Khan v Minister for Immigration and Multicultural Affairs

1. The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2. The application for leave to appeal lodged on 29 December 2023 is dismissed.
3. The applicant is to pay the Minister's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCELWAINE J 1 The applicant seeks leave to appeal from a decision of the Federal Circuit and Family Court of Australia, published on 14 December 2023, which dismissed his application for de novo review of a decision of the registrar of that court, who in turn summarily dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), see Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1195, a decision of Judge Young. The single issue before the Tribunal on review was whether the applicant satisfied a necessary criteria for the grant of a Student (Temporary) (Class TU) visa (student visa), under s 65 of the Migration Act 1958 (Cth) (the Act). A delegate of the Minister refused the application because the applicant failed to demonstrate that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student: see clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). 2 On 10 February 2022, the applicant applied to the Tribunal for merits review. On 15 February 2023, for reasons then published, the Tribunal affirmed the decision of the delegate. The Tribunal concluded as an objective fact that the applicant did not hold a current certificate of enrolment in a registered course of study. The Tribunal comprehensively considered the evidence before it to reach that conclusion, noting at [29] the long history of enrolment by the applicant and then cancellation or non-attendance for 10 courses at various institutions commencing in November 2020 and concluding in October 2022. The Tribunal found as an objective fact that as at 20 October 2022, the applicant was not enrolled in any course of study and was not so enrolled at the time of the Tribunal decision. 3 The applicant, being dissatisfied with the decision of the Tribunal, filed a review application in the Federal Circuit and Family Court of Australia on 9 March 2023. In response, on 2 May 2023, the Minister applied for summary dismissal which a registrar granted on 5 October 2023. Once again, the applicant was dissatisfied. On 17 October 2023, the applicant exercised his right to apply for de novo review to a judge of the Federal Circuit and Family Court of Australia. 4 Judge Young heard the review application on 27 October 2023 and for comprehensive reasons published on 14 December 2023 summarily dismissed it as having no reasonable prospect of success on any of the three grounds (with multiple particulars) framed in the application. An additional contention of fraud by a purported migration agent that the applicant raised was permitted to argue at the hearing. On 29 December 2023, the applicant lodged his present application for leave to appeal with this Court and with it his affidavit of 29 December 2023, in which he described his occupation as a taxi driver. The affidavit repeats the fraud contention which the primary judge found to be without merit. 5 The grounds relied on in this Court are largely unintelligible, contrary to the plain facts and proceed on the applicant's misconception that it is sufficient for him to genuinely intend to enrol in an unspecified course of study with a registered provider to qualify for the grant of a student visa. He has been disabused of that misconception by the Tribunal, the registrar of the Federal Circuit and Family Court of Australia and by the primary judge. Nonetheless, he persists. 6 The applicant has also demonstrated a lack of understanding in his present application as to what is required to be established to engage the discretion to grant leave to appeal pursuant to rule 35.11 of the Federal Court Rules 2011 (Cth) (Rules). The issue is whether the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave, and that substantial injustice would result if leave is refused: see Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655. The proposed grounds of appeal are totally without merit. This is a case where I am in complete agreement with the reasons of the primary judge, which is of itself sufficient to refuse leave in accordance with the approach of Gleeson CJ in the New South Wales Court of Appeal in Nathan Ltd v Rossington Holdings Pty Ltd [1992] NSWCA 137. 7 Gleeson CJ, in a very short judgment in that case, proceeded as follows: Having listened to the interesting argument advanced by senior counsel for the appellant, I find myself in complete agreement with the judgment of McLelland J and with his Honour's reasons for judgment. For those reasons which, for the purposes of this appeal, I adopt as my own, I consider the appeal should be dismissed with costs. 8 Clarke and Handley JJA each agreed. However, so that the applicant, principally by reason of his non-attendance at the hearing, is under no misunderstanding as to why there is no merit in his application for leave to appeal, I provide the following elaboration, primarily by reference to the Minister's submissions which I have considered and which are correct. 9 Interpolating from the grounds of the application, the first ground is a contention that the primary judge erred in law and fact, just which is not particularised, in failing to find that the decision of the Tribunal was affected by jurisdictional error and the Tribunal misapplied the Regulations and/or the Act. That is the opening statement for what then appears to be a series of dot point particulars under ground 1. 10 The first dot point is that the Tribunal and the primary judge erred in law and/or in fact and thereby committed jurisdictional error when it summarily dismissed and discounted the evidence presented by the applicant that indicated that his claims were genuine. I have some difficulty in understanding what error is said to be exposed by the framing of that ground and the particulars. The Minister's submissions proceed on the understanding that it really is a contention, unparticularised by reference to error or any specific evidence, whereby it is said that the Tribunal failed to have regard to a material matter. What is clear from reading the Tribunal's decision is that it comprehensively considered all the applicant's evidence, but found as the objective fact and by reference to records maintained for this purpose by the Australian Government, that as at 20 October 2022, the applicant was not enrolled in an approved course of study. The Tribunal found that to be fatal to the success of the review application. Therefore, that claim is without merit. 11 The second particular under this ground, again without reference to the material that is relied upon, contends that the Tribunal and the primary judge considered unspecified irrelevant matters and failed to take into account relevant matters. There is no basis at all to support that contention. I apprehend that it has been cut and pasted from somewhere on the internet without a proper understanding of what is required to be established to make it out. 12 The third is an assertion that the Tribunal and the primary judge failed to properly or adequately investigate the applicant's claim that he had a genuine intention of "achieving" the student visa. The applicant in the materials describes himself as a genuine applicant. That reveals his misconception. The fact is he did not have the status of being enrolled in a registered course of study, and therefore, did not satisfy cl 500.211 of Schedule 2 to the Regulations. It is irrelevant to contend that the Tribunal was required to engage with the second requirement. That is, whether he was a genuine applicant for entry and study as a student. The applicant was required to satisfy each criterion, and he failed to satisfy the first. 13 The second proposed appeal ground contends that the Tribunal and/or the primary judge, once again erred in law and/or in fact without particularising what is meant, and thereby committed jurisdictional error in failing to give proper consideration and weight to the evidence presented by the applicant with respect to, first, his proof of not having enrolment confirmation in a registered course of study, and the evidence showing that he did not have a confirmation of enrolment at the time of the application to the Tribunal. The mere expression of those grounds reveals why they have no prospect of success. By drafting them in this way, the applicant clearly accepts that he did not satisfy the necessary criteria. There is no merit in this ground. 14 Ground 3 is a rolled-up contention that there was a failure to provide procedural fairness in the way the Tribunal conducted the proceeding. There are three sub-parts to this ground. First, an allegation that the Tribunal denied to the applicant the right to seek further time to respond. Second, that the Tribunal made a decision without inquiring into the circumstances of the applicant's case and without providing an opportunity to present his case, which it is also said gives rise to a reasonable apprehension of bias. Thirdly, that the Tribunal did not take relevant considerations into account. 15 As to the first, there is no evidence that the applicant requested the Tribunal to delay its decision. The fact is, he had been on notice since 25 November 2022 that it was a requirement for the grant of the visa that he would be enrolled in a registered course of study. He failed to adduce evidence that he was. The assertion in the second that is said to give rise to a reasonable apprehension of bias is misconceived. By reason of the operation of the provisions of s 359 of the Act, cascading through ss 359C, 360 and 363A, the failure of the applicant to respond to the initial correspondence sent pursuant to s 359(2), disentitled him to appear before the Tribunal to present his case. There is no merit in the applicant's contention. 16 The final contention is unparticularised as to what it is said the Tribunal failed to consider. There is no merit in an unparticularised contention of that type. Once again (and without specifying it in his application for leave to appeal but as set out in his supporting affidavit made on 29 December 2023) there is a contention that the Tribunal process was affected by the fraud of a person who the applicant contends masqueraded as, but was not, a registered migration agent. The Minister's submissions, even though this allegation is not set out in the application for leave to appeal, nonetheless comprehensively address this point. 17 The Minister is correct in the submission at [38] in each of these propositions. That is, establishing jurisdictional error based on fraud requires that: (a) A third party has engaged in of some form of deliberately dishonest conduct. As fraud is a serious allegation, cogent evidence is required to establish that allegation on the balance of probabilities. See SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35, at [48]-[51]; (b) Where fraudulent conduct is to be determined by inference from documentary evidence, that fraudulent conduct must be the most probable inference from the evidence. If it is more or equally probable that the conduct was merely negligent or the result of an honest mistake or oversight, then the conclusion that conduct is fraudulent will not be drawn. See Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17, at [30]; (c) Consideration of the effect of the fraud on the Tribunal's decision-making process is essential. It is not sufficient that there be some dishonest conduct that detrimentally affected the applicant. The dishonest conduct must have affected the proper functioning of the statutory process of review. See SZFDE at [47] and Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141 at [52]; and (d) The applicant must show that he was an innocent victim who was not "indifferent" to the fraudulent conduct. See Kaur v Minister for Immigration and Border Protection [2021] FCA 1026. 18 Judge Young dealt with the same contention, although it appears that not each aspect of it is now pressed by the applicant in his affidavit. Her Honour did so pellucidly and with attention to detail at [65]- [102] of her Honour's reasons which are clearly correct by reference to the correct principles of law and her Honour's comprehensive analysis of the facts. I adopt her Honour's reasons as my own to the extent that one can now understand the fraud application to be pressed in the applicant's affidavit. I conclude, like her Honour did, that there is no merit whatsoever in this contention. For these reasons, I make the following orders: (1) The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs. (2) The application for leave to appeal lodged on 29 December 2023 is dismissed. (3) The applicant is to pay the Minister's costs of the application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.