Federal Court of Australia

Ellahi v Minister for Immigration and Citizenship [2025] FCA 549

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be changed to ‘Minister for Immigration and Citizenship’.

2.    The application is dismissed.

3.    The applicant is to pay the respondent’s costs as agreed or assessed.

4.    Subject to further order, pursuant to section 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth), on the ground set out in section 37AG(1)(a) of that Act, the evidence given by the applicant on 9 October 2024 at transcript page 32 lines 10 to 20 is prohibited from publication and may not be used in any other proceeding.

5.    Unless the parties are agreed and provide an agreed submission on the issue:

(a)    on or before 4pm on 9 June 2025, the applicant is to file and serve submissions (limited to 5 pages) and any evidence on whether order 4 of these orders should be extended and if so, on what basis;

(b)    on or before 4pm on 23 June 2025, the respondent is to file and serve submissions (limited to 5 pages) and any evidence in response; and

(c)    on or before 4pm on 30 June 2025, the applicant is to file and serve any submission (limited to 3 pages) and evidence in reply.

THE COURT NOTES THAT:

6.    Order 4 of these orders extends the protection that had been afforded to the applicant until the delivery of final judgment by order 1 of the orders made on 30 October 2024.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Hammad Ellahi, is a male citizen of Pakistan. On 22 February 2015, Mr Ellahi came to Australia on a Subclass 500 student visa (first student visa). On 21 April 2018, Mr Ellahi was granted a further student visa (second student visa).

2    On 15 February 2020, a third application for a student visa was made in Mr Ellahi’s name (the third visa application). On 13 August 2021, the third visa application was refused by a delegate of the respondent, the Minister for Immigration and Citizenship, on the ground that clause 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) was not met. In short, the delegate was satisfied that there was evidence that Mr Ellahi had given, or caused to be given, a bogus document in relation to his third student visa application and that, as a consequence, he failed to satisfy Public Interest Criterion (PIC) 4020(1) of Schedule 4 to the Migration Regulations.

3    Mr Ellahi seeks a declaration that the third visa application was invalid on the basis that:

(1)    his agent, Ms Anum Khalil, acted fraudulently by providing, without his authority, a bogus document to the Department of Home Affairs in support of the application; and

(2)    he was neither complicit in the fraud, nor recklessly indifferent to the use of unlawful or dishonest means, by Ms Khalil.

4    In this regard, it is agreed that Mr Ellahi engaged Ms Khalil to apply for the third student visa, but that at no time had Ms Khalil been registered as a migration agent by the Office of the Migration Agents Registration Authority.

5    The Minister, however, contends that relief should be refused in the exercise of discretion on the basis that the declaratory relief sought by Mr Ellahi could have no foreseeable consequences for the parties and there is no practical purpose to be served by the grant of such relief. In the alternative, the Minister submits that Mr Ellahi failed to discharge his onus of proving that he was neither complicit in Ms Khalil’s fraud nor recklessly indifferent as to whether she used unlawful or dishonest means to apply for his third student visa. As an aspect of this, the Minister contends that Mr Ellahi’s main purpose remaining in Australia is to work and not to study.

6    For the reasons set out below, the application for declaratory relief must be dismissed. First, even if Mr Ellahi were otherwise to succeed, I would refuse declaratory relief in the exercise of discretion on the ground that it lacks any practical utility. Secondly, and in any event, Mr Ellahi has failed to discharge his onus of proving that he was not recklessly indifferent in the relevant sense.

7    Before turning to my reasons, I note that I expressed concerns on a number of occasions about the utility of the present proceedings and whether the costs and resources being expended, including this Court’s resources, were proportionate to what was ultimately in issue. From a practical standpoint, at best, these proceedings could have resulted in a decision that Mr Ellahi was not precluded for a three-year period (which expired prior to the completion of this hearing) from making a fourth application for a student visa for a course that has been superseded. Added to this, the parties were agreed that the document in question was a bogus document, and no finding was made (or needed to be made) by the delegate that Mr Ellahi knew that the document was bogus. Yet, while originally listed for two days, the claim was ultimately heard across five hearing days, namely on 11 and 12 March 2024, 30 April 2024 (when the hearing was adjourned), and 9 and 30 October 2024.

8    The costs and delays of this proceeding were attributable in large part to:

(1)    the late provision of voluminous documents including the late filing of a bundle of documents over 1400 pages on Friday 26 April 2024 otherwise than in chronological form and where the relationship between that bundle and the court book that had already been filed was not clear, leading to the hearing on 30 April 2024 being adjourned;

(2)    multiple steps before and during the hearing to obtain further documents through subpoenas, discovery and notices to produce; and

(3)    the parties being referred to mediation by orders made at a case management hearing on 9 May 2024 to endeavour to find a practical resolution to the issues or, at the very least, to reduce the matters in issue, given my concerns about proportionality.

9    I note that these matters may have a bearing on the quantum of costs properly recoverable on a taxation, should that ultimately be necessary.

2.    BACKGROUND

10    Save where I otherwise identify, the facts below are drawn from the statement of agreed facts.

2.1    Mr Ellahi’s first student visa in 2015

11    Mr Ellahi completed High School in Pakistan in 2012/2013.

12    In January 2013, Mr Ellahi completed three of fourteen modules of a “Certificate of Accounting” in Pakistan and was awarded a “Diploma in Accounting and Business” at the Pakistan Association of Chartered Certified Accountants. On 20 September 2014, Mr Ellahi obtained satisfactory results in the International English Language Testing System (IELTS).

13    Mr Ellahi’s first application for a student visa was arranged by an agent in Pakistan and was received by the Department on 31 December 2014 (the first visa application).

14    On 22 February 2015, Mr Ellahi arrived in Australia on his first student visa, being a student visa Subclass 500. He was enrolled in accounting and commerce at Raffles College of Design and Commerce in Parramatta.

15    On 15 May 2015, Mr Ellahi completed two subjects at Raffles in the first semester of the Bachelor of Commerce, achieving a Pass and Distinction.

2.2    Mr Ellahi’s first contact with Mr Khan of Roots in 2015

16    It is agreed that later in 2015, Mr Ellahi met Muhammad Arif Khan of Roots Education Consultants at Group College Australia (GCA).

17    It is also agreed that:

(1)    at no time has Mr Khan been registered as a Migration Agent by the Authority;

(2)    at no time has Roots been registered as a Migration Agent by the Authority; and

(3)    Mr Ellahi did not enter into any written agreements with Mr Khan or Roots.

18    However, the circumstances of Mr Ellahi’s first meeting with Mr Khan in 2015 were put in issue by the respondent.

19    I accept that there is doubt about whether Mr Ellahi in fact received a $300 discount from Mr Khan (which was one reason identified by Mr Ellahi for engaging Mr Khan). Notwithstanding that and my concerns generally about Mr Ellahi’s credibility (as explained later), I otherwise accept as plausible and credible Mr Ellahi’s evidence as to why he engaged Mr Khan, as opposed to the hundreds of other advertised agents.

20    First, Mr Ellahi gave evidence that some of his classmates from Raffles had already engaged Mr Khan. Secondly, Mr Ellahi could speak with Mr Khan in his native language, Urdu, which is a particularly compelling reason in my view. Thirdly, I accept that Mr Ellahi conducted his own research into Mr Khan on the internet before engaging him and that his online inquiries gave him some comfort about engaging Mr Khan, including because Roots was identified as being on the list of GCA Representative Agents. In this regard, I note that there was some confusion as to the order in which Mr Ellahi undertook this research, that is, whether it preceded his first meeting with Mr Khan or alternatively whether it came later as was suggested in cross-examination. However, overall Mr Ellahi’s evidence was sufficiently clear and persuasive that Mr Khan gave him a business card with his website and Facebook page at their initial meeting and that Mr Ellahi then undertook his own research into Mr Khan on the internet.

21    I do not, however, accept that Mr Ellahi should have checked with the Department before engaging Mr Khan, as was suggested by the Minister in cross-examination. I also note that, while initially the Minister suggested that the list of GCA Representative Agents was not genuine because it could not be accessed on the internet, subsequent efforts to access it on the internet were successful and I do not understand that any submission to this effect was pressed.

22    Finally on this subject, I do not accept that any weight can be given to what may be inconsistencies between Mr Ellahi’s evidence about being directed by other students to meet Mr Khan and the evidence in the police report stating Mr Ellahi was greeted by Mr Khan. I accept Mr Ellahi’s evidence that he did not see the statements as being inconsistent and that this is plausible. This is particularly so given, first, the slight inconsistences highlighted by the respondent could be attributed to a less sophisticated use of the English language by a non-native speaker. Secondly, the police report was written in third person. It was not a statement given by Mr Ellahi and was not signed by him. As such, the report is simply the police officer’s interpretation of what Mr Ellahi told the officer.

2.3    Mr Ellahi’s studies in 2015-2017

23    The Authenticated Vocational Education and Training Transcript (the VET Transcript) comprises records held in the National VET Provider Collection for training undertaken from 1 January 2015. The VET Transcript shows that, from 16 February to 27 February 2015, Mr Ellahi achieved competency in the units/modules in Certificate II of Security Operations provided by Peacemakers Security Pty Ltd. The VET Transcript also shows that he undertook, and achieved competency, in a course on the responsible service of alcohol with ACTA College held on 9 July 2015. I accept Mr Ellahi’s evidence that he undertook this course with ACTA because it was necessary for his job in hospitality.

24    However, on 23 October 2015, Mr Ellahi received mixed results in his GCA course, failing two subjects and passing one. On 24 June 2016, Mr Ellahi completed a further two subjects at GCA and failed another two subjects. As I later explain, Mr Ellahi gave inconsistent explanations for his lack of academic success in 2016: see below at [94]-[96]. In 2017, Mr Ellahi attended GCA for a further two semesters, failing five subjects.

2.4    The first visa extension and second student visa in 2018

25    On 22 January 2018, Mr Ellahi telephoned Mr Khan and asked him to renew his student visa (the first visa extension). Mr Ellahi sent documents to Mr Khan via email and via WhatsApp in relation to the first visa extension.

26    On 12 March 2018, Mr Khan created an ImmiAccount in Mr Ellahi’s name. The ImmiAccount created by Mr Khan was linked to ellahihammad15@gmail.com (the 15 Gmail address) which was also created by Mr Khan.

27    It is also agreed that:

(1)    a person can use their ImmiAccount to generate a visa application for a third party;

(2)    a person can open and start multiple new ImmiAccounts;

(3)    before 31 January 2024, all that was required to open an individual ImmiAccount was a name, a telephone phone number, and an email address; and

(4)    in order to access an individual ImmiAccount, it is necessary to enter the username and password for the ImmiAccount.

28    On 12 March 2018, an electronic application for Mr Ellahi’s second student visa was lodged with the Department by Roots using the ImmiAccount created by Mr Khan (the second visa application). The second visa application did not disclose that Mr Khan and/or Roots were acting on Mr Ellahi’s behalf or that they had prepared and submitted the application. Mr Ellahi contends that Mr Khan prepared and submitted the second student visa application without first showing it to him.

29    On 15 March 2018, Mr Ellahi was granted a bridging visa to cover the period during which the second visa application was being processed. The Department sent the bridging visa grant notice to the 15 Gmail address that was created by Mr Khan. On 17 March 2018, Mr Khan emailed a copy of the bridging visa to Mr Ellahi’s personal Hotmail address.

30    On 21 April 2018, Mr Ellahi was granted his second student visa. The second visa grant notice was emailed to the 15 Gmail address. On 26 April 2018, Mr Khan subsequently forwarded the second visa grant notice to Mr Ellahi at his personal Hotmail address. I note that the second visa grant notice provided a “stay until” date of 15 February 2020.

2.5    Mr Ellahi’s studies in 2018-2019

31    On 8 February 2018, Mr Ellahi signed a contract for another GCA course.

32    On 10 March 2018, Mr Ellahi obtained satisfactory IELTS results.

33    Later in 2018, Mr Ellahi decided to change to a bachelor’s degree in Community Services at Stots College. He did not complete that course and obtained a refund from his earlier college (GCA) because he had transferred to Stots.

34    On 1 July 2019, Mr Ellahi enrolled in a CERT III in Light Vehicle Mechanical at Macallan College. His enrolment, however, was later cancelled for non-attendance.

35    Regarding his engagement with his studies in Australia between 2018 and 2019, Mr Ellahi accepted in cross-examination that he did not sit exams in his courses. While he denied that he had no course engagement, saying that he had attended the classes, I do not accept that evidence in the absence of any independent evidence to corroborate it given my concerns generally regarding Mr Ellahi’s credibility: see further below at [86]-[100]. Mr Ellahi also accepted that, while he was in Malaysia and Pakistan for part of these years (namely, approximately 50 days in 2018 and 46 days in 2019), he was nonetheless in Australia over this period for approximately 600 days. It follows that Mr Ellahi’s absences from Australia provide a less-than-adequate explanation for his lack of course engagement between 2018 and 2019.

2.6    The application for the third student visa in 2020

36    Sometime in late 2019, Mr Ellahi contacted Mr Khan as his second student visa was due to expire in February 2020 and he wished to apply for a third student visa. Mr Khan told Mr Ellahi that his wife, Anum Khalil, would contact him. Sometime in early 2020, Ms Khalil rang Mr Ellahi and said she would help him with his student visa renewal.

37    It is agreed that:

(1)    Ms Khalil is designated as the Chief Operating Officer of Roots on the Roots website;

(2)    at no time has Ms Khalil been registered as a Migration Agent by the Authority; and

(3)    Mr Ellahi did not enter into any written agreement with Ms Khalil or Roots.

38    On 11 February 2020, Mr Ellahi caused a bank transfer of $3,150 to Roots for “Coe”.

39    On 12 February 2020, Ms Khalil requested payment of $4,387 for “other required documents” via a WhatsApp message to Mr Ellahi.

40    On 15 February 2020, Ms Khalil created an ImmiAccount in Mr Ellahi’s name (the second ImmiAcount). The second ImmiAccount was linked to hammadellahi284@gmail.com which was an email address also created by Ms Khalil (the 284 Gmail address). On the same day, Ms Khalil used the second ImmiAccount to electronically lodge the third student visa application. Ms Khalil did not disclose on the application that she and/or Roots were acting on Mr Ellahi’s behalf; nor did she disclose that they had prepared and submitted the application. Despite being set up in his name, Mr Ellahi alleges that he was unaware of the 284 Gmail address and the second ImmiAccount. Mr Ellahi also contends that Ms Khalil submitted the third student visa application without showing it to him first.

41    On 15 February 2020, a tax invoice discloses that Ms Khalil paid the third visa application fee of $1,337.42 using her MasterCard.

42    On 15 February 2020, Mr Ellahi was granted a bridging visa to cover the period during which his third student visa application was being processed. The bridging visa was subject to condition 8105 (“Work Limitation”) which prevented Mr Ellahi from working before his course commenced, and from working more than 40 hours a fortnight while his course of study was in session. The bridging visa grant notice was sent to the 284 Gmail address on 15 February 2020. On the same day, Ms. Khalil forwarded the bridging visa grant notice to Mr Ellahi at his personal Hotmail address.

43    Between 7 August 2020 and 31 March 2021, Mr Ellahi made nine bank transfers to Roots for “Lennox fee” or “fee”, ultimately causing the transfer of $8,000 to Roots.

2.7    The delegate’s refusal of the third student visa application

44    On 21 June 2021, the Department emailed a letter to the 284 Gmail address to comment on adverse information (the June 2021 letter). Among other things, the June 2021 letter stated:

In support of the Student visa application, you provided an Account Maintenance Certificate from Invest Capital Investment Bank Limited (ICIBL), located at 2-H, Gulberg-II, Lahore, Telephone Number: (92 42) … 86, issued on 14 February 2020, in the name of Mr. Inam Ellahi.

In February 2021, a Departmental Officer, conducted checks to confirm the information contained within the above-mentioned Account Maintenance Certificate and confirmed the following:

✃ there are no bank offices located at the address mentioned on the Account Maintenance Certificate.

✃ the telephone number, as declared on the Account Maintenance Certificate, is registered with the Pakistan Telecommunication Company but is not listed to ICIBL but rather to another business.

✃ ICIBL does not operate as a genuine bank for financial purposes.

45    Mr Ellahi was given 28 days “to provide comment on the suspected ‘non-genuine’ information supplied to the Department”. However, there was no response to the June 2021 letter. Mr Ellahi contends that the letter was not provided to him until after the 28 days expired. It is agreed that Ms Khalil sent the June 2021 letter to him on 26 September 2021.

46    On 13 August 2021, the Department sent a letter to the 284 Gmail address, refusing the third visa application, and enclosing the delegate’s Decision Record (refusal decision). It is agreed that Ms Khalil sent the refusal decision to Mr Ellahi on 26 September 2021.

47    As earlier explained, the delegate refused the granting of a third student visa on the ground that the criterion in clause 500.217(1) of Schedule 2 to the Migration Regulations – that an applicant satisfy PIC 4020 – was not met. PIC 4020(1)(a) of Schedule 4 to the Migration Regulations, in turn, relevantly provides that:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister … a bogus document … in relation to:

(a)    the application for the visa;

48    The delegate found that there was evidence before the Minister that Mr Ellahi had given, or caused to be given, a “bogus document” for the purposes of PIC 4020(1) of Schedule 4 to the Migration Regulations. The Department, in the June 2021 letter and the refusal decision, identified the bogus document as an account maintenance certificate purportedly issued by ICIBL on 14 February 2020.

49    A bogus document is defined in s 5(1) of the Migration Act 1958 (Cth) as follows:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)     was obtained because of a false or misleading statement, whether or not made knowingly.

50    Mr Ellahi accepts that the account maintenance certificate identified in the June 2021 letter and the refusal decision is fraudulent and thus a “bogus document” as defined in the Migration Act.

51    Mr Ellahi contends that, after hearing “nothing further about his student visa” following the receipt of the bridging visa on 15 February 2020, he subsequently conducted his own research through the Visa Entitlement Verification Online (VEVO) system and discovered that he no longer had a visa. On 24 September 2021, Mr Ellahi sent a WhatsApp message to Ms Khalil with a screenshot of the relevant VEVO page that showed that he did not have a visa. Subsequently, on 26 September 2021, Ms Khalil provided Mr Ellahi with the June 2021 letter, the refusal decision, and the login details for the second ImmiAccount.

52    I note here that Mr Ellahi made a complaint to police about Ms Khalil’s fraudulent conduct sometime in 2022: see T-32.45.

2.8    Mr Ellahi’s studies in 2020 and 2021

53    Mr Ellahi was enrolled in a Graduate Certificate of Business Management & Graduate Diploma in Strategic Leadership at Lennox College between 24 February 2020 and 20 February 2022.

54    On 25 April 2021, Mr Ellahi qualified for a Graduate Certificate in Business Management (Learning) at Lennox.

55    On 10 July 2021, Mr Ellahi commenced studying for a Diploma in Strategic Leadership at Lennox. Mr Ellahi completed the first module in the Diploma on 20 September 2021, and the second module in the Diploma on 5 December 2021.

2.9    Proceedings in the former Administrative Appeals Tribunal

56    On 29 September 2021, Mr Ellahi lodged an application for merits review in the former Administrative Appeals Tribunal (AAT) to review the delegate’s decision (the AAT application). However, on 11 January 2022, the AAT dismissed the AAT application on the ground that it lacked jurisdiction because the time limit for commencing proceedings in the AAT had expired on 3 September 2021.

2.10    Proceedings in the High Court and remittal to this Court

57    On 11 March 2022, Mr Ellahi filed an application in the High Court, seeking (1) an extension of time for making a judicial review application, (2) a writ of certiorari to quash the delegate’s decision of 13 August 2021, and (3) a writ of mandamus requiring the respondent to determine the third student visa application according to law. It was common ground in this regard that the delegate’s decision could only be challenged in the High Court. In the alternative to the constitutional writs directed to the delegate’s decision of 13 August 2021, Mr Ellahi sought a declaration that the third visa application was invalid on the basis of the fraud of Ms Khalil. On 23 May 2022, the High Court remitted the claim for declaratory relief to this Court.

3.    DISCRETION TO GRANT DECLARATORY RELIEF

3.1    The issue before this Court

58    The Minister contends first that, even if Mr Ellahi established that the third visa application is invalid on the grounds alleged, declaratory relief should be refused in the exercise of discretion because there could be no practical utility in the grant of such relief.

59    In this regard, it is common ground that when the application for declaratory relief was made in the High Court and the proceeding was remitted to this Court, the grant of declaratory relief had some practical utility. This was because, on 13 August 2021, the Minister’s delegate refused Mr Ellahi’s third student visa application on the basis that Mr Ellahi had given, or caused to be given, a bogus document. As a result, by virtue of PIC 4020(2) of Schedule 4 of the Migration Regulations, Mr Ellahi was precluded from applying for the same visa until the expiry of a three-year period commencing when his third visa application was refused on 13 August 2021. This restriction on his ability to apply for the same visa until 13 August 2024 was subject only to waiver by the Minister on the limited grounds contained in PIC 4020(4). As the Minister submitted, PIC 4020(2) would not apply if Mr Ellahi had obtained a declaration that his third visa application was invalid. However, as more than three years have passed since the third visa application was refused, PIC 4020(2) ceased to apply to prevent Mr Ellahi from applying for the same visa well before the end of the extended trial.

60    Mr Ellahi therefore now falls within s 48(1)(b)(i) of the Migration Act. As a consequence, he can apply for the same visa only if he is outside the migration zone, that is, outside Australia. The question is therefore whether, given the effect of s 48(1)(b)(i) and Mr Ellahi’s evidence that he is “more than happy to go back to Pakistan”, there would be any utility in the grant of declaratory relief by this Court.

3.2    Principles governing the exercise of discretion

61    Section 21(1) of the Federal Court of Australia Act 1976 (Cth) confers a wide discretion on this Court to grant declaratory relief: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [45]–[48] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); and National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; (2019) 377 ALR 627 at 114 (Allsop CJ).

62    It is well-established that it is neither possible nor desirable to fetter the exercise of that discretion by establishing rules as to the manner of its exercise: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 (Gibbs J) (by analogy).

63    Nonetheless, the question in respect of which declaratory relief is sought must be real, and not theoretical: Jododex at 437; Bass at [47]-[48]. Accordingly, this Court will not grant declaratory relief where there is no foreseeable consequence for the parties or the grant of such relief lacks practical utility: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); S & V Nominees Pty Ltd (in liquidation) v Rabobank Australia (Formerly known as Primary Industry Bank of Australia Limited) (No 2) [2011] FCA 1039 at [6] (Besanko J); Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency [2024] FCA 995 at [110] and [137] (Perry J). As the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) held in Bass at [48]:

48.    [O]ne crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:

“If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”

(Emphasis in original. Citations omitted.)

3.3    The grant of declaratory relief should be refused

64    I agree with the Minister that this is a clear case in which the grant of declaratory relief could serve no useful purpose and should be refused, even if Mr Ellahi discharged his onus of proving that he was neither complicit in the fraud nor recklessly different in the relevant sense.

65    First, as I have explained, PIC 4020(2) of Schedule 4 to the Migration Regulations no longer applies to prevent Mr Ellahi from applying for the same visa.

66    Secondly, the course that Mr Ellahi wished to study (as identified in his third visa application) has been superseded.

67    Thirdly, it was Mr Ellahi’s evidence that:

(1)    he accepted (correctly) that this Court cannot grant him a visa;

(2)    he accepted that the outcome of this application, if he were to succeed, was only that he would be permitted to reapply for a visa or have his third visa application re-assessed by the Minister;

(3)    he did not know whether he was still eligible to finish the qualification which he said he wanted to obtain from Lennox;

(4)    he accepted that since August 2024, he could have made a valid application for a student visa if he had returned to Pakistan, but he had chosen instead to make the present application to “clear [his] name; and

(5)    “As long as I can clear my name, I’m more than happy to go back to Pakistan. I don’t want to go to Pakistan sounding or portraying as – as a fraudulent guy who – who told lies or tried – who – who tried to give fraudulent documentation to the Immigration”.

68    Regarding (4) and (5), in closing submission, Mr Ellahi submitted that these proceedings have utility as, if successful, they would clear his record of the visa refusal which may impact future visa applications, if he decides to apply for further visas, not just in Australia. These proceedings, however, cannot “clear” Mr Ellahi’s name because no finding was made in the refusal decision that Mr Ellahi knew that the Account Maintenance Certificate was bogus.

69    I also note that it was not necessary for the delegate to find that Mr Ellahi was aware that the document in question was bogus before PIC 4020 was engaged: Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 at [49], [50] and [54] per Buchanan J (with whom Allsop CJ and Rangiah J agreed). As Buchanan J held in Trivedi at [49]:

49.    [T]he purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.

70    Furthermore, whether Mr Ellahi will apply for a further visa, and if so what visa, is hypothetical and, as such, the conditions which might apply to any such visa application are unknown.

71    Finally, Mr Ellahi submitted, in support of the practical utility of the declaratory relief sought, that the fact finding in these proceedings has relevance to the separate proceedings instituted in the High Court challenging the delegate’s decision to refuse the visa. Mr Ellahi further submitted that, if the Court were to find in this proceeding that he was neither complicit in the fraud nor recklessly indifferent in the relevant sense, the Court should not issue the declaration until he has considered the reasons for judgment and the Court has heard further submissions. This was said to be because it may be in Mr Ellahi’s “better interests” to have the delegate’s decision quashed and the application remitted to the delegate, rather than for Mr Ellahi to press the application to declare the third visa application invalid.

72    Mr Ellahi’s submission (as summarised above) was, with respect, misconceived for the following reasons.

(1)    Findings are not made in the abstract but are made to explain why the relief sought by an applicant in legal proceedings should or should not be granted. Findings are not made to support the grant of relief sought in another proceeding (although of course, orders in one set of proceedings may have implications for, or provide a basis for, orders which might be made in another set of proceedings). As I explained in arguendo in closing submissions, “the point of the court exercis[ing] its jurisdiction is to grant relief and nothing else. Reasons mean nothing without the fact that they support orders”.

(2)    If this Court found that the third student visa application was invalid, there would be no basis on which the application could be remitted to the delegate.

(3)    If it was Mr Ellahi’s preference to seek relief in the High Court to quash the delegate’s decision and to remit the matter for reconsideration, Mr Ellahi could have abandoned his application before this Court and pressed only his application challenging the delegate’s decision in the High Court.

(4)    If Mr Ellahi no longer sought relief from this Court, or was unclear about whether or not he still sought relief from this Court, questions would arise as to the existence of a “matter” in a constitutional sense so as to found the jurisdiction of this Court.

73    Ultimately, notwithstanding the confusion evident in the submissions about what Mr Ellahi sought to achieve through these proceedings, Mr Ellahi accepted that he wished to press for declaratory relief in this Court and that he would not seek to be heard on whether declaratory relief should be granted if this Court made findings upholding Mr Ellahi’s claim. Nonetheless, none of these matters give comfort as to the existence of any practical utility from the declarations sought from this Court.

74    It follows, as the Minister submitted, that “the only ‘practical’ result of this proceeding is to permit the applicant to make a further student visa application on-shore in Australia where he has no current intended course of study and where he is otherwise ‘happy’ to go back to Pakistan”. In these circumstances, a declaration as to the validity of his third student visa application would serve no useful purpose and should therefore be refused.

75    Notwithstanding the view which I have reached on the exercise of discretion to grant relief, in line with my role as the primary judge and in circumstances where I am invited to make findings on issues of credit, it is necessary for me to consider whether, in the alternative, Mr Ellahi has discharged his onus of establishing that he was neither complicit in the fraud perpetrated by Ms Khalil on the Department, nor recklessly indifferent in the relevant sense.

4.    HAS MR ELLAHI DISCHARGED HIS ONUS OF ESTABLISHING THAT HE WAS NOT COMPLICIT OR RECKLESSLY INDIFFERENT?

4.1    Legal principles

76    Subject to one caveat set out below, the applicable legal principles were not in issue and can be summarised as follows.

77    Section 46 of the Migration Act sets out the conditions for a valid visa application. Under s 47(3) of the Migration Act, the Minister is not to consider a visa application that is not valid. Although the Migration Act does not explicitly refer to visas affected by third-party fraud, Gilmore and Mortimer JJ (as her Honour then was) held in Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213 at [105] that:

105.    [T]here is no clear intention disclosed by ss 46 and 47 of the Act that the validity requirements in s 46 are intended to be exhaustive, and in particular are intended to exclude a visa application affected by third party fraud. The concept of a valid visa application, on the current state of authority of this Court, does not include an application made without the actual or otherwise authority of the named visa applicant, where the visa applicant does not have capacity to give authority (see Kim) and does not include an application based on fraudulent documents where the visa applicant is neither complicit in the fraud nor indifference to the use of unlawful or dishonest means (see Singh and Gill).

78    To successfully establish that the third visa application was invalid by reason of third-party fraud, the onus lies upon Mr Ellahi first to prove the fraud and satisfy the Court that he was neither complicit in the fraud, nor indifferent as to whether his agent, Ms Khalil, used unlawful or dishonest means to try and obtain his third student visa: Maharjan at [78] and [102] (Gilmour and Mortimer JJ); Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 at [48] (Kenny, Griffiths and Mortimer JJ); Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556; [2018] FCAFC 52 at [141], [142] and [144](8) (Griffiths and Moshinksy JJ); Mohammed v Minister for Immigration and Border Protection [2018] FCA 767 at [30] (Middleton J) cited with approval in Kaur v Minister for Immigration and Border Protection [2019] FCA 212 at [26]–[27] (Bromwich J) (special leave refused: Kaur v Minister for Immigration and Border Protection [2019] HCATrans 229); Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 at [55]-[56] (Mortimer and Charlesworth JJ). That onus imposes “a heavy burden” on an applicant, as Gilmore and Mortimer JJ explained in Maharjan at [102].

79    Secondly, if these matters are established, Gilmore and Mortimer JJ in Maharjan held at [103] that the second question is:

103.    [H]ow, if at all the fraud which is proven to have occurred, affected the processes by which the [applicant’s] visa applications were to be considered … That is because, as the High Court said in SZFDE and Full Courts of this Court have reiterated, there must also be a fraud “on” the administrative decision-maker, in the sense of the fraud affecting that decision-maker’s statutory functions and obligations, or adversely affecting, disabling or stultifying the processes which the Act prescribes.

80    In Kaur v Minister for Immigration and Border Protection [2021] FCA 1026 at [12]–[14], Bromberg J traced the development of the requirement that an applicant must neither be complicit in, nor recklessly indifferent to, the fraud of a third party to succeed in an action alleging that fraud stultified an administrative process:

12.    The leading authority on public law fraud is the High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. In SZFDE, the High Court observed the importance in public law fraud of paying close attention to “the nature, scope and purpose of the particular system of review by the Tribunal which the Act establishes and the place in that system of registered migration agents”: at [29]. The High Court made no reference in SZFDE to the concept of “indifference”, but alluded to the necessity of an applicant for judicial review establishing that he or she did not “collude” in the fraud of a third party: at [28].

13.    The concept of “indifference” arose in the context of public law fraud by a migration agent in Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398 (Kenny, Griffiths and Mortimer JJ). At the outset, it should be observed that the explanation of “indifference” in Gill occurred in the context of the following comments at [47] (Kenny, Griffiths and Mortimer JJ), referring to SZFDE:

Recognition that fraud can arise in a wide range of factual circumstances, such that it is apt to describe the range as “infinite in variety”, highlights the undesirability of prescribing in generally applicable terms the scope for judicial review where there is a third-party fraud.

14.    The concept of “indifference” should therefore be approached with due care in recognition of the breadth and infinite variety of fraud and how it might intersect with the relevant statutory provisions in question. The Full Court in Gill proceeded to identify the character of the indifference necessary to be proved in cases of third-party fraud by migration agents. At [49] their Honours drew:

…[a] distinction between an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly.

Accordingly, it must be shown that the applicant was not indifferent to the migration agent acting unlawfully or dishonestly, not merely indifferent as to how the migration agent might procure a visa acting lawfully and properly.

81    Finally, I accept the Minister’s submission that the Minister does not have an evidential onus. Nor is this a case giving rise to the type of persuasive onus identified in Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969. Blatch v Archer stands for the proposition that evidence is to be weighed according to the capacity of each party to provide proof of the relevant fact. Thus, in some cases, slight evidence may suffice to cast a persuasive onus on to the other party. However, as the Minister submits, this principle does not apply in this case because knowledge of what occurred between Mr Ellahi and Ms Khalil is known by Mr Ellahi but not by the Minister.

4.2    The issues

82    As earlier explained, it is common ground that the account maintenance certificate purportedly issued by ICIBL on 14 February 2020 constitutes a “bogus document” under the Migration Act and that, in giving this document to the Minister’s delegate in relation to Mr Ellahi’s third visa application, Ms Khalil perpetrated a fraud on the Department. However, Mr Ellahi contends he was neither complicit in the fraud nor recklessly indifferent as to whether Ms Khalil used unlawful or dishonest means to apply for his third student visa. As such, Mr Ellahi claims that the third visa application is invalid.

83    The Minister contends, however, that:

(1)    Mr Ellahi cannot discharge his onus in this proceeding; or, in the alternative,

(2)    the Court should find that Mr Ellahi was either complicit in the fraud or indifferent as to whether his agent, Ms Khalil, used unlawful or dishonest means to try and obtain his third student visa.

84    In support of its case on the substantive claim, the Minister submitted that the evidence establishes that Mr Ellahi’s real purpose in Australia was to work and not to study. The Minister further submitted that Mr Ellahi was not a witness of credit and that his evidence should not be accepted unless it is independently corroborated.

85    For the reasons set out below, I have found that Mr Ellahi has failed to discharge his onus of proving that he was not recklessly indifferent in the relevant sense, even though there is considerable force in his contention that he was not complicit in Ms Khalil’s fraud. As such, the application for declaratory relief must be dismissed. However, I have not made a positive finding (and it was not necessary for me to find) that Mr Ellahi was in fact recklessly indifferent in the relevant sense.

4.3    Findings as to Mr Ellahi’s credibility

86    The Minister submitted that Mr Ellahi was not a witness of credit. I agree. In my opinion, aspects of Mr Ellahi’s evidence cast serious doubt on his credibility. For that reason, Mr Ellahi’s evidence should not be accepted unless it is corroborated by independent evidence or is inherently plausible.

87    My concerns can be illustrated by the following examples on which the Minister relied (which are also relevant to the substantive issues, as I shortly explain).

88    First, in Mr Ellahi’s affidavit affirmed on 4 March 2022 and filed in the High Court, Mr Ellahi gave evidence at [25] that he had not authorised Mr Khan or Ms Khalil to create an ImmiAccount in his name:

25.    At no stage did I authorise Ms Khalil or Mr Khan to create an ImmiAccount in my name. I have never created an Immi Account.

89    Mr Ellahi also gave evidence in his affidavit affirmed on 29 February 2023 at [8] (which was filed in this Court) that:

8.    I did not open and operate any IMMI Accounts in my own name and relied upon Roots Education Consultant in their capacity as Education Agents to deal with the department. I had no access to either of the IMMI accounts and was not provided with passwords by the Roots Educational Consultants.

90    However, the evidence of WhatsApp messages between Mr Ellahi and Mr Khan establishes that, on 27 March 2018, Mr Khan gave Mr Ellahi the username (being the 15 Gmail address created by Mr Khan) and password for the first ImmiAccount at Mr Ellahi’s request. Mr Ellahi requested details to the first ImmiAccount to afford him access to the referral letter which he required in order to undergo a medical examination which was necessary as part of his second student visa application. When confronted with this evidence in the WhatsApp messages in cross-examination, Mr Ellahi’s evidence was inconsistent and confused.

91    Secondly, Mr Ellahi gave evidence in his affidavit of 4 March 2022 at [14] that he drafted the Statement of Purpose for his third visa application:

14.    Ms Khalil called me. … She also asked me to write a Statement of Purpose which I duly wrote and I believe Ms Khalil submitted it with the visa application.

92    However, as the Minister submitted, the objective evidence contradicts Mr Ellahi’s evidence and establishes that the Statement of Purpose for his third visa application was in fact drafted by Ms Khalil. Specifically, on 14 February 2020, Mr Ellahi sent Ms Khalil via WhatsApp a Statement of Purpose in the terms originally prepared by Mr Khan for Mr Ellahi’s second visa application. Ms Khalil then expanded significantly on that statement, creating the expanded Statement of Purpose which was submitted in support of Mr Ellahi’s third visa application.

93    The Minister’s careful correlation of the WhatsApp messages on Mr Ellahi’s mobile phone with their attachments establishes that there were no subsequent communications by Mr Ellahi in which he attached and sent the expanded Statement of Purpose (which accompanied the third visa application) to Ms Khalil, despite his evidence that all communications with Ms Khalil were via WhatsApp and that he “duly wrote” the Statement of Purpose for his third application.

94    Thirdly, as the Minister submits, Mr Ellahi gave inconsistent explanations for the lack of success in his studies in 2016 about matters in respect of which it stretches credibility to suggest he could be mistaken. In his Statement of Purpose for both his second student visa application and third student visa application, Mr Ellahi contended that he could not focus on his studies in 2016 because he was upset and stressed due to his father being very sick:

But unfortunately, during my study time period I heard a news from my back home Pakistan that my father was very sick. I have very close attachment with my father. I. became so upset and stressed. Due to my stressed condition I could not focus on my studies and I was unable to passed the subjects in which I was enrolled. I became so disappointed and missed my family.

95    However, in an email, dated 1 August 2016, to the Student Services Coordinator at GCA in relation to his request to “freeze” his semester, Mr Ellahi said:

I’m coming back Sydney tomorrow from overseas. I had to go overseas in a rush. My unkle passed away …

96    A different explanation again was given in Mr Ellahi’s oral evidence where his evidence was that his grandfather passed away in 2016.

97    In the fourth place, Mr Ellahi’s oral evidence was at times evasive. For example, he initially denied that he worked in Australia after he discovered on 24 September 2021 that his visa was cancelled. However, he changed his evidence when confronted with records of payments for work undertaken by him for a hire car company.

98    As a further example, Mr Ellahi deposed in his affidavit affirmed on 29 February 2023 at [10] that:

10.    I did notice every time a visa was granted and I received a visa from Roots Education it had a different email address which had different combinations of my name. However, because everything was organized by Roots Education, I did not query it.

99    When Mr Ellahi was cross-examined on that evidence, he answered:

This was a mistake …

What I meant to say was I did not notice every time I was granted a visa, I received a visa from Roots Education, it had a different email.

100    However, as was put to him in cross-examination, if that answer were true, the following sentence in that paragraph – that he did not query the different emails because Roots organised everything – was unnecessary, and indeed, in my view, contradicted his answer.

4.4    Mr Ellahi’s onus to establish that he was not recklessly indifferent has not been discharged

101    Mr Ellahi contended that he had discharged his onus of establishing that he was neither complicit in Ms Khalil’s fraud nor recklessly indifferent to the use of unlawful or dishonest means to obtain a third student visa.

102    First, as to his state of knowledge, Mr Ellahi made the following submissions.

(1)    Ms Khalil was identified on the Roots website as a person who could assist with visas.

(2)    Ms Khalil created the 284 Gmail address that was used to lodge the third student visa application (as is agreed) but did so without advising Mr Ellahi.

(3)    Ms Khalil did not disclose on the third visa application that either she or Roots were acting on Mr Ellahi’s behalf.

(4)    There is nothing (I interpose, at least express) in the WhatsApp communications between Mr Ellahi and Ms Khalil which suggests that Mr Ellahi expected Ms Khalil to act other than lawfully in obtaining a third student visa, bearing in mind that WhatsApp was their primary means of communication.

(5)    Mr Ellahi could not access his second ImmiAccount until he had been provided with the username and password for that account. That did not occur until Ms Khalil provided the password for that account via a WhatsApp message on 26 September 2021. Consequently, prior to 26 September 2021, Mr Ellahi:

(a)    could not access the documents provided by Ms Khalil to the Department including the bogus account maintenance certificate purportedly from ICIBL;

(b)    was unaware that the third visa application failed to disclose Ms Khalil’s or Roots’ assistance in its preparation and submission;

(c)    was not aware that Ms Khalil had created the 284 Gmail address and used that address as the contact address for Mr Ellahi’s third visa application; and

(d)    was not aware that the Department had written on 21 June 2021 inviting him to comment on the bogus account maintenance certificate.

(6)    The fact that Mr Ellahi did not know that the bogus account maintenance certificate was provided to the Department by Ms Khalil is corroborated by the WhatsApp messages which disclose that Ms Khalil never asked him to provide proof of financing, even though she asked for other documents on 7 February 2020.

(7)    Mr Ellahi also deposed in his affidavit of 4 March 2022 at [25] that:

25.    At no stage did Ms Khalil ask me to provide her with any evidence of my parents’ capacity to pay for my studies or support me while I was studying. I did not provide her with any documents concerning this.

103    The matters set out above are supported by independent evidence and strongly suggest that Mr Ellahi has discharged his onus of proving that he was not complicit in the fraud perpetrated by Ms Khalil. However, it is unnecessary ultimately to decide that question. This is because these matters fall well short of discharging Mr Ellahi’s onus of establishing that he was not recklessly indifferent to the use of unlawful or dishonest means by Ms Khalil in applying for his third student visa.

104    In addition to the matters set out at paragraph [102] above, Mr Ellahi also made the following submissions.

(1)    Mr Ellahi gave evidence in his affidavit of 4 March 2022 at [36] that:

36.    At all times that I have been present in Australia my father has had adequate funds in his savings account to meet the financial support requirements of my student visa. If I had been asked, I could have provided evidence of this.

(2)    There was no motive for Mr Ellahi to seek a student visa other than legitimately. Mr Ellahi met all of the criteria to lawfully obtain the visa and had no reason to entrust the job of obtaining it to someone other than an agent who would do so lawfully. Mr Ellahi also gave evidence that he trusted Roots and that nothing in his interactions with Mr Khan alerted him to the fact that Roots was other than a legitimate facilitator of enrolments and visa applications.

(3)    Mr Ellahi was a genuine student before and after he came to Australia. He gave reasons as to why he had chosen to study in Australia and specifically at Raffles. There were also genuine reasons why he had been unable to complete other courses in Australia including that English was not his first language, the differences between Australian and Pakistani tax laws, and the stress from which he suffered in 2016 when his father was very sick. Nor was there anything inconsistent in Mr Ellahi working while being a genuine student because he had an entitlement to work up to 40 hours per fortnight.

105    However, this evidence is not independently corroborated and turns upon accepting Mr Ellahi’s own evidence as to his intentions, state of mind, and obstacles to successfully completing his studies in Australia. That evidence, even when considered together with the evidence that is independently corroborated, is not in my view sufficient to discharge his onus of establishing that he was not recklessly indifferent as to whether unlawful or dishonest means were employed by Ms Khalil when trying to obtain his third student visa.

106    First, as I have already found, by reason of my serious concerns as to his credibility, Mr Ellahi’s evidence should not be accepted unless it is corroborated by independent evidence or is inherently plausible. I accepted, in this regard, Mr Ellahi’s evidence about the circumstances in which he first met Mr Khan and his subsequent research which gave him the confidence to engage Mr Khan. However, that evidence is ambiguous as to whether Mr Ellahi was genuinely seeking a visa in order to pursue studies in Australia and as to whether he was concerned to ensure that that was achieved only by an agent acting lawfully and honestly. Otherwise, the evidence that Mr Ellahi relies on is not inherently plausible such that it should be accepted. This is particularly so in circumstances where the evidence suggests that Mr Ellahi’s true motive was to work and earn money in Australia, as I shortly explain.

107    Secondly, the evidence did not establish that Mr Ellahi’s father had adequate funds to meet the financial support requirements of Mr Ellahi’s student visa or that evidence to this effect could have been provided by Mr Ellahi, if requested.

108    Thirdly, as the Minister submitted, notwithstanding the fact that Mr Ellahi has been in Australia for more than nine years, the objective evidence establishes that Mr Ellahi has successfully obtained only three limited qualifications, namely:

(1)    a responsible service of alcohol course from ACTA on 9 July 2015;

(2)    a two-week Certificate II in Security Operations from Peacemakers Security between 16 February 2015 and 27 February 2015; and

(3)    a Graduate Certificate in Management (Learning) from Lennox between 26 May 2020 and 23 April 2021.

109    The objective evidence also establishes that:

(1)    between 2015 and 2017, Mr Ellahi had successfully completed only three of 24 subjects at the Universal Business School Sydney and two subjects at Raffles;

(2)    between 2018 and 2019, Mr Ellahi undertook no study (as evidenced by the absence of records from any educational institution for that period); and

(3)    in 2021, Mr Ellahi had completed only two of the four modules required to complete the now superseded course of a Graduate Diploma of Strategic Leadership.

110    As to (3) above, it is notable that Mr Ellahi was unable to describe his alleged intended further study. It is also notable that the course which Mr Ellahi wished to study, as identified in his third visa application, has been superseded and that he has not taken any action since 2021 to follow up with his college about whether he might still be eligible to complete that course.

111    Fourthly, I do not accept Mr Ellahi’s evidence that he could not focus on his studies in 2016 because of his father’s illness, given the different and inconsistent explanations he has given for his lack of academic progress that year.

112    Fifthly, I accept the Minister’s submission that the first two qualifications completed by Mr Ellahi (namely, the responsible service of alcohol course and the Certificate II in Security Operations) could have been relevant only to facilitating Mr Ellahi working and earning money in Australia. In this regard, it will be recalled that Mr Ellahi had entered Australia with qualifications from Pakistan in accounting which he initially sought to further at Raffles. Furthermore, Mr Ellahi’s bank records establish that he continued to work after he became aware on 24 September 2021 that his third student visa application had been refused at which time he no longer had a visa entitling him to work in Australia.

113    These matters, together with his very limited engagement with his courses in Australia, strongly suggest that Mr Ellahi’s real motive in seeking the third student visa was to remain in Australia to work. His apparent lack of a legitimate motive in seeking the third student visa makes it, in turn, more difficult for Mr Ellahi to satisfy this Court that he was not recklessly indifferent to the means which Ms Khalil might employ in order to obtain his third student visa.

114    Finally, I accept the Minister’s submission that two documents with respect to Mr Ellahi’s father’s financial position, purportedly from HBL, which accompanied Mr Ellahi’s second visa application, were not provided by Mr Ellahi to Mr Khan but were likely created by Mr Khan.

115    In particular:

(1)    Mr Ellahi confirmed that he had produced in this proceeding all communications between him and Roots and had not deleted any emails;

(2)    there are no communications from Mr Ellahi to Mr Khan attaching the two documents in question which were provided in support of Mr Ellahi’s second visa application;

(3)    the only documents provided by Mr Ellahi to Mr Khan were an affidavit from his father sworn on 31 January 2018 and an account maintenance certificate from HBL which stated that an account was maintained by HBL for Mr Ellahi’s father but which did not identify the balance available in that account; and

(4)    with respect to (3) above, the purported account maintenance certificate from HBL dated 31 January 2018 provided with Mr Ellahi’s second visa application by Mr Khan was different in that it not only stated that Mr Ellahi’s father held an account with HBL, but added that the available balance in Mr Ellahi’s father’s account as at 31 January 2018 was (allegedly) PKR 6,264,275/89.

116    It follows that when Ms Khalil provided the bogus document in support of the third student visa application for Mr Ellahi, that was not the first occasion on which it is likely that a bogus document was provided to the Department to support a student visa application made on Mr Ellahi’s behalf by Roots. This is a further factor that renders it more difficult for Mr Ellahi to discharge his onus of proving that he was not recklessly indifferent to the means which Roots used in applying for his third student visa.

5.    CONCLUSION

117    For these reasons, Mr Ellahi has failed to satisfy his onus of establishing that he was not recklessly indifferent as to whether Ms Khalil used unlawful or dishonest means to obtain a third student visa.

118    It follows that the application must be dismissed with costs.

Associate:

Dated:    27 May 2025