”).
In relation to ground 3 the Minister submits that:
a)Mr Wong’s evidence suggests that Mr Jiang is not a registered migration agent.[54] For the purposes of this application the Minister accepts that Mr Jiang is not a registered migration agent, there being no registered migration agent by that name in the records held by the Migration Agents Registration Authority;
[54] Mr Wong’s Affidavit, para.15.
b)the fact that Mr Jiang is not a registered migration agent does not mean that he committed a fraud on the applicant, or that his actions have resulted in a fraud on the Tribunal;
c)in SZFDE & Ors v Minister for Immigration and Citizenship & Anor[55] the appellants’ advisor also claimed to be a registered migration agent when he was not, and his reasons for advising the appellants not to attend the Tribunal hearing were found to be fraudulent;[56]
[55] (2007) 232 CLR 189; [2007] HCA 35 (“SZFDE”).
[56] SZFDE CLR at 204-206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, HCA at paras.40-42, 45-46 and 51 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
d)in SZFDE the High Court found that by reason of the fraud of the person claiming to be a migration agent, the Tribunal “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”.[57] The High Court further held hat this merited the description of “the practice of fraud “on” the Tribunal”,[58] with the consequence that the Tribunal Decision was regarded as no decision at all, because the jurisdiction remained constructively unexercised;[59]
[57] SZFDE CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.51 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
[58] SZFDE CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.51 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
[59] SZFDE CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.52 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
e)the mere fact that the person giving migration advice and assistance is not a registered migration agent, or that that person may have been fraudulent in his or her dealings with a visa applicant, does not necessarily result in the Tribunal being disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. As the Full Court of the Federal Court stated in Minister for Immigration & Citizenship v SZLIX:[60]
… SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process (emphasis added).[61]
f)here, Mr Jiang’s actions and advice to the applicant did not affect the Tribunal’s decision-making process. Mr Jiang had advised the applicant from the outset that the Student Visa Application had no chance of success, and unlike the appellants in SZFDE, the applicant did not fail to attend the Tribunal hearing as a result of fraudulent conduct by Mr Jiang in relation to her;
g)there will not be any jurisdictional error on the part of the Tribunal where the applicant for review has colluded in any fraud practised on the administrative decision-maker or the Tribunal on review;[62]
h)as with the appellant in SZLHP, the inference is irresistible that the applicant was aware that her conduct rendered her complicit in an attempt to deceive the Tribunal.[63] The applicant’s own evidence was that she was advised by Mr Jiang that the Student Visa Application would be refused as there was no chance of success, but that the lodging of the Student Visa Application and a subsequent application for review with the Tribunal was the best way for her to prolong her stay in Australia. The applicant’s own evidence therefore indicates that she was a willing participant in an illegitimate stratagem to enable her to remain longer in Australia;
i)although Mr Jiang suggested that the applicant not waste her money to attend the Tribunal hearing, he also advised her that she would not be successful in the Tribunal hearing in any case. There is no evidence by the applicant to suggest that Mr Jiang’s advice was fraudulent, or even negligent, or even that it was erroneous advice. The circumstances here are in stark contrast to the circumstances SZFDE where the decision of the appellants not to appear before the Tribunal was the result of the fraudulent conduct of the third party;
j)Mr Jiang’s advice to the applicant that the Student Visa Application had no chance of success and that an application to the Tribunal would also not be successful, was clearly correct. The applicant did not have any “exceptional reasons” for the grant of a Student Visa to her, and she has provided no evidence of any such exceptional reasons which she could have put before the Tribunal; and
k)the applicant’s Student Visa Application had no prospect of success because she was unable to meet the English language proficiency requirements for assessment level 4 applicable to holders of passports of the People’s Republic of China.[64]
[60] (2008) 245 ALR 501; [2008] FCAFC 17 (“SZLIX”).
[61] SZLIX ALR at 509-510 per Tamberlin, Finn and Dowsett JJ; FCAFC at para.33 per Tamberlin, Finn and Dowsett JJ.
[62] Citing SZLHP v Minister for Immigration & Citizenship & Anor (2008) 172 FCR 170 at 189 per Graham J; [2008] FCAFC 152 at para.87 per Graham J, with whom Lindgren J agreed FCR at 175; FCAFC at para.24 (see also FCR at 174-175 per Branson J; FCAFC at paras.17-21 per Branson J) (“SZLHP”).
[63] SZLHP FCR at 174 per Branson J; FCAFC at para.17 per Branson J.
[64] See regs.1.40(1) and 1.41(1) of the Migration Regulations; Minister’s specification under reg.1.40 dated 9 November 2012; Minister’s specification under reg.1.41(1) dated 21 March 2012; cl.572.223(2)(a) of the Migration Regulations and the former Division 2 of Part 4 of Schedule 5A to the Migration Regulations.
In relation to ground 4 the Minister submits that:
a)in SZLHP the Full Court of the Federal Court additionally found that there had been no jurisdictional error on the part of the Refugee Review Tribunal because no valid application for review had been made by the appellant to the Refugee Review Tribunal which it was required to review;[65]
b)the applicant has deposed that she did not sign any forms lodged at the Tribunal,[66] and submits that the Tribunal Decision was affected by fraud, and that the documents had been forged and the applicant was not aware that those applications were made.[67] The applicant, however, caused the Student Visa Application to be filled in, or it was otherwise filled in on her behalf, and thus the applicant is taken to have filled in the Student Visa Application under s.98 of the Migration Act;
c)further, prior to the making of the application to the Tribunal for merits review, the applicant was aware that Mr Jiang had lodged a Student Visa Application in her name which she had not seen or signed,[68] and in forwarding Mr Jiang the amount specified by Mr Jiang as the cost of a Tribunal application,[69] the applicant must be taken to have authorised Mr Jiang to make an application to the Tribunal and to sign her name on the application form. Accordingly, the application was a valid application made under s.412 of the Migration Act; and
d)alternatively, if the Court was to find that the applicant did not give Mr Jiang any such authority to make an application to the Tribunal for review of the Delegate’s Decision and did not authorise him to sign her name on the application form,[70] it must follow that the application to the Tribunal lodged by Mr Jiang was not a “valid application” made under s.412 of the Migration Act for review of the Delegate’s Decision, and accordingly there was no valid application which the Tribunal was required to review under s.414 of the Migration Act.[71]
[65] SZLHP FCR at 188, 189 and 190 per Graham J, and 175 per Lindgren J; FCAFC at paras.80, 85 and 89 per Graham J, and para.24 per Lindgren J.
[66] Applicant’s Affidavit, para.29.
[67] Applicant’s Outline of Submissions at para.9.
[68] Applicant’s Affidavit, paras.15-17.
[69] Applicant’s Affidavit, para.20.
[70] The Court is able to make its own assessment as to whether an application to the Tribunal is a valid application: see Minister for Immigration & Border Protection v Kim (2014) 221 FCR 523 at 528-529 per Yates, Robertson and Wigney JJ; [2014] FCAFC 47 at paras.25-29 per Yates, Robertson and Wigney JJ.
[71] The Court notes that the Minister’s submissions refer to statutory provisions concerning applications to the Refugee Review Tribunal, and not the Tribunal. See paras.44-45 below as to the statutory provisions concerning applications to the Tribunal.
The Minister further submits that:
a)even if the Court was to find that there had been jurisdictional error on the part of the Tribunal, the Court should exercise its discretion to refuse to grant relief. As set out above,[72] the applicant was a willing participant in an illegitimate stratagem to enable her to remain longer in Australia by having Mr Jiang lodge the Student Visa Application which he had advised had no chance of success; and
b)further, and in any event, to remit the matter back to the Tribunal for reconsideration would have no utility as the applicant has not shown any basis on which she could satisfy:
i)the exceptional reasons required by cl.572.227 of Schedule 2 to the Migration Regulations; and
ii)the English language proficiency requirements required by cl.572.223(2)(a) of Schedule 2 and Schedule 5A of the Migration Regulations.

Consideration

[72] See the Minister’s Submissions at para.20 above.

Ground 1 – error of law in the Tribunal Decision

Separate to the additional grounds of review in grounds 3 and 4 which are dealt with below,[73] no error of law is particularised in ground 1. Without particularisation the ground of review raises no arguable case for the relief claimed.[74] In any event, error of law alone is not sufficient to establish jurisdictional error.[75] Further, no error of law is discernible on the face of the Tribunal Decision. The Tribunal Decision:
a)sets out the relevant issue correctly;
b)states the law correctly;
c)states the facts correctly as they appeared on the evidence before the Tribunal; and
d)correctly applies the law to those facts.
The Tribunal Decision was open on the application of the law to those facts, and was the only decision properly open on those facts.
[73] See paras.28-46 below.
[74] WZATN v Minister for Immigration & Anor [2014] FCCA 861 at para.18 per Judge Lucev (“WZATN”).
[75] Craig v The State of South Australia (1995) 184 CLR 163 at 178-180 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 141 per Hayne J; [2000] HCA 57 at para.163 per Hayne J.
Ground 1 is therefore not made out.

Ground 2 – unreasonableness

Unreasonableness, in the sense referred to in Wednesbury, has traditionally been viewed as an abuse of power by the repository of the power. It is an extremely confined basis for jurisdictional error, requiring a purported exercise of power so unreasonable that no reasonable repository of the power could have made the decision concerned.[76] More recently, it has been held that in order to determine if the exercise of a statutory discretionary power is unreasonable in a Wednesbury sense, consideration is required of whether the dominant reason for the decision is outside the scope and purpose of the enactment or the policy considerations which legitimately form the exercise of the relevant discretionary power, but the exercise of the power must still be according to law.[77]
[76] Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35 per Brennan CJ, applied by this Court in Mushtaq v Minister for Immigration & Anor [2013] FCCA 198 at paras.31-32 per Judge F Turner.
[77] Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618 at 630 per French CJ, 634 per Hayne, Kiefel and Bell JJ; [2013] HCA 18 at para.26 per French CJ and para.47 per Hayne, Kiefel and Bell JJ.
The manner of the exercise of the Tribunal’s power and its application of the relevant law to the facts is set out above.[78] In the circumstances, and on the evidence available to it, the decision made with respect to the discretionary judgment as to whether exceptional circumstances existed, which is in any event an exceptionally wide and almost unlimited discretion,[79] was properly exercised within the extent of the power and purpose of cl.572.227 of Schedule 2 to the Migration Regulations. Unreasonableness is not established in relation to the Tribunal Decision on the basis of ground 2, and for reasons set out below,[80] grounds 3 and 4 do not establish unreasonableness in the Tribunal Decision. Furthermore, this ground is unparticularised, and as with ground 1, cannot establish an arguable basis for the relief sought without proper particularisation.[81]
[78] See paras.5-13 above.
[79] Kim at para.30 per Smith FM.
[80] See paras.28-46 below.
[81] WZATN at para.18 per Judge Lucev.
In the circumstances, ground 2 is not made out.

Ground 3 – whether the circumstances give rise to a fraud on the Tribunal

In SZSXT v Minister for Immigration & Border Protection & Anor[82] the Federal Court summarised the principles with respect to cases involving a third party’s fraud before the Tribunal, as follows:
[82] (2014) 222 FCR 73; [2014] FCAFC 40 (“SZSXT”).
SZFDE establishes the following principles (omitting case references):
(a) in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” (at [8]);
(b) different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution (at [11]);
(c) “fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith” (at [17]);
(d) in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud (at [20]);
(e) another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted” (at [22]);
(f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative (at [25]-[27]); and
(g) there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time (at [28]). But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised (at [51]-[52]).[83]
[83] SZSXT FCR at 82-83 per Perram, Robertson and Griffiths JJ; FCAFC at para.51 per Perram, Robertson and Griffiths JJ.
In SZQVV v Minister for Immigration & Citizenship & Anor[84] an applicant had repeatedly been told by a person assisting him that his application for judicial review had been lodged with the then Federal Magistrates Court when it had not been lodged. The Federal Court observed that:
In this case, the applicant’s participation in a decision-making process has been affected by the material dishonesty of another. It has caused the applicant to be prevented from engaging with that process as he would have wished, and sought to do, in reliance upon what ultimately turned out to be the arguably dishonest conduct of the assisting person. The material dishonesty of the assisting person has, in one sense, conveyed a false impression to the decision-maker that the applicant has chosen not to invoke the review jurisdiction of the tribunal within the prescribed time or has chosen to invoke it by simply making an application outside the prescribed time.[85]
[84] (2012) 130 ALD 472; [2012] FCA 871 (“SZQVV”).
[85] SZQVV ALD at 484 per Greenwood J; FCA at para.54 per Greenwood J.
It is necessary for an applicant who alleges fraud to demonstrate that the fraud of the third party concerned has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. The Full Court of the Federal Court has observed that the alleged fraud “must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant”.[86]
[86] SZLIX ALR at 500 per Tamberlin, Finn and Dowsett JJ; FCAFC at para.33 per Tamberlin, Finn and Dowsett JJ, citing SZFDE CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.51 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
In SZLHP the Full Court of the Federal Court was dealing with an appellant, a citizen of China, who had arrived in Australia on a false Indonesian passport and applied for a protection visa with the assistance of a migration agent. The migration agent told the appellant to advance false claims, which the appellant did, misrepresenting his identity, citizenship and personal history. The protection visa application was refused, and the false claims were repeated in an application made by the migration agent to the Tribunal. Further, the agent advised the appellant not to attend the Tribunal hearing lest his inability to speak Indonesian reveal that he was not a citizen of Indonesia (which he had claimed to be). The appellant cooperated with the migration agent by obtaining a medical certificate in an endeavour to explain his failure to appear. The Tribunal affirmed the decision under review.

Separate judgments were delivered by each of the members of the Full Court of the Federal Court in SZLHP. Justice Branson having observed that there was a “long established principle that courts do not allow a person to maintain an advantage obtained by the person’s own fraud”[87] found that the appellant had knowingly signed an application for a protection visa made in a false name and which falsely asserted that the appellant was an Indonesian citizen.[88] Justice Branson found that:
It may be accepted that the appellant, who had recently arrived in Australia and spoke no English, did not know how to apply for a protection visa. However, nothing in the evidence provides any basis for an inference that the appellant was not aware that his conduct rendered him complicit in an attempt to deceive whatever Australian authority was responsible for dealing with applications for protection visas. Indeed, it is clear that he was well aware that he was applying for a protection visa in a false name and on a false basis.[89]
and that:
The inference is irresistible that the appellant was aware that his conduct rendered him complicit in an attempt to deceive the Tribunal.[90]
[87] SZLHP FCR at 173 per Branson J; FCAFC at para.12 per Branson J, citing Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713 per Denning LJ.
[88] SZLHP FCR at 174 per Branson J; FCAFC at para.14 per Branson J.
[89] SZLHP FCR at 174 per Branson J; FCAFC at para.15 per Branson J.
[90] SZLHP FCR at 174 per Branson J; FCAFC at para.17 per Branson J.
SZFDE was distinguished because Justice Branson held that the appellants in SZFDE were not complicit in any attempt to deceive the Tribunal, whereas by contrast, the appellant in SZHLP had “knowingly embarked on a course of conduct calculated to deceive the relevant Australian authorities as to his true identity, citizenship and personal history.”[91]
[91] SZLHP FCR at 174 per Branson J; FCAFC at para.18 per Branson J.
Justice Branson went on in SZLHP to find that the appellant was not fraudulently deceived by the migration agent as to the true reason why the migration agent did not want him to attend the Tribunal, namely that the falsity of the grounds would be made plain, and in that sense there was no relevant fraud “on” the Tribunal in the sense discussed in SZFDE.[92] Justice Branson went further and said that there was also no error of principle in the finding in the Federal Magistrates Court that it would be appropriate to refuse discretionary relief to the appellant on the ground of “his own deceptive conduct”.[93]
[92] SZLHP FCR at 175 per Branson J; FCAFC at para.20 per Branson J.
[93] SZLHP FCR at 175 per Branson J; FCAFC at para.21 per Branson J.
Justice Lindgren in SZLHP found that:
The Federal Magistrate’s findings, properly understood, were to the effect that the appellant was a knowing, independent and voluntary co-perpetrator of the fraud on the Tribunal. On this basis, his Honour correctly distinguished SZFDE 232 CLR 189 (at [99]).[94]
[94] SZLHP FCR at 177 per Lindgren J; FCAFC at para.34 per Lindgren J.
Justice Graham in SZLHP held that unlike SZFDE “this was not case where a representation had been made to the appellant that was plainly false”[95] and summarised the matter as follows:
Viewing the matter as summarised above and bearing in mind, firstly, that the Minister’s delegate was not led into error, secondly, on the appellant’s own case, the Tribunal did not have a valid application for review before it, thirdly, the appellant did not want to go to a Tribunal hearing to tell the truth and fourthly, any wish that the appellant may have had to attend a Tribunal hearing was not frustrated by the provision and acceptance of advice which the migration agent did not genuinely and honestly believe to be sound when she gave it, I cannot see how it could be said that there was any fraud “on” the Minister or “on” the Tribunal so as to give rise to any jurisdictional error.
Even if there was such “fraud”, the appellant’s complicity in it would deny him the right to complain about it.
Finally, if there had been a case of jurisdictional error, I would take the view that the Court should not disturb the exercise by the learned Federal Magistrate of his discretion to refuse constitutional writ relief, as he did. The unwarranted delay and bad faith of the appellant militate in favour of a refusal of any such relief (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56]-[57]).[96]
[95] SZLHP FCR at 191 per Graham J; FCAFC at para.91 per Graham J.
[96] SZLHP FCR at 191 per Graham J; FCAFC at paras.92-94 per Graham J.
In this case, the applicant knew, from the time of her initial discussion with Mr Jiang, in or about October 2013, that the course that Mr Jiang proposed, and which she agreed to adopt, would be unsuccessful, but would prolong her stay in Australia, which was her intention. She therefore knew from the outset that her Student Visa Application was futile. The applicant was aware not only at the stage of initiating the Student Visa Application that it was likely to be unsuccessful, but also after the Delegate’s Decision, and before making the merits review application to the Tribunal.
The applicant’s stated reliance on the advice of Mr Jiang merely reinforces this fact. It does not matter that she assumed that Mr Jiang was a migration agent, because even if he was not, the applicant’s assertion that she only intended to ever act lawfully stands in contra-distinction to her actual actions which evince an intention to manipulate the application and review processes under the Migration Act. There was no evidence of manipulation of the applicant by Mr Jiang in this case, but rather a cynical bad faith exercise of the application and review process of which the applicant was aware and in which she was complicit. The outcome was precisely what the applicant was advised it would be by Mr Jiang. The applicant in this case is condemned by her own evidence which reveals her complicity in the course of conduct adopted by Mr Jiang, the sole purpose of which was to prolong the applicant’s stay in Australia in circumstances where she did not have any valid basis for the grant of her Student Visa Application. There is nothing in the evidence which, viewed through the prism of the applicant’s actual actions, would indicate that she would have acted any differently whether her advice came from a registered migration agent or not.
This is not a case in which the Tribunal’s performance of its imperative statutory function would have had a different result had the application been lodged by a registered migration agent, or had the applicant known that Mr Jiang was an unregistered migration agent.[97] The Student Visa Application in this case was hopeless from the outset, and the Tribunal Decision would have been the same (as would have the Delegate’s Decision) even if the applicant had made the application herself or it had been made by a registered migration agent. The latter may be deduced from the fact that the applicant believed Mr Jiang was a migration agent, and she acted on his advice in pursuit of her ulterior purpose, which was to stay in Australia.
[97] The matter was argued on the basis of a concession by the Minister that it could be assumed that Mr Jiang was not a registered migration agent.
As in SZLHP,[98] it may be accepted that the applicant, recently arrived in Australia and speaking little or no English, did not know how to apply for a protection visa. Nothing in the evidence, however, provides any basis for an inference that the applicant was not aware that her conduct rendered her complicit in an attempt to rort the visa application process by applying for a visa she knew she could not obtain, and then applying for a merits review of the decision not to grant her that visa.
[98] SZLHP FCR at 174 per Branson J; FCAFC at para.15 per Branson J.
Cases such as SZFDE, and other similar cases, are distinguishable in that in those cases the applicant otherwise did not know of the fraud on the Tribunal. Here, the applicant was part of that fraud, or at least the exercise of bad faith, and complicit in it from the outset and throughout the process leading to the Tribunal Decision. There was not a fraudulent omission vis-à-vis the applicant.[99]
[99] SZLIX ALR at 500 per Tamberlin, Finn and Dowsett JJ; FCAFC at para.33 per Tamberlin, Finn and Dowsett JJ, citing SZFDE CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.51 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
In all of the above circumstances there was no fraud on the Tribunal by way of a fraudulent omission vis-à-vis the applicant because the applicant was complicit in the fraud she now alleges. In those circumstances, ground 3 is not made out.

Ground 4 – requirement for a valid application for review

In SZLHP Justice Graham, with whom Justice Lindgren agreed,[100] observed as follows:
[100] SZLHP FCR at 177 per Lindgren J; FCAFC at para.34 per Lindgren J.
79 A decision to refuse to grant a protection visa was an RRT-reviewable decision under s 411(1)(c) of the Act. Section 414(1) of the Act required the Tribunal to review a decision of a delegate of the Minister, in relation to an application for a protection visa, if a “valid application” was made under s 412 of the Act for review of that decision.
Section 412 of the Act relevantly provided, for present purposes:
“412(1)An application for review of an RRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
… ”
…
80 Given the appellant's emphatic assertion that he only “signed it once” and that that occurred at his migration agent's house when he placed a signature, imitating that of the bearer of Denny Dendeng Kalalo's passport, on the Application for a Protection Visa (866), it follows that no valid Application for Review was ever made by the appellant to the Tribunal which it was required to review.[101]
[101] SZLHP FCR at 188-189 per Graham J; FCAFC at paras.79-80 per Graham J.
Following the rationale of a majority of the Full Court of the Federal Court in SZLHP, as this Court must,[102] it follows that in this case there can be no valid application for merits review which the Tribunal was required to review if the application to the Tribunal was required to be made by the applicant. In this case, s.347(2)(a) of the Migration Act requires that a MRT-reviewable decision covered by s.338(2)(a) of the Migration Act requires that an application for review may only be made by the non-citizen who is the subject of that decision, in this case, the applicant. The applicant’s application to the Tribunal was one which could be granted while the applicant was in the migration zone, if the applicant demonstrated exceptional cirumstances, and was therefore a MRT-reviewable decision, for the purposes of s.338(2)(a) of the Migration Act. An application for merits review by the Tribunal of such a MRT-reviewable decision was, by reason of s.347(2)(a) of the Migration Act one which, on the rationale in SZLHP, was required to be made by the applicant. It is common ground in this case that the merits review application to the Tribunal was not signed by the applicant. In those circumstances, following SZLHP, there was no valid application for review under s.347(2)(a) of the Migration Act, and therefore no requirement for the Tribunal to review the Delegate’s Decision.
[102] Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ, and noting the admonition in Minister for Immigration & Multicultural & Indigenous Affairsv SZANS (2005) 141 FCR 586 at 591 per Weinberg, Jacobson and Lander JJ; [2005] FCAFC 41 at para.38 per Weinberg, Jacobson and Lander JJ “Even if the Federal Magistrate was correct in holding that the judgment of Madgwick J was not binding upon him, he most certainly was not correct in refusing to follow it. The judicial comity which ought to apply between the Federal Magistrates Court and judgments of single judges of this Court (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this Court.”
The making of an application for review under s.347(2) of the Migration Act is to be distinguished from the making of an application under s.98 of the Migration Act. Section 98 of the Migration Act is a general provision, applicable to the making of visa applications, whilst s347(2) of the Migration Act is a specific provision applicable to the making of applications to the Tribunal for merits review. As such, s.98 of the Migration Act has no application to an application for review for the purposes of s.347(2) of the Migration Act.
In the absence of a valid application for merits review before the Tribunal there can be no jurisdictional error by the Tribunal which is judicially reviewable by this Court. Thus, ground 4 is not made out.

Exercise of the Court’s discretion

Having regard to the fact that what is now alleged to be a fraud on the Tribunal by Mr Jiang, the migration agent, was a course of conduct in which the applicant concurred and was complicit, the Court would not in any event exercise its discretion so as to grant prerogative relief. In particular, the Court considers that to grant the relief sought in this case would be inconsistent with the principle that does not allow a person to maintain an advantage obtained by a person’s own fraud.[103] There is no scope for judicial review where an applicant for judicial review has colluded in the alleged fraud said to have been visited upon the administrative decision-maker or review body.[104] Alternatively, the applicant has deliberately engaged in an exercise of bad faith in pursuing the Student Visa Application and the application for merits review before the Tribunal for an ulterior purpose, that is to prolong her stay in Australia, in circumstances where she knew that the Student Visa Application and the application to the Tribunal for merits review of the Delegate’s Decision had no prospects of success. The applicant’s bad faith militates against the grant of the relief sought.[105] That is so even though the applicant has not made a valid application for review by the Tribunal because the application was signed by Mr Jiang, and not by her. Ultimately, it makes no difference. On the evidence it is clearly open to infer that the applicant would have signed any application forwarded to her by Mr Jiang for signature, and would have done so in pursuit of her ulterior purpose of prolonging her stay in Australia.
[103] SZLHP FCR at 173 per Branson J and 189 per Graham J; FCAFC at para.12 per Branson J and para.87 per Graham J.
[104] SZFDE CLR at 200 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.28 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLHP FCR at 189 per Graham J; FCAFC at para.87 per Graham J.
[105] SZLHP FCR at 191 per Graham J. FCAFC at para.94 per Graham J (with whom Lindgren J agreed: FCR at 177 per Lindgren J; FCAFC at para.34 per Lindgren J).
A further reason for refusing to grant relief in this case is that the applicant has failed to put on any evidence which indicates that she may have any reasonable prospect of success in establishing before the Tribunal that there are “exceptional circumstances” warranting the grant of the Student Visa. It is open to the Court to infer that there are no “exceptional circumstances”, and that the grant of the relief sought, and subsequent remittal to the Tribunal for further consideration, would be an exercise in futility.[106]
[106] Hao Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at para.30 per Bennett J.
For the above reasons, therefore, the Court would not grant the relief sought in the application, in any event.

Conclusions and orders

The Court has concluded that the applicant has failed to establish any of the grounds of the application for judicial review, and has failed to establish any jurisdictional error in the Tribunal Decision. Further, the Court would not grant the relief sought in the exercise of the Court’s discretion because of the applicant’s fraud, alternatively bad faith, in the making of the Student Visa Application and application to the Tribunal for merits review, and also because it would be futile to do so in the absence of any evidence of exceptional circumstances. It follows that the application must be dismissed.
The Court will hear the parties as to costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:

Date: 3 December 2014