Kaur v Minister for Immigration & Border Protection

The applicant, an Indian national, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the Minister for Immigration & Border Protection's refusal to grant her a Subclass 485 visa. The applicant's husband and son were secondary applicants. The visa application, lodged in October 2011, required specific English language proficiency and a skills assessment. The Department of Immigration & Citizenship later notified the applicant that the skills assessment from Trades Recognition Australia could not be verified and alleged she had provided false and misleading information. The applicant's legal representative argued the application was invalid, claiming she was a victim of fraud by the migration agent, S & S Migration, and unaware of the false information.

The primary legal issues before the court were whether the visa application was valid and, if so, whether the applicant met the criteria for the visa to be granted. The MRT had determined that it could only consider the second issue if the application was found to be valid. The applicant's case was fundamentally that the visa application itself was not valid due to the alleged fraud by the migration agent.

The Tribunal found that while the applicant did not personally sign the online visa application and it contained false statements, she had provided her passport and relevant information to the migration agent and paid him. The Tribunal concluded that the applicant was indifferent to the precise nature and contents of the visa application and ultimately agreed to whatever the agent promised, accepting the applicant's evidence given on 1 April 2014 as the more likely version of events. The Tribunal did not accept the applicant's claims that she had instructed the agent to apply only for a student visa extension, finding that she went along with what the agent proposed. Crucially, the Tribunal noted that the applicant did not approach the Department after learning the agent had absconded after defrauding other clients.

The application for review was dismissed.