Kassem & Ors v Minister for Immigration & Anor (No.2)

This matter concerned an application for remedies under s 476 of the *Migration Act 1958* (Cth) brought by the applicants against the Minister for Immigration and another respondent. The applicants sought to challenge a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's decision not to grant them a 457 visa. The central dispute revolved around allegations of fraud purportedly committed by individuals acting in relation to the applicants' visa application, and whether such fraud, if established, would invalidate the Tribunal's exercise of its jurisdiction to review the delegate's decision.

The court was required to determine whether any alleged fraudulent conduct by persons purporting to act in relation to the applicants' 457 visa application was of a nature that would stultify the Tribunal's exercise of its jurisdiction. This involved assessing the evidence presented in support of the fraud allegations and considering the legal implications of any established fraud on the Tribunal's review powers.

In reaching its decision, the court applied s 140 of the *Evidence Act 1995* (Cth), which governs the standard of proof in civil proceedings. The court noted that it must be satisfied on the balance of probabilities that a case has been proved, taking into account the nature of the cause of action, the subject matter, and the gravity of the matters alleged. This standard was to be applied in accordance with the principles articulated in *Briginshaw v Briginshaw*, which requires actual persuasion of the occurrence or existence of a fact, particularly when serious allegations are made. The court found that the alleged frauds, with one exception, were incapable of stultifying the Tribunal's jurisdiction, and the application was ultimately dismissed.