Chen v Minister for Immigration and Citizenship [2025] FCA 1285

Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 244

DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157; (2019) 271 FCR 342

DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs and Another [2024] FCAFC 75; (2024) 303 FCR 466

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398

Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Minister for Home Affairs v DUA16 [2019] FCAFC 221; (2019) 273 FCR 213

Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550

Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501

Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365

Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445

SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73

SZVHM v Minister for Immigration and Citizenship [2008] FCA 600; (2008) 170 FCR 211

Administrative and Constitutional Law and Human Rights

The Appellant appeared in person with the assistance of an interpreter

The Second Respondent filed a submitting notice, save as to costs

1. The first respondent's name be amended to "Minister for Immigration and Citizenship".
2. The appeal is dismissed.
3. The appellant is to pay the first respondent's costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. By a Notice of Appeal filed 3 July 2024 (the Application), Mr Min Chen, the appellant, seeks to appeal a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCA) of 6 June 2024: Chen v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 511 (Chen (No 2)). There, the primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm, on 31 January 2022, a decision of a delegate (the Delegate) of the first respondent (the Minister) to refuse Mr Chen a Student (Temporary) (class TU) Student (subclass 500) visa (Student Visa).
2. The core issue before this Court is whether a fraud was perpetrated upon the Tribunal. In Chen (No 2), Mr Chen sought to develop a case that his migration agent had (a) provided information to the Tribunal knowing that it had not been reviewed by her client; and (b) sought to conceal that fact by exerting "pressure[]" upon Mr Chen, or otherwise misleading him, so that he would not appear before the Tribunal. In effect, the Application seeks to re-agitate elements of those allegations. For the reasons that follow, his claims are without merit and should be dismissed.

Background: The Delegate's Decision, the Tribunal's Decision and Chen (No 2)

1. The appellant is a citizen of the Peoples' Republic of China. On 2 May 2019, he applied for a Student Visa. The "criteria" for the grant of such a visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and require, amongst other things, that applicants be enrolled in a course of study (cl 500.211(a); for persons who are not deemed to be a "secondary exchange student", "Foreign Affairs student" or "Defence student", "course of study" means "a full-time registered course": cl 500.111) and "a genuine applicant for entry and [temporary] stay as a student" (cl 500.212) as at the time of the relevant decision.

1. On 3 January 2020, the Delegate refused to grant Mr Chen a Student Visa because they were "not satisfied" that cl 500.212 of the Regulations was satisfied having regard to the factors set out in "Ministerial Direction No. 69 - Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications" (April, 2016) (the Delegate's Decision).

1. On 23 January 2020, Mr Chen applied to the Tribunal for review of the Delegate's Decision. For the purposes of that application, he engaged a migration agent, Ms Diane Dong Ying Chen (the Agent), as his "authorised representative".
2. On 5 August 2021, the Tribunal wrote to Mr Chen care of the Agent. It relevantly said:

As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

• enrolled in a registered course of study; and
• a genuine applicant for entry and stay as a student.

Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking 'Submit' on the Declaration page.

...

The written information requested in the Request for Student Visa Information form should be received by 19 August 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you cannot provide the information by 19 August 2021, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 19 August 2021 and it must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

(Emphasis in original).

1. Three comments ought to be made as to the content of such correspondence. First, for brevity, the "Request for Student Visa Information form" shall be referred to forthwith as "Form M17". Second, it is important to note that Mr Chen was required to provide the information requested by the Form M17 by 19 August 2021. Third, Form M17 asked the following question:

Section 2 - Hearing information

1. Do you and any other applicants consent to the Tribunal deciding the review without a hearing?

(see, in this respect, s 360(2) of the Migration Act 1958 (Cth) (in force August 2021) (the Act)).

1. Thereafter, the Agent prepared, with Mr Chen's assistance (see infra [38]), various documents which sought to persuade the Tribunal that her client met the requirements for a Student Visa. To do so, it appears the Agent (and her associates) and Mr Chen primarily communicated using the text-based communication application, "WeChat" (though it is alleged that communication was also conducted over telephone, including in the afternoon of 19 August 2021).
2. Between 4:59 pm and 5:05 pm AEST on 19 August 2021, the Agent sent to the Tribunal:

(1) a personal statement from Mr Chen, that sought "to provide more details regarding [his] circumstances and ... intention to study in Australia" (the Personal Statement);

(2) an "Overseas Student Confirmation-of-Enrolment" form (CoE), which had been issued by the Australian Department of Education on 14 February 2020 and identified that Mr Chen was then enrolled in a Bachelor of Nursing course at Torrens University Australia Limited (Torrens) that was to start on 17 February 2020 and end on 5 December 2021;

(3) three health practitioner's reports; and

(4) a Form M17, dated 19 August 2021 and signed by Mr Chen, which indicated, amongst other things, that he was not then enrolled in any course of study (his CoE having been cancelled due to alleged medical issues) and gave his consent for the Tribunal to decide his application for review without convening a hearing (the Completed Form M17).

1. The disclosures made in the Completed Form M17 as to the enrolment status of Mr Chen at 19 August 2021 were confirmed by the Tribunal on 12 October 2021, when it obtained information from the Provider Registration and International Student Management System which identified that Mr Chen's enrolment at Torrens had been cancelled on 14 April 2021.
2. Ten days later, on 22 October 2021, the Tribunal wrote to Mr Chen. It relevantly said:

... [W]e are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

The particulars of the information are:

• A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.

This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

You are invited to give comments on or respond to the above information in writing.

Your comments or response should be received by 5 November 2021. ...

(Emphasis in original).

1. On 4 November 2021, the Agent responded to the Tribunal in the following terms:

Dear Sir/Madam,

I refer to your email dated on 22 October 2021.

The applicant Mr. CHEN Min has been contacting Torrens University to re-enroll to his course.

Please refer to the attached screenshot of emails with the university.

Would you please kindly grant him 4 weeks of extension for him to obtain the confirmation of enrollment?

Kind regards

1. The Tribunal acceded to such request later that day. Amongst other things, it said:

On 4 November 2021 we received a request for an extension of time to provide the comments or response.

We have considered the request carefully and have agreed to grant an extension of time. The comments or response must now be received by 3 December 2021.

If we do not receive your comments or response by 3 December 2021, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

(Emphasis in original).

1. On 2 December 2021, the Agent sent the following email to the Tribunal:

Dear Terrie,

Thank you very much for your approval of extension for Mr. Min Chen.

Please be advised that Mr. Chen is unable to provide confirmation of enrolment at the moment.

Mr. Chen advised me that he had dispute with Torrens University in relation with the overdue tuition fee payment and he need more time to sort it out.

Kind regards

1. On 31 January 2022, the Tribunal determined to affirm the Delegate's Decision (the Tribunal's Decision); it did so on the papers and communicated its decision to Mr Chen two days later. The Tribunal's Decision addressed first, the Agent's request of 2 December 2021 and second, the substantive application lodged by Mr Chen on 23 January 2020. It relevantly concluded:

[18] To the extent that the agent's email of 2 December 2021 may be regarded as an application to postpone the review until such time as he resolves his fee dispute with Torrens and (by inference) secure re-enrolment in that or another course, the Tribunal declines to do so.

[19] The applicant has had ample time to sort out his fee issue with Torrens or, if he could not do so, to secure enrolment in another registered course of study. The fact that he has given no indication in his correspondence as to when the Tribunal could expect him to produce a current COE for that or any other course obviously does nothing to warrant a postponement.

...

[22] It is clear from his own documents that the applicant accepts that his enrolment in the Nursing course at Torrens was cancelled prior to 19 August 2021 and, absent any evidence from him to the contrary, it is reasonably clear that he is not enrolled in any other registered course of study at the time of this decision.

...

[27] Absent any evidence from the applicant to the contrary the Tribunal is entitled to and does infer that the applicant remains un-enrolled at the time of this decision. There is certainly no evidence before the Tribunal to suggest that the PRISMS record is incorrect and no other evidence or new information has been provided to establish that he is currently enrolled in a course of study.

[28] Therefore, on the evidence before it, the Tribunal is not satisfied that at the time of this decision the applicant is enrolled in a course of study. Clause 500.211 is not met in this case.

[29] Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met.

[30] As the applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa the decision under review must be affirmed.

1. On 4 March 2022, Mr Chen lodged an application for review of the Tribunal's Decision in the FCFCA. Such application was dismissed by Vasta J on 20 February 2023: see Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 244: although that decision was subsequently set aside by consent and remitted to the FCFCA: see Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1028.
2. On remitter, the appellant advanced two grounds of review: Chen (No 2) [7]. First, that there had been a "fraud on the Tribunal's procedure" associated with the conduct of the Agent. And second, that the Tribunal's Decision was affected by legal unreasonableness associated with its decision to refuse the extension of time application of 2 December 2021. On appeal, Mr Chen only sought to challenge the primary judge's decision vis-à-vis the first ground. As such, Chen (No 2) need not be recited in toto; it suffices to detail the case that was developed, and reasons that were given, as to the fraud that the Agent was said to have perpetrated "on" the Tribunal.
3. The import of that allegation is set out in the Particulars to an Amended Application for Review that was filed on 2 February 2024 and before the primary judge (see Chen (No 2) [7]):
   1. On 19 August 2021, the migration agent pressured the applicant to tick the box on the M17 Form indicating that the applicant would not attend the hearing so that the migration agent avoided criticism for their own conduct in submitting the applicant's personal statement to the Tribunal knowing the applicant's personal statement had been drafted by the migration agent and not reviewed by the applicant; and further and alternatively,
   2. On 19 August 2021, the migration agent knowingly misled the applicant by stating to the applicant that the applicant's participation in a hearing would prejudice the prospects of a successful outcome.

1. At the core of the foregoing lies the suggestion that the consent of Mr Chen, as recorded in the Completed Form M17, had been wrongfully procured by the pressure and deceit of the Agent. In other words, it was said that (a) the Agent had given the Personal Statement to the Tribunal without it first having been read or reviewed by Mr Chen; (b) the Agent wished to conceal that fact; and (c) the Agent sought to conceal that fact first, by pressuring the appellant to give his consent, as recorded in the Completed Form M17, to the Tribunal deciding the review on the papers and second, by (falsely) informing Mr Chen that his participation in any hearing would jeopardise his prospects of success. Various findings were made in relation to these issues.
2. His Honour first accepted that a "heavy burden" lay upon Mr Chen in seeking to "set aside an otherwise blameless decision of the Tribunal by reason of the alleged fraud of a third party" (at [10], citing SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445, 455 [51] (SZRUR)). In finding that that burden had not been discharged, his Honour referenced "inconsistences in the [appellant's] oral evidence" and adopted, "as correct", certain assertions "as to matters of fact and law" that were set out in the Minister's written outline of submissions (filed 26 April 2025), "insofar" as they "relate[d] to the interplay" as between the oral evidence of the appellant and other evidence that had previously been filed on his behalf: at [14].
3. The effect of those assertions appeared to be that:

(1) there were many inconsistencies in Mr Chen's evidence which, in turn, reflected poorly upon his credibility.

(2) the evidence suggested no more than that the Agent had drafted the Personal Statement and considered their drafting to reflect a compelling narrative of Mr Chen's case within the confines of his instructions.

(3) Mr Chen had read the Personal Statement before he signed and returned it to the Agent.

(4) the evidence did not disclose a reasonable basis for being satisfied that the Agent knew that, when Mr Chen signed the Personal Statement, he had not read or reviewed it.

(5) the evidence did not disclose that the Agent had pressured Mr Chen to not attend any hearing before the Tribunal - it rose no higher than the Agent casting a view (perhaps even a strong one) that the best option for Mr Chen was to not attend any such hearing.

1. In the result, the primary judge determined that even if the Agent had provided "what might be considered to have been bad advice", that was insufficient to constitute a fraud on the Tribunal which would justify the setting aside of its decision: at [15]. His Honour further accepted that "any alleged error [of the Agent] was immaterial, in the sense that even if the [appellant] had appeared before the Tribunal there was no realistic possibility that the Tribunal would have arrived at a different decision": at [16]. As Mr Chen did not hold a current CoE as at the time of the Tribunal's Decision, all that might have been done, had he so appeared, was to clarify the status of his alleged "dispute" with Torrens; nonetheless, his Honour considered there to be no evidence to support the suggestion that Mr Chen would have been able to do so or that he was, in fact, able to pay the university if his dispute could not be resolved: at [16] - [18].

1. It is appropriate to bear in mind the grounds upon which Mr Chen seeks to appeal the decision of the primary judge in Chen (No 2):
   1. The learned primary judge erred in law and in fact in his finding that the Administrative Appeals Tribunal was not tainted by the migration agent's fraud on its procedure where the migration agent acted on illegitimate, unreasonable, or improper grounds.

Particulars

1. An erroneous finding that the decision of the Tribunal could not be said to have been induced or in any way affected by the actions of the appellant's migration agent.

2. An erroneous finding that the migration agent provided what might be considered to be bad advice to the appellant, that is not enough to constitute a fraud on the Tribunal.

3. An erroneous finding that any alleged error was immaterial in that had the appellant appeared at the Tribunal there was no possibility that the decision would have been different.

4. The learned primary judge erred in law and in fact in arriving at finding which was perverse to the evidence.

Particulars

1. An erroneous finding that there was no evidence before the court to suggest that a reasonable decision maker in the position of the Tribunal would have been alerted to any possible fraud on the part of the appellant's migration agent.

1. Read together, those grounds ostensibly seek to raise the following questions:

(1) Did the Agent's "bad advice" to the appellant constitute "fraud"?

(2) If the answer to question (1) is "yes", what effect, if any, did that fraud have upon the Tribunal's Decision or the discharge of the Tribunal's imperative statutory functions?

1. In certain circumstances, the fraud of a third party may infect a decision of the Tribunal with jurisdictional error: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, 206 [51] - [52] (SZFDE); Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398, 408 - 409 [46] - [47], citing SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73, 82 - 83 [51] (SZSXT); DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157; (2019) 271 FCR 342, 344 [4]. Establishing such a matter is not easy (see, eg, SZFDE, 203 [38]) and a party who asserts as much bears a "heavy burden" (SZRUR, 455 [51]), for they must prove that the relevant third party'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" (Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554, 568 [52]; Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, 509 - 510 [33]).
2. SZFDE concerned a number of protection visa applicants. In 2002, they lodged an application with the Refugee Review Tribunal (RRT) for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse their visa applications. For the purposes of that application, the RRT invited the applicants to appear before it (per the obligation in s 425 of the Act to "invite the applicant to appear ... to give evidence and present arguments relating to the issues arising in relation to the decision under review"). A rogue, who wrongly claimed to be entitled to practise as a solicitor and migration agent, advised the applicants not to attend the hearing. That advice was followed. In rejecting the aforementioned visa applications, the RRT relied upon the applicants failure to appear: see SZFDE, 192 - 193 [1] - [6]; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365, 370 - 373 [7] - [24].
3. The High Court found that the adviser's dealings with the applicants were "fraudulent": at 206 [51]: and had the "immediate consequence of stultifying the operation" of a legislative scheme, established by provisions such as s 425 of the Act, "to afford natural justice to the [applicants]": at 205 - 206 [48] - [49]. As such, the relevant fraud had the effect of disabling the RRT "from "from the due discharge of its imperative statutory functions with respect to the conduct of the review": at 206 [51]: such that it could be said that there had also been a fraud "on" the RRT (which meant that its jurisdiction remained constructively unexercised: at 206 [52]). It is noted that the conclusion reached by the Court turned upon the "particular importance" of the specific scheme created by s 425 of the Act (and like provisions in Div 4, Pt 7 of the Act) for the conduct of reviews by the RRT (and the primacy of the natural justice hearing rule): at 207 [53].
4. Consideration ought also be afforded to the decision in Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 (DUA16). There, two "fast track" review applicants engaged a registered migration agent to provide written submissions on their behalf to the Immigration Assessment Authority (IAA). It was not in dispute that a fraud underlay that engagement because the agent had concealed, from her clients, her intention to use "pro forma" submissions. The submissions that were ultimately provided to the IAA contained incorrect and irrelevant information which was, by and large, disregarded by the relevant decision-maker. In each case, the IAA affirmed the decision under review: see DUA16, 555 - 556 [1] - [4]; Minister for Home Affairs v DUA16 [2019] FCAFC 221; (2019) 273 FCR 213, 216 - 220 [6] - [25] (DUA16 (Full Court)).
5. The High Court found that the fraud of the agent had not infected the decisions of the IAA with jurisdictional error because it neither prevented nor affected the authority's "duty to conduct a review in accordance with the process described in Div 3 [of Part 7AA of the Act] and to reach an outcome": at 561 [20]. In other words, although the agent's misconduct had "let her clients down[, it] did not prevent the [IAA] performing its statutory functions": DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs and Another [2024] FCAFC 75; (2024) 303 FCR 466, 473 [27]. As the Court noted (at 561 [18]), "as a ground of judicial review, fraud must affect a particular duty, function, or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense". It is noted that the Court also endorsed (at 562 [22]) the approach advanced by Griffiths J in DUA16 (Full Court), who had identified, amongst other things, the requirement to establish, in ascertaining whether a fraud had been perpetrated "on" the IAA, that the fraud had the immediate consequence of stultifying, subverting or disabling an "imperative" statutory function: see DUA16 (Full Court), 225 [56].
6. The difference between the circumstances which confronted the Court in DUA16 and SZFDE appears from paragraphs [14] and [15] of DUA16 (at 559 - 560). There, it was said:

[14] 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.

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

1. In this general context, counsel for the Minister, Mr McGlade, advanced the submission that "even duress by a migration agent (albeit not involving dishonest conduct) resulting in a person not attending a Tribunal hearing will not be enough to raise a fraud ground of review" (citing SZVHM v Minister for Immigration and Citizenship [2008] FCA 600; (2008) 170 FCR 211, 231 [52]). There is no need to venture any conclusion as to the correctness of that proposition at the present instant. It suffices to note that it is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud that warrants judicial intervention: SZSXT, 83 [52]; see also DUA16, 560 [15]. That being so, what can be accepted from the submissions of Mr McGlade is the following:

In summary, to establish fraud in the present context what is required is: (a) fraud by the migration agent; (b) a resulting stultification of the decision-making process; and (c) an absence of complicity in the fraud itself by the visa applicant ...

(see, eg, ANW18 v Minister for Immigration and Multicultural Affairs [2024] FCA 1008 [50], citing Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 [44] - [56]).

The appellant's case fails at a factual level

1. The subject matter of this appeal is the finding, by the primary judge, that Mr Chen's allegation of fraud failed at a factual level: see Chen (No 2) [14]. As has been noted, his Honour agreed with various submissions advanced by the Minister to the effect that, inter alia, there was no evidence that the Agent was aware that Mr Chen did not read or review the Personal Statement when he signed it - this removed the foundation that was said to undergird the allegation that the Agent had some dishonest motive to advise the appellant not to attend the Tribunal hearing.
2. In this context, the overwhelming and indeed, insurmountable, difficulty for Mr Chen is that he was unable to identify any error in the reasons of the primary judge in relation to the relevant findings of fact. It is acknowledged that the appellant appeared without legal representation at the hearing of this appeal (on 22 September 2025). Nonetheless, the circumstances are that the factual substratum of his case was found to not exist by the primary judge and no discernible basis was subsequently identified as to why those findings contained some appellable error(s).
3. That, in itself, is sufficient to dispose of the appeal.
4. Nevertheless, even if one were to put the reasoning developed in Chen (No 2) to one side and consider the evidence afresh, there is only one conclusion that could reasonably be reached.
5. As above, the crux of Mr Chen's case appears to rest upon the allegation that he had consented, per the Completed Form M17, to the Tribunal undertaking a review of his application "on the papers" because of the Agent's deceit and/or pressure - that, in turn, rested upon the allegation that the Agent was motivated to conceal the fact she had drafted the Personal Statement and given it to the Tribunal without it having been reviewed by Mr Chen. That cannot be sustained.
6. Before this Court, Mr Chen accepted that he had received the Personal Statement on 19 August 2021, and that, prior to signing it, he had read it "a little bit" and knew of its contents. So much is consistent with various answers given by Mr Chen in cross-examination before the primary judge, as well as his WeChat correspondence with the Agent during the month of August 2021.
7. Those messages record a process whereby the Agent undertook the preparation of the Personal Statement, during which she sought, from time to time, additional information from Mr Chen. At 10:43 am on 19 August 2021, she sent Mr Chen a message enclosing the Personal Statement which said, "Please read carefully and inform us if you want to revise the details." She added, "If there is no problem, please sign on the printed name. Thank you." It is apparent that some additional details were indeed required and, over the balance of the day, the Agent sought them from Mr Chen. Ultimately, Mr Chen signed the Personal Statement and sent it (as well as the Completed Form M17) to the Agent some four hours after it had first been sent to him.
8. In this respect, the evidence reveals nothing more than that the appellant received the Personal Statement, read it and returned it to the Agent over the balance of 19 August 2021. Rather than the Agent believing that her client had neither seen nor reviewed it, the only conclusion open is that she reasonably believed that he had, in fact, confirmed his statement after considering it. Indeed, Mr Chen's act of signing "on the printed name" suggested that he had "no problem" with the details and content of the statement. That finding has the consequence that the Agent's alleged motive for giving the "fraudulent" advice to Mr Chen to not attend any hearing before the Tribunal - namely, so as to "avoid[] criticism" for lodging the Personal Statement without it having been reviewed by the appellant (supra [19]) - is not borne out on the available facts.
9. It follows that the Court would have to assume that the Agent, for some unknown reason, would give misleading or defective advice to Mr Chen about his attending the Tribunal hearing. That would be mere speculation and, on any view, is insufficient of itself to establish an allegation of fraud. In this vein, it is noted that it was suggested upon the behalf of Mr Chen, albeit rather belatedly, that the motive of the Agent was to perform a service efficiently in order to render an account. That, however, was also mere speculation. That which appears from the WeChat messages is nothing more than that Mr Chen was provided with services by the Agent which involved, in large, the preparation of documents to support his application for review.
10. The exchange of messages also record that the Agent raised, on several occasions, the question of whether Mr Chen intended to attend at the Tribunal for a hearing. At 10:41 am on 19 August 2021, she advised him that "[i]f you can perform well based on the written documents provided, [your presence] will help the hearing ... Otherwise, ... if you don't perform well when answering their questions, your attendance won't help the hearing. Please consider it carefully". After having no received response to her question, the Agent sent a further message some four hours later: "Goodness! I told you. I've asked you to confirm whether to attend the hearing or not so that I can finish the form for you to sign. I cannot do the form without your confirmation! Do you understand?". Ultimately, Mr Chen said: "write that I'm not attending the hearing".
11. This evidence does not support the inference that the Agent's advice to Mr Chen (as to whether to appear before the Tribunal) was motivated by factors other than her honest view. In this, it should be observed that her advice was quite possibly correct. A perusal of Mr Chen's evidence before the primary judge and a consideration of his address to this Court fairly reveals that he is often quite inconsistent in what he says and, from time to time, contradicts earlier statements. Indeed, even if such advice could be characterised as "bad" or negligent, that does not thereby mean that a fraud had been perpetrated "on" the Tribunal: SZSXT, 83 [52]; DUA16, 560 [15].
12. In the result, whether reliance is placed on the findings in Chen (No 2) or the available evidence, Mr Chen's allegation that fraud was committed on him and the Tribunal must, necessarily, fail.

An aside: The effect, if any, of the alleged fraud of the Agent

1. Upon the assumption that the acts of the Agent were, in fact, fraudulent (cf supra [32] - [43]), a question arose as to what effect, if any, that fraud had upon the imperative statutory functions of the Tribunal or the decision it rendered on 31 January 2022: see supra [23] - [24].
2. On Mr Chen's case, the fraud of the Agent prevented him from appearing before the Tribunal. In this context, it was said that it would be erroneous to suggest that the Tribunal's Decision had not been affected by the fraud, or that there was no possibility that the Tribunal's Decision would have been different had the fraud not occurred (see supra [23]). It was also said, albeit before the primary judge, that the Agent's fraudulent dealings with the appellant had the effect of disabling the Tribunal from duly discharging an imperative statutory function - namely, to undertake any review of the Delegate's Decision in accordance with the natural justice hearing rule (as per Div 5, Pt 5 of the Act (as in force at 31 January 2022)). It is noted that the contents of that Division of the Act lays down the procedure for the conduct of reviews by the Tribunal and substantively mirrors the legislative scheme that was addressed in SZFDE (see supra [26]).
3. If the acts of the Agent were, indeed, fraudulent and, properly characterised, enjoined Mr Chen from appearing before the Tribunal to give evidence and present arguments relating to various issues arising vis-à-vis the Delegate's Decision, then it may reasonably be said that such fraud, by rendering the possibility of the appellant being heard moot, stifled the Tribunal's observance of the natural justice hearing rule (and, in turn, the legislative schema of Div 5, Pt 5 of the Act): SZFDE, 201 [30] - [31], 205 - 206 [48] - [51]. Contrary to a submission made by Mr McGlade, it is immaterial, in this context, that any appearance by Mr Chen before the Tribunal would not have altered the fact that he did not, at that time, meet the statutory criterion for a Student Visa (as set out by the Regulations). That fact should not be seen to excuse the decision-maker from having to accord the parties before it natural justice in the exercise of its review jurisdiction.
4. Mr McGlade's submission does, however, raise questions as to the "materiality" of the putative fraud of the Agent. Whilst it may be accepted that it would be unusual for a court to determine that there was no possibility that the Tribunal's Decision could have been different if the fraud had not eventuated: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321: it is also true that the facts of this case are atypical.
5. On any view, Mr Chen's application for a Student Visa before the Tribunal was doomed to fail: contrary to cl 500.211 of the Regulations, he was not enrolled in a relevant course of education at the relevant time. That being so, this is not a case where it might be said that there was some chance that he might have succeeded in obtaining a visa had he, in fact, attended the hearing.
6. It is noted, however, that an argument was advanced to the effect that, had Mr Chen appeared before the Tribunal, he might have elaborated upon the reasons for why he ought to be granted further time to make arrangements with his education provider. Although it is true, as Mr Chen accepted, that there is a degree of uncertainty vis-à-vis what would have transpired in relation to such extension of time request (if he had appeared), his prospects were, on any view, meagre given that the Agent had already sought further time and that had been granted. In addition, it is noted that the appellant was unable to offer any substantive evidence as to what information he would have provided to the Tribunal in order to explain his request: see Chen (No 2) [16].
7. At best, his case appears to be that he would have attended the hearing and, had he done so, for some reason that cannot be explained, he would have secured extra time to secure payment for his educational course, even though he did not then have the required money (and there being no evidence he could have obtained it). In that context, although the circumstances of this case render it arguable that the "fraud" allegedly perpetrated "on" the Tribunal was immaterial, it is unnecessary to make any such finding given the conclusions that have been reached above.

1. Mr Chen raised no ground which suggested the findings of fact by the primary judge contained any error; the appeal should be dismissed for that reason alone. Even if some error were shown, a review of the evidence as it evolved at trial rendered it impossible for Mr Chen to make out his case because, in short, it undermined his allegations of fraud by the Agent.
2. In the result, there is no foundation to the arguments advanced on appeal or the grounds in the Application. The orders of the Court should be that the appeal is dismissed and the appellant pay the first respondent's costs of the appeal.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.