Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1392

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 7 August 2019, the applicant, Sukhveer Singh, asked this Court to review a decision of the AAT. That decision affirmed a decision of the delegate not to give the applicant a student visa, but the AAT affirmed that decision because the applicant did not attend the hearing.
2. This matter, having been filed in August 2018, it seems, did not come before the Court until quite some time later, having been subsumed into the national migration docket before it ever went to a first court date hearing.
3. Even then, it was on 31 March 2025 when the Court registrar first made orders regarding the filing of material. That date of 31 March 2025 was nearly six and a half years after the applicant first filed his application.
4. The matter ended up coming into my docket to be heard today, 23 July 2025. That means it has been well over six and a half years that the applicant has had to wait for this Court to finally determine his application for review. That is an inordinate amount of time to wait, and, on behalf of the Court, I apologise to Mr Singh for this delay in being able to finalise the matter. It is partly because of that aspect that I am delivering the judgment ex tempore today.
5. The matter is unusual just simply on the face of it because the order of the AAT, that was sought to be reviewed, was one that dismissed the application because of a non-attendance. Now, when matters are dismissed because of non-attendance, the Tribunal is obligated to notify the applicant that it has dismissed the matter for non-attendance and give the applicant a further 14 days within which to file an application for reinstatement. That application then is considered. It can be granted, or it could be refused.
6. But, in this case, the applicant did not make any such application, and the Tribunal had not given its final decision on the matter before it was that the applicant lodged the present application for review.
7. On 13 May 2025, the applicant filed an amended application. That application had three grounds, the most serious of which was ground number 1. Ground number 1 was that "the Tribunal's decision to dismiss the applicant's application due to non-appearance and/or confirming the decision to dismiss his application had become tainted with jurisdictional error due to third party fraud on the part of the applicant's representative".
8. What has emerged from that allegation is the history of the matter. The applicant said that he engaged Zen Migration Agents and, specifically, a Mr Khatri to prepare his application. The applicant contends that Mr Khatri, whom he knew was not a lawyer and did not ever make any representation that he was a lawyer, was to not just prepare the documents and lodge them but he was then to appear and make representations both orally and, if need be, in writing to any decision-maker in relation to the granting of the visa.
9. The problem for the applicant is that the corroborating evidence, that is present, does not seem to confirm his account but, rather, speaks of another form of agreement. The agreement was not before this Court and whilst counsel for the Minister, in some ways, gave evidence from the bar table that the agreement was the subject of a notice to produce sent by the Minister, the fact is that the agreement has not been forthcoming.
10. Right at the end of the hearing, the counsel for the applicant told the Court that his instructions were that the agreement was a matter that was printed out and signed at the office of Mr Khatri and that the applicant did not get a copy.
11. Whilst this was not sworn evidence and again was evidence from the bar table, for reasons I will give later on, I have no confidence in accepting that explanation as being correct.
12. Nevertheless, the applicant claims that it was the agent who prepared the visa documentation. The application for the visa is reproduced at CB 11 and following. There is no contention that there is any falsity in that document. The applicant gave a postal address, a contact telephone number, a contact email address, and then under the heading "Authorised Recipient":

Does the applicant authorise another person to receive written correspondence on their behalf?

1. And the details of Mr Khatri, including his MAR number and his organisation were also on the application, and the email address of Mr Khatri was given as the email address that the Minister ought to use.
2. The application spoke of why it was that the applicant wished to have a student visa and supporting evidence of academic transcripts and a passport were also attached to that application.
3. The matter was considered by the delegate. The delegate refused the application because there was no evidence lodged with the application of supporting documents that would show that the applicant could subsist in Australia and pay his tuition fees. The delegate wrote:

As the applicant has failed to provide evidence of financial capacity as specified by legislative instrument, I am not satisfied the applicant meets the financial requirement for this visa as specified at regulation 500.214.

1. As that clause was not met, the application for a student visa was refused.
2. Now, that decision was notified to the agent. In evidence given today by the applicant, he said that the agent did notify him and tell him what the decision was and did explain that the application failed because the applicant did not provide documentation of financial capacity.
3. The applicant was asked what happened then, and he replied that the agent recommended that they go to the AAT for a merits review of that decision. The applicant was asked as to what was said about the financial documents.
4. The applicant said that the agent told him that when it was time for the AAT hearing, they would be able to give to the Tribunal those financial documents, and that that would be then considered by the AAT. The applicant was asked what he did to procure those documents. The applicant answered, "Nothing."
5. The applicant was asked why he did nothing, and he said that his agent did not tell him to get those documents. The applicant was reminded that he had said that the agent told him that those documents were needed by the applicant to put before the AAT and that the applicant was the obvious person to get those documents. The applicant was asked why he did not get those documents, and he could give no answer.
6. The applicant conceded that he was notified by the Tribunal that his hearing was to occur on 9 July. He was notified a week before, on 2 July, that the hearing would be in a week's time and he was notified on 8 July that his hearing would be the next day. The applicant testified that he contacted his agent and said that he had been notified by the AAT. He said that the agent told him that he did not have to worry about that and the agent would fix these things up.
7. When it was pointed out that such a comment by the agent flew in the face of his earlier advice that they needed the financial documents before they could launch a successful application before the AAT, the applicant testified that the agent did not bring that up again.
8. When asked why the applicant himself did not bring that up, given that that had been the advice and it was something that the applicant could do, again, he could give no explanation.
9. The applicant testified that on 11 July, he was contacted by the agent. That contact is annexure SS3 to the applicant's affidavit of 26 June 2025. That text message or email, sent by Mr Khatri to the applicant on 11 July at 5.51 pm, reads as follows:

Dear Sukhveer, AAT has finalised the application and, unfortunately, the application has not been successful at this stage. As the AAT has confirmed the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department's decision remains in force. If you think that the AAT's decision is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia. If you wish to apply for review, you must do so within 35 days of the date of the AAT decision.

The bridging visa associated with the visa application that was the subject of review will cease 35 days after that AAT decision if your bridging visa was granted on or after 19 November 2016 or 28 days after you are notified of our decision if your bridging visa was granted prior to 19 November 2016. Please find a copy of the decision from AAT for your reference. We have now performed in full all of the services described in our agreement to provide migration services including our complementary post lodgement advisory service. Please contact us urgently to discuss the decision or any further options in relation to this or any other visa matters. Thank you. Kind regards, Suraj Khatri.

1. Attached to that email was the cover letter from the AAT which says:

Dear Mr Khatri, I am writing in relation to an application for review by the migration and refugee division of the AAT. Please read the attached correspondence carefully, noting that we may require a response from you before a certain date. If you have any problems or are experiencing problems opening the documents attached to this email message, please contact us.

The enclosed documents are given to you as the authorised recipient of the applicant. As the authorised recipient, we are required to give you instead of the applicant any document that we would otherwise have given to the applicant. By providing you with these documents, we are taken to have given the documents to the applicant. You should ensure that the applicant is informed of the enclosed documents as soon as possible.

1. The letter was headed "Notification of Dismissal Decision", saying this:

On 19 June 2019, we sent a letter inviting you to attend a hearing on 9 July 2019 to give evidence and present arguments relating to the issues arising in your case. As you failed to attend the scheduled hearing, we have decided to dismiss your application for review. A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications. You may apply to us in writing for reinstatement of the application by 25 July 2019. In a reinstatement application, you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration in deciding whether your reinstatement application should be granted.

1. An explanatory note was also included as well as the decision of the AAT made on 9 July.
2. What the applicant said then happened was that he did contact the agent, but he did not open or review the attached documents himself. This means that the only thing that the applicant says that he actually read was what Mr Khatri had sent to him saying that the application had been dismissed and he needed to go to the FCC within 35 days.
3. He said that instead of reading any of the attached documents, he contacted the migration agent. The migration agent advised him to attend the office the following morning, 12 July 2019, so that he - the migration agent - could prepare the necessary application for judicial review in the FCC.
4. The applicant said that the agent confirmed that his fee for preparing the application would be $1200, payable in cash, and he said that he agreed to that in good faith, relying on the professional guidance and urgency of the matter. It should be noted that because Mr Khatri is not a lawyer, he could not prepare those documents. The applicant said that he paid $1200 in cash which he had sourced from a family friend whom he refers to as an uncle.
5. The applicant said that the agent provided the applicant with a completed application, the address of the Federal Circuit Court, and explained the procedure for filing the application. He said, as advised by the migration agent, he attended the Court and, trusting in the professional expertise, he signed and filed the application without reviewing its contents. He said that the migration agent did not inform him of what he had written in the application or the grounds of appeal. The migration agent further advised the applicant to inform him of any updates regarding the application.
6. Having filed that application on 7 August, he received a bridging visa on 9 August. He said that he forwarded that grant letter to the agent.
7. The applicant, in effect, says that these matters constituted fraud on the Tribunal.
8. The first aspect of the fraud is that the agreement, that he had with the migration agent, was that the migration agent would not only prepare the documents and lodge the documents but that the migration agent would be the person who represented the applicant at all times and for all hearings that may occur.
9. The fraud the applicant claims is that the agent did not ever have any intention of representing him at any hearings and the agent let him believe that this was the case and had taken his money to represent him even though he did not truly intend to actually represent the applicant.
10. The applicant said that the agent had caused the AAT to believe that it would be the applicant who would appear and give arguments as to why the visa ought be granted when the applicant was, under the agreement, never to be the person to present himself before the AAT and to answer any questions, and that the agent was to do everything.
11. The applicant said that this fraud caused the AAT to contact the applicant to tell him to present himself on 9 July when he was never to be the person to appear and, when it was that the agent did not appear, the AAT made the decision to dismiss the application for non-appearance by the applicant when, in truth, it was always to be the representative who was to appear and not the applicant.
12. This fraud upon the Tribunal caused them to make the decision on 9 July.
13. The second fraud is that the agent did not inform him that the AAT had written to him and given him until 25 July 2019 to make an application for reinstatement of his AAT application. In not informing the applicant that this was a proposal by the AAT, the agent committed a fraud upon the Tribunal by allowing them to believe that the applicant was not desirous of reinstating his application when, in truth, the applicant was desirous but, because the agent had not informed him and had instead suggested going to the Federal Circuit Court, had caused the Tribunal to believe that the applicant was not willing to submit an application for reinstatement.
14. Because of this fraud, after 25 July 2019, the Tribunal dismissed the matter and therefore froze the applicant out of merits review.
15. I do note that it actually was not until sometime in September 2019 that the Tribunal actually made that decision, notwithstanding that the applicant filed the application before this Court on 7 August and the AAT lodged a notice of address for service on 22 August 2019, which was before it had formally made the decision to dismiss the application because of the applicant not applying for reinstatement of the previously dismissed application.
16. It is trite to say that if the decision of the Tribunal was one that was obtained because of fraud on behalf of a third party with which the applicant had no involvement and was an innocent party, then there will be a jurisdictional error such that the decision of the Tribunal would be infected and be without jurisdiction. But an allegation of fraud is extremely serious and it is a very high bar for an applicant to jump.
17. In this matter, I am not satisfied that the applicant has proved that there was a fraud. I say this because, to start with, I am not satisfied that the agreement that the applicant entered into with the migration agent was for the migration agent to appear at any hearing. The migration agent is not a lawyer and there is nothing to say that he has ever presented himself as having those skills that are used in arguing matters before delegates or Tribunals. In many respects, the experience of this Court is that most migration agents act, in effect, as a mailbox so that important material is given to an agent and then notified to an applicant who may be, because of their circumstances, travelling about and not always contactable in the ways in which the department would insist on being able to be contacted.
18. This seems to be in keeping with what is at the end of that email sent by Mr Khatri on 11 July, that is, that his firm "has now performed in full all of the services described in their agreement to provide migration services including a complementary post lodgement advisory service". One wonders why there would be a need for "post lodgement advisory service" if the intention of the agreement was for the agent to be the person continuing to look after and advocate on behalf of the applicant.
19. If the agreement was such that this was simply the agent lodging the material and making sure all things were filed to the appropriate body, that would explain why it is that it was the agent who contacted the applicant and told him that the delegate had refused the visa. It would explain why it was that the agent told him that the reason for this was that there was no evidence of financial capacity, and it would explain why it was that the agent said that this evidence would be needed so as to have a chance of being successful at the AAT.
20. This would explain why it is that the agent then left the applicant to his own devices to go and procure that material. It would explain why it was that the AAT contacted the applicant on 2 July and then again on 8 July, reminding him that he had a hearing on 9 July.
21. The applicant's evidence that he contacted the agent who said, "Do not worry about it," does not ring true. It flies in the face of everything that the agent had said or done up to that point. If one again looks at the email that was sent by the agent on 11 July, one would query why it is that the agent is speaking of completing his services when the process may very well not be finished at all.
22. As it is that the applicant has to prove the element of fraud, it is a task at which he has well and truly failed.
23. Whilst it is that the agent, in sending the email of 11 July, did not let the applicant know of the reinstatement possibility by 25 July (which may very well be exactly in accordance with what one has expected in that the agent is no more than the post-box, sending material along), the applicant could not give a satisfactory explanation why it was that he did not open any of the attached material. The attached material clearly spoke of the reinstatement application.
24. The applicant has attempted to paint himself out as someone who desires to have a student visa and desires to study in this country and yet has done nothing for himself. He has not procured any documents even though he knows that he needs those documents to show financial capacity. He is sent material, which is obviously important, from his agent and chooses not to open them himself.
25. The contention that the applicant is a victim of fraud is a contention that the Court simply cannot accept, and it flies in the face of ordinary commonsense. The applicant's evidence that the agent told him to bring $1200 is also something where there is no record. There is no phone record which could have been gathered to show that, after the AAT contacted the applicant on 2 July and 8 July, he phoned the agent. A phone record would show that.
26. A phone record would show that he phoned the applicant on the night of 11 July when he says that the agent told him to come the very next day with $1200 in cash. The applicant says that in giving the cash to the agent, the agent gave him the materials to file at the Federal Circuit Court. There is no explanation then as to why, if he was given those materials on 12 July as he says he was, that it took until 7 August for the applicant to actually file that material in the Federal Circuit Court.
27. If it was that he trusted everything that had been given to him by the agent, that means he waited some 26 days or so before filing it. Again, there is no explanation for this circumstance.
28. There has also been no contact between the applicant and Mr Khatri and no summons to Mr Khatri to appear at this Court. I have already spoken about the agreement not being present and, all in all, the Court is not satisfied that there has been any fraud that has been perpetrated.
29. The Court is not satisfied that the decision of the Tribunal on 9 July and, realistically, any decision after 25 July has been infected by jurisdictional error because of third party fraud. Therefore, ground 1 of the application fails.
30. Ground 2 of the application is that "the Tribunal's decision to dismiss the applicant's application due to non-appearance and/or confirming the decision to dismiss his application became tainted with jurisdictional error as the applicant did not receive a fair opportunity to present his case. As such, the applicant did not receive a fair hearing, and the decision was not a bona fide attempt to exercise the Tribunal's power".
31. It is clear, even on the applicant's evidence, that he did receive that fair opportunity.
32. He was notified on 2 July and 8 July that he needed to turn up. He was told by his agent that he needed to have evidence of financial capacity. He did have a fair opportunity to present his case. He was given the letters sent by the Tribunal on 11 July. They were given to him, and the attachments were given to him. He made the choice not to open those attachments. The agent did not tell him, "Do not open the attachment." The agent told him that the attachments were there. The applicant has not said why it was that he did not open the attachments but, nevertheless, it cannot be said that the Tribunal did not give the applicant a fair opportunity.
33. The Tribunal has complied with all of its obligations under the Migration Act, and there is no cavil with that.
34. The applicant raises the matter of SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481 ("SCAR"). In that case, an applicant who appeared before a Tribunal was suffering from mental illness and was medically distressed and the Tribunal, even though it acted in an exemplary manner, did not conduct a fair hearing because of the peculiar circumstances of that applicant.
35. The applicant submits that his case is in a similar vein in that the Tribunal, whilst acting properly and in an exemplary way, did not take into account matters of the applicant in that, if not induced by fraud, it was a matter where the agent had misled the applicant to not understand that he could make an application for reinstatement and the Tribunal did not then conduct the hearing fairly.
36. This is quite a different case to SCAR and, in this case, the applicant was given that opportunity. He was notified of the Tribunal's matters himself and could have done something about it, but he, himself, chose not to open the attachments. That puts him in a totally different situation to what the Court is looking at in SCAR. Ground 2 illustrates no jurisdictional error, and it fails.
37. Ground 3 is put in these terms:

There is a duty on the Tribunal to consider the applicant's circumstances prior to dismissing his application. By failing to discharge that duty, the Tribunal fell into jurisdictional error.

1. The Tribunal did not fall into jurisdictional error at all. The Tribunal has given the applicant every opportunity. As I have found, the applicant was not a victim of fraud. The applicant was someone who held his destiny in his own hands. The applicant was told that he needed to get financial documents, and he did not do so. The applicant was reminded on two occasions that he was to attend the hearing, and he chose not to. If I did not make it clear before, I make it clear now that I do not accept that the applicant phoned his agent after receiving those notifications, and I certainly do not accept that his agent told him not to worry about it.
2. Even though the agent seems to have misunderstood that there was still an opportunity to go back to the Tribunal and ask for reinstatement, nevertheless, the applicant was provided with that material, and he chose not to read it.
3. In all of those circumstances, it cannot be said that the Tribunal failed to understand the nature of the applicant; instead, it gave him every opportunity. Ground 3 illustrates no jurisdictional error, and it fails.
4. This means that the Court is in a position where the only possible outcome, having given its reasons, is that the application is dismissed with costs fixed in the sum of $8371.30.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta.