Li v Minister for Immigration & Anor - [2009] FMCA 542

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 542

MIGRATION – Migration Review Tribunal – alleged fraud on the Tribunal – applicant’s representative not a registered migration agent – whether conduct of representative was negligent or fraudulent.

Migration Act 1958 (Cth), ss.276, 280, 281, Pt 5 Div 5, Pt 7 Div 4

Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
SZFDEvMinister for Immigration and Citizenship (2007) 232 CLR 189
SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
SZLHP vMinister for Immigration and Citizenship [2008] FCAFC 152
SZMWT vMinister for Immigration and Citizenship [2009] FCA 559

Applicant:

XIAO LI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1235 of 2008

Judgment of:

Riley FM

Hearing date:

29 April 2009

Date of Last Submission:

29 April 2009

Delivered at:

Melbourne

Delivered on:

25 June 2009

REPRESENTATION

Counsel for the Applicant:

Royce Deckker

Solicitors for the Applicant:

Australia Legal Advisory Centre

Counsel for the Respondents:

Ruth Hamnett

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 10 October 2008 and amended on 25 February 2009 be dismissed.
The applicant pay the first respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1235 of 2008

XIAO LI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Migration Review Tribunal. The Tribunal affirmed a decision refusing to grant the applicant a skilled independent overseas student residence (class DD) visa.
A primary criterion for the grant of such a visa is that the applicant has vocational English. To satisfy that criterion, the applicant needed to have achieved an IELTS test score of at least five for each of the four test components of speaking, reading, writing and listening in a test conducted:
a)not more than 12 months before the day on which the application was lodged; or
b)during the processing of the application.
The applicant applied for the visa on 31 January 2006. She provided to the Department her results of an IELTS test conducted on 26 April 2007. The applicant had achieved scores of 4.5, 5, 5 and 5 for listening, reading, writing and speaking respectively. The delegate refused the visa on 23 May 2007. The applicant applied to the Tribunal for review on 1 June 2007.
By letter dated 28 March 2008, the Tribunal asked the applicant to provide information that might indicate that she had achieved the necessary IELTS results. On 13 April 2008, the applicant informed the Tribunal that she intended to undertake an IELTS test on 26 July 2008 and enclosed a copy of a test registration card as evidence of her booking.
The applicant appeared before the Tribunal on 21 April 2008. She told the Tribunal that she had undertaken an IELTS test in the past but was half a point short. She said that she had arranged to take another test but had been late and did not sit for it. The applicant said that she had booked to do another IELTS test on 26 July 2008. The Tribunal gave the applicant until 15 August 2008 to provide the results of the test booked for 26 July 2008.
The applicant did not provide any test results by 15 August 2008. An officer of the Tribunal contacted the applicant on 18 August 2008 to enquire about the test results. The Tribunal’s case note said:
[The applicant] stated that she was sick and was unable to attend test. [The applicant] stated that she has re-booked a test for 20/11/08. [The applicant] stated that she has given this information to her [authorised recipient]. I stated that she or her [authorised recipient] may provide a written explanation of the situation to the Tribunal ASAP by fax.
Later on 18 August 2008, the applicant sent to the Tribunal a copy of a form showing that she was booked to do another IELTS test on

29 November 2008
. The applicant had written on the bottom of the copy of the booking form that she sent to the Tribunal:
Due to my medical condition. I couldn't sit for my last IELTS test. … please wite my this IELTS test result.
The Tribunal wrote to the applicant on 19 August 2008 saying that the Tribunal would not await the test results and saying that no further extensions of time would be granted.
The Tribunal signed its decision on 21 August 2008 but apparently did not hand it down until 16 September 2008. The Tribunal found that there was no evidence before it that the applicant had achieved an IELTS test score of at least five for each of the four test components. The Tribunal said at paragraph 21 of its reasons for decision:
The Tribunal notes that the applicant has requested to undertake another test in November 2008. The Tribunal has decided not to grant more time to the applicant to undertake that test because it is of the view that the applicant has had ample opportunity during the processing of her application to undertake an IELTS test and that the Tribunal has given the applicant adequate time to undertake the IELTS test. Further, the applicant had not provided any medical evidence relating to her inability to undertake the test in July, other than stating that she could not sit for the test due to her medical condition. The Tribunal is not satisfied, on the basis of this limited evidence, that the applicant was unable to take the test in July 2008.

The applicant's case

The applicant's case is that there was a fraud on herself and on the Tribunal which resulted in her being denied natural justice. The applicant said that the fraud consisted of a Ms Melanie Ouyan:
a)holding herself out to be a registered migration agent and acting as the applicant’s registered migration agent when she was not a registered migration agent;
b)asking for and receiving fees as a registered migration agent that she was not entitled to receive;
c)failing to inform the Tribunal on or about 23 July 2006 that the applicant would be unable to sit her IELTS test on 26 July 2006 due to an eye problem, although Ms Ouyan had told the applicant that she would do so;
d)giving improper advice and acting incompetently, in particular, by failing to advise the applicant that she needed to get a medical certificate to provide to the Tribunal;
e)failing to send to the Tribunal a medical certificate showing that the applicant was unwell on 26 July 2008; and
f)failing to seek a further extension of time.
The applicant submitted that this was not simply a case of incompetence or poor advice because Ms Ouyan held herself out to be a registered migration agent when she was not. The applicant submitted that Ms Ouyan could not have telephoned the Tribunal because she would have been exposed as acting as a migration agent when she was not registered.
The grounds of review set out in the amended application filed on

25 February 2009
are:
1.The decision of the Migration Review Tribunal (the Tribunal) was made without jurisdiction or is affected by an error of jurisdiction or is affected by an error of jurisdiction.
2.The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act 1958 as amended applies.
3.The decision of the Tribunal was substantially affected by the conduct of a person purporting to be a registered migration agent who proffered advice and provided services to the applicant which were instrumental in her failure to complete an IELTS test in time to the satisfaction of the Tribunal.
PARTICULARS
(a)The Tribunal failed to take into account the applicant’s medical condition which resulted in her non-attendance at a scheduled IELTS test.
(b)The Tribunal failed to allow an adjournment to enable the applicant to submit information/documents related to the issues of her medical condition and her efforts to obtain a vocational English qualification.
4.The person purporting to be a registered migration agent is Ms. Melanie Ouyan who operates a business trading as WAH Educational Services, but Ms. Ouyan is not a registered migration agent.
5.The holding out of Ms. Ouyan as a registered migration agent was itself fraudulent, and her advice and representations regarding her services were also fraudulent.
6.By virtue of this fraud, a fraud has been perpetrated upon the Tribunal itself in that by virtue of the said fraud it has been unable to exercise natural justice in the ventilation of the issues involving the applicant.
7.In light of the fact that the Tribunal has made a jurisdictional error, its decision involving the applicant of 21 August 2008 should be quashed and an order made for the Tribunal to reconsider the matter in the light of fresh evidence.

The authorities regarding fraud on the Tribunal

The High Court held in SZFDEvMinister for Immigration and Citizenship (2007) 232 CLR 189 that there was a fraud on the Tribunal, which vitiated its decision, in circumstances where:
a)the applicant's adviser claimed to be a registered migration agent when he was not;
b)he charged the applicant a fee for his services in breach of s.281 of the Migration Act 1958 (“the Act”);
c)he advised the applicant not to attend the Tribunal hearing for the spurious reasons that:
i)the Tribunal was not accepting any visa applications at the time;
ii)the applicant might say something at the hearing that would be inconsistent with what the adviser wished to say in a s.417 application;
iii)the adviser was doing what was best for the applicant, namely, making a s.417 application;
d)the applicant accepted that advice;
e)the adviser’s real reason for advising the applicant not to attend the hearing was that the adviser was not entitled to represent the applicant and her attendance at the Tribunal hearing might expose the adviser to a penalty of up to 10 years imprisonment;
f)the adviser sent a response to hearing invitation form to the Tribunal saying that the applicant did not wish to attend the hearing; and
g)in rejecting the applicant's claims, the Tribunal relied heavily on the fact that the applicant did not attend the hearing to enable the Tribunal to explore certain aspects of her claims.
In these circumstances, the High Court held at [51] that the agent had undoubtedly been fraudulent in his dealings with the applicant. In addition, the agent had stultified the operation of the critically important natural justice provisions in the Act. The consequence was that, by reason of the agent's fraud, the Tribunal “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review.” Consequently, there was a fraud on the Tribunal and the decision made by the Tribunal was no decision at all.
The High Court went on to say at [53] that:
The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the

ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
The High Court noted at [32] that “the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.” However, that is not to say that a decision of the Tribunal can only be vitiated by fraud in the manner that arose in SZDFE. The High Court noted at [8] that “fraud is infinite in variety”.
The parties did not address the court on the meaning of fraud. I note that the High Court did not attempt to define fraud in SZFDE and, in fact, noted at [8] that the courts traditionally have declined to define it. However, the Concise Australian Legal Dictionary Third Edition Butterworths 2004 defines fraud as, “An intentional dishonest act or omission done with the purpose of deceiving”. I accept that as a working definition of fraud for present purposes.
Apart from SZFDE, the parties did not refer the court to any of the many cases that have now been decided in relation to fraud on the Tribunal. However, I note that in Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [32] and [33], Tamberlin, Finn and Dowsett JJ said that, assuming the agent in that case was unregistered, and assuming the applicant was thereby misled:
we do not consider that all of the agent’s acts or omissions vis-a-vis the [applicant] are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal's discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a fraud on the Tribunal.
The Parliament … has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the [applicant's] submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine …. This said, an agent may be fraudulent in his dealings with the visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant's absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-a-vis the visa applicant …. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.
I read those passages as meaning that:
a)a negligent or inadvertent act or omission of an unregistered migration agent, which impacts on the Tribunal’s Pt 7 Div 4 functions, will not necessarily amount to a fraud on the Tribunal which would vitiate its decision;
b)the act or omission must itself involve fraud, in the sense of dishonesty and deceit, for the Tribunal’s decision to be vitiated;
c)the dishonesty and deceit inherent in an unregistered migration agent providing migration services for reward does not necessarily make his negligent or inadvertent act or omission a fraudulent act or omission so as to vitiate the Tribunal’s decision.
Following the hearing, the parties were invited to file written submissions addressing the matters raised in paragraph 19 above. They did so. The first respondent submitted that the law was correctly stated in paragraph 19. The applicant submitted that:
a)SZLIX does not detract from SZFDE;
b)a negligent act which impacts on the Tribunal’s Part 7 Div 4 functions will be a fraud on the Tribunal if it involves fraudulent advice;
c)the fraud of Ms Ouyan in falsely claiming to be a registered migration agent, giving incorrect advice about what the applicant was required to do and giving incorrect advice about what she, the agent, would do, amounted to fraud on the Tribunal;
d)the fraud involved in an unregistered migration agent receiving reward for services makes the agent’s negligent acts a fraud on the Tribunal.
In my view, the applicant’s submissions fail to give proper weight to the Full Federal Court’s unanimous decision in SZLIX. That decision at [33] was that the relevant act or omission of an unregistered migration agent must itself be a fraud on the applicant, rather than merely negligence towards the applicant, to amount to a fraud on the Tribunal. SZLIX is, of course, binding upon me. I consider that the effect of SZLIX is correctly stated in paragraph 19 above.
In SZLHP vMinister for Immigration and Citizenship [2008] FCAFC 152, the Full Federal Court held that the Tribunal's decision was not vitiated by fraud where the applicant had colluded in the deception. In that case, the applicant had colluded in the deception by knowingly signing a false application for a protection visa and had intentionally not attended the Tribunal hearing because his attendance would reveal the falsity in his application.
In SZMWT vMinister for Immigration and Citizenship [2009] FCA 559 at [21], it was held that the fact that the applicant signed blank forms did not indicate that he knew about or was complicit in the fraud on the Tribunal. The fraud in that case arose in circumstances where the agent had forged the applicant's signature on the application for review, for the purposes of concealing the agent’s involvement, and had said to the applicant:
if work rights have been granted you do not need to worry about anything else … I will look after everything else.
The court held that advice was not merely bad or negligent because the agent must have known it to be false, because it induced the applicant to not attend the Tribunal hearing and because it thereby disabled the Tribunal from its statutory function.
In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980, Besanko J said at [34]:
the fraud must affect the process prescribed by the Act, in particular, whether the applicant has had the opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

The applicant’s evidence in chief

The applicant gave evidence viva voce and relied on the documents in the court book. In her application lodged on 31 January 2006 for a skilled independent overseas student visa, the applicant gave her address for correspondence as PO Box 99, Flinders Lane, Melbourne, Victoria, 8009. The applicant did not indicate that she had a migration agent or an authorised recipient.
However, in oral evidence, the applicant said that a migration agent by the name of Melanie Ouyan, of WAH Education, helped her to complete the application form. The applicant said Ms Ouyan was her friend's agent. The applicant said she met Ms Ouyan in an office building in the city. The applicant said that she did not ask Ms Ouyan if she was a migration agent but trusted that she was. The applicant also said Ms Ouyan told her she had done many cases including the applicant’s friends’ case.
The applicant said that Ms Ouyan asked her for $4,800. The applicant said that she paid $2,000 in cash on that day. She said she withdrew the money from her bank account. The applicant said that she borrowed $2,800 from a friend she met at college in 2004. She said that she saw the friend two or three days a week but could not remember her name. The applicant said that she did not obtain a receipt for these payments.

The applicant said that the only things that she wrote on the visa application form were an email address and her parents’ names and dates of birth. Otherwise, she said all the handwriting was someone else's. The applicant said that apart from her own handwriting, the form was blank when she signed it.
The applicant said that PO Box 99 Flinders Lane was Ms Ouyan's address. The applicant said that Ms Ouyan gave her a business card but she lost it with her wallet.
When her visa application was refused, the applicant said she went back to Ms Ouyan who advised her to apply to the Tribunal. Ms Ouyan told the applicant she would have to pay $4,000 for Ms Ouyan’s fees and $1,400 for the Tribunal fee. The applicant said she paid that money the following day but did not get a receipt. The applicant said that she wrote her address on the application for review but it was otherwise blank when she signed it.
In her application for review by the Tribunal, a representative was nominated to act on behalf of the applicant. The representative was stated to be Miss Xie Yonghui of WAH Education Services, PO Box 99, Flinders Lane, Victoria, 8009, with registered migration agent number 0636524 and telephone number 613 9650 0398. The application for review said that the applicant wished correspondence to be sent to her representative who she nominated as her authorised recipient. The applicant said in oral evidence that she had never heard of Miss Xie Yonghui.
The Tribunal sent a letter dated 28 March 2008, regarding further evidence of an IELTS test, to Miss Xie of WAH Educational Services at PO Box 99, Flinders Lane, Victoria, 8009. The applicant said that she had never seen that letter or received any telephone calls or emails about it from her agent.
The Tribunal sent a hearing invitation to the PO Box 99 address on

31 March 2008
. The applicant said Ms Ouyan showed her that letter on or about 10 April 2008 and told her when she needed to attend the Tribunal. The applicant said she asked Ms Ouyan to go to the hearing with her but she refused.
On 13 April 2008, a typed letter was sent to the Tribunal stating that the applicant had booked another IELTS test on 26 July 2008. The applicant said that Ms Ouyan typed that letter in her office and the applicant signed it.
A response to hearing invitation was sent to the Tribunal saying that the applicant would attend the hearing and giving her contact telephone number as 0421 222 365. The applicant said that she signed that form but otherwise it did not contain her handwriting. She said the telephone number was her own number.
The applicant attended the hearing on 21 April 2008 as scheduled. Her migration agent did not attend. The Tribunal gave the applicant until 15 August 2008 to provide the results of her test booked for 26 July 2008.
The applicant said that immediately after the Tribunal hearing, she went to Ms Ouyan’s office. The applicant said Ms Ouyan told her that she just needed to do the test and did not need to do anything else. The applicant said that Ms Ouyan asked her for another $2,000. The applicant said that she gave her that money but again did not ask for a receipt.
The applicant said that she became really sick three days before she was due to sit her test on 26 July 2008. She said her eyes were really red and very sore. She said she could not open her eyes and could not see clearly. The applicant said that she telephoned Ms Ouyan and told her that her eyes were really sore and she could not sit the test. Ms Ouyan said that it was okay and she would help the applicant to contact the Tribunal.
The applicant said that she went to a doctor on 1 August 2008, eight days after the problem began. She said that she did not go to the doctor earlier because a friend had told her to use eye drops. The applicant produced an invoice from Dr Feng Yang for services rendered to the applicant on 1 August 2008 together with an EFTPOS receipt for her payment for those services. The invoice described the service as “Level B Surgery” but did not give any indication of the nature of the applicant's medical condition.
The applicant said that after she saw the doctor, she went to see Ms Ouyan. The applicant said she showed her the original invoice from the doctor. Ms Ouyan took copy of it and returned the original to her. The applicant said that Ms Ouyan said to leave it to her and she would contact the Tribunal.
The applicant said that on 12 August 2008, she made another booking for an IELTS test. The booking form is contained in the court book.
A Tribunal case note shows that on 18 August 2008, a Tribunal officer telephoned the applicant to enquire about the result of the test scheduled for 26 July 2008. The note stated that:
[The applicant] stated that she was sick and was unable to attend test. [The applicant] stated that she has re- booked a test for 20/11/08. [The applicant] stated that she has given this information to her [authorised recipient]. I stated that she or her [authorised recipient] may provide a written explanation of the situation to the Tribunal ASAP by fax.
The applicant agreed that the Tribunal's case note was accurate. The applicant said that she was shocked to receive the call from the Tribunal because she thought her agent was going to fix everything for her. The applicant said that she went straight to Ms Ouyan's office. The applicant said Ms Ouyan said that everything would be okay and she just needed to fax to the Tribunal the booking form for the next IELTS test.
The applicant said that Ms Ouyan wrote out some words for the applicant to copy on to the bottom of the booking form. The applicant said she copied them on to the booking form as follows:
Due to my medical condition. I couldn't sit for my last IELTS test. … please wite (sic) my this (sic) IELTS test result.
The applicant said that Ms Ouyan told her that Ms Ouyan's fax machine was broken and the applicant should take the booking form downstairs to fax it from there. The applicant faxed it to the Tribunal from downstairs later on 18 August 2008.
The applicant said that Ms Ouyan telephoned her again and said that she could have another session in court on 21 August 2008. The applicant attended the Tribunal on that date and was given the Tribunal's decision. The applicant said that she went to see Ms Ouyan immediately. The applicant said she was very angry and decided to get a new agent.

The cross-examination of the applicant

It was put to the applicant in cross-examination that Ms Ouyan had never told her that she was a migration agent. The applicant said she had said that. It was put to the applicant that she had never seen any signage that Ms Ouyan was a migration agent or a registered migration agent. The applicant said that she had not seen a sign but had seen Ms Ouyan’s business card.
The applicant was also cross-examined about whether she had read the statement on her application form to the effect that giving false or misleading information was subject to penalties under the Migration Act. The applicant said that she had not read that statement.
The applicant was taken to her affidavit sworn on 6 March 2009 in which she said that she had bank records of withdrawals in 2007 and 2008. It was put to the applicant that she said that she had first gone to see the agent at the end of 2005. The applicant agreed that her oral evidence was different from her affidavit evidence and maintained that she had first seen Ms Ouyan at the end of 2005.
It was put to the applicant that it was not plausible that she would have forgotten the name of her friend who had lent her $2,800. The applicant reiterated that she had forgotten the name.
The applicant repeated that when she signed the application for review by the Tribunal, the information about Miss Xie Yonghui was not on the form.
The applicant confirmed that she paid the $4,000 plus $1,400 with money received from her mother. She said that a friend, who she named, brought the money to Australia for her. She said that she was still friends with that person but had not asked her to come to court.
The applicant was asked whether she was worried that she would not be able to make the test on 26 July 2008. The applicant said yes. She was then asked what she did about it. The applicant said that she contacted her agent and told her that she was sick and could not go to the test. It was not put to the applicant that this was not true.
The applicant said that on 12 August 2008 she made another booking for an IELTS test which was scheduled to be conducted on

29 November 2008
.
It was put to the applicant that there was nothing in the medical evidence that indicated that she had had sore eyes. The applicant replied, “I have it.” Counsel for the first respondent put to the applicant that she only had a receipt from the doctor but it did not say that she had an eye problem. The applicant replied, “Yes, they have the document for that.” Counsel then said, “But it doesn't say that?” The applicant replied. “It say eyes problem.”
The applicant was then shown Exhibit A6 which is the invoice from her doctor. She was asked where it said on the invoice that she went to the doctor because of an eye problem. The applicant replied, “Not this one, I have another one.” She said she had given it to her lawyer, meaning her current solicitor.
The gist of the applicant's evidence was that she had a medical certificate that said she had an eye problem at around 26 July 2008. The applicant indicated that she had shown the doctor’s invoice to

Ms Ouyan but not the medical certificate. The applicant reiterated that she had a medical certificate, which was in the possession of her lawyer, as at the time of the hearing. The medical certificate was not produced to the court.
The applicant said that she did not ask Ms Ouyan on 1 August 2008 if she had contacted the Tribunal. The applicant said that she just trusted her because she was her agent.

No other evidence

There was no re-examination of the applicant. The applicant did not call any other witnesses. More particularly, the applicant did not call her solicitor, who was present in court and instructing counsel, to produce the medical certificate referred to by the applicant or explain why she did not do so. The first respondent did not call any witnesses.

Findings

In a matter such as this, it is for the applicant to prove her case. The usual civil standard applies except that any finding of fraud could only be made in accordance with the principle in Briginshaw.
The first respondent argued in written submissions filed before the hearing that the applicant fabricated the claims that Ms Ouyan held herself out to be a registered migration agent and that she represented the applicant. In fact, the first respondent submitted, the applicant knew that she was represented by Miss Yonghui Xie of WAH Education Services, registered migration agent no. 0636524.
However, it was not put to the applicant during cross-examination that she had fabricated the involvement of Ms Ouyan. It was not put to the applicant that she was, and knew that she was, represented by Miss Xie. On the contrary, the cross-examination proceeded on the basis that Ms Ouyan had assisted the applicant with her visa and review applications and the applicant knew that it was Ms Ouyan who had assisted her. Accordingly, I find that the applicant was assisted with her visa and review applications by Ms Ouyan.
The applicant did not produce any documentary evidence that Ms Ouyan was not a registered migration agent. However, the thrust of the cross-examination of the applicant was that Ms Ouyan had not held herself out to be, and was not, a registered migration agent or any other sort of migration agent, but simply provided assistance to the applicant. I take it that the first respondent, in effect, conceded that Ms Ouyan was not a registered migration agent and I find accordingly.
The first respondent submitted at the commencement of closing addresses that Ms Ouyan did not provide advice to the applicant but merely assistance. Later counsel said that the distinction that she had sought to make between migration assistance and advice was perhaps “an unnecessary comment”.
The first respondent’s argument does not sit well with the provisions of the Act relating to immigration assistance. Section 280 of the Act provides that, subject to certain exceptions, a person who is not a registered migration agent must not give immigration assistance. Section 281 of the Act provides that, subject to certain exceptions, a person who is not a registered migration agent must not ask for or receive any fee for providing immigration assistance. The penalty for a breach is up to 10 years imprisonment. Section 276 of the Act provides that a person gives immigration assistance if the person uses or purports to use knowledge of, or experience in, migration procedure to, among other things, assist a visa applicant by:
a)preparing or helping to prepare a visa application;
b)advising a visa applicant about a visa application;
c)preparing for proceedings before the Tribunal; or
d)representing a visa applicant before the Tribunal.
The first respondent noted in closing addresses that Ms Ouyan may have provided a post office box. However, the first respondent did not seek in cross-examination to establish that Ms Ouyan had only assisted the applicant in that way. The first respondent did not put it to the applicant in cross examination that, contrary to the applicant’s claims, Ms Ouyan had not assisted her by preparing her visa and review applications, advising her about her visa and review applications or preparing for her proceedings before the Tribunal. All in all, I find that Ms Ouyan was not a registered migration agent but she did provide immigration assistance to the applicant in breach of the Act.
The first respondent’s argument arising from this circumstance was not clear. Ultimately, however, it might have been that Ms Ouyan had not been fraudulent because the applicant knew that Ms Ouyan was not a registered migration agent or a migration agent. The import of the applicant’s evidence was that, during the course of her visa and review applications, the applicant thought Ms Ouyan was a legitimate migration agent.
In view of the complexities about migration assistance, migration advice and the migration services that a person may legally provide, I do not consider that there is any basis for concluding that the applicant knowingly and improperly engaged a person who was not a registered migration agent to act on her behalf. I do not consider that a visa applicant who has spent a relatively short period of time in Australia and who has a limited grasp of the English language can be expected to have a clear understanding of the intricacies of the Act regarding who may lawfully give immigration assistance.
I consider that the applicant believed Ms Ouyan to be a legitimate migration agent who was legally able to assist her with her migration applications. Accordingly, I do not consider that this is a case where the applicant has colluded with her representative to deceive the Tribunal. On the contrary, I consider that Ms Ouyan deceived the applicant by representing that she was legitimately able to assist the applicant with her visa and review applications when she was not. I consider that it is immaterial that the applicant had no clear knowledge of who may legally provide immigration assistance, and did not demand evidence that Ms Ouyan was legally able to provide immigration assistance.
The applicant produced a number of bank records but none of them actually demonstrated that she had paid Ms Ouyan any money. The first respondent put it to the applicant that it was not plausible and it was not true that she would forget the name of a friend who lent her $2,800. However, the first respondent did not put it to the applicant that she had not actually paid Ms Ouyan the amounts that she claimed to have paid her and did not foreshadow in the written submissions that this was the first respondent’s case.
Ultimately, the first respondent submitted that there was no need for the court to make a finding about whether the payments were made or not. The first respondent submitted that, if the payments were made to Ms Ouyan, “they’re not to be used to show that they were made to

Ms Ouyan in her capacity as a registered migration agent or as migration agent or as mere adviser because we simply don't have the evidence to establish that.”
Given that the first respondent did not challenge the applicant's claim that she paid Ms Ouyan various amounts of money, I accept the applicant's evidence that she did in fact pay Ms Ouyan the amounts that she claimed. It was not suggested that the applicant had any reason for paying money to Ms Ouyan other than for assistance with her visa and review applications. Accordingly, I accept that the applicant paid Ms Ouyan the amounts she claimed for assistance with her visa and review applications.
The first respondent argued that the applicant had not established through evidence that she suffered any eye condition as at 26 July 2008. The first respondent argued that the applicant had the opportunity to produce medical evidence at the hearing before this court showing that she had an eye condition as at 26 July 2008 but did not do so.
The applicant said that she had very sore eyes around 26 July 2008 and could not open them. The applicant said that she had a medical certificate showing that she had an eye condition, presumably as at

1 August 2008
. However, the applicant did not produce that medical certificate or explain why she had not done so.
The first respondent cross examined the applicant about when she got sick, whether she had gone to work and whether she was worried that she would not be able to make the test. On the other hand, the first respondent did not put it to the applicant that she did not have an eye condition as at 26 July 2008. The first respondent’s written submissions filed before the hearing in this court mentioned the applicant’s failure to provide medical evidence or corroboration of her eye condition. I understand that comment to be addressed to the applicant’s failure to provide that material to the Tribunal, rather than the court. However, in any event, the first respondent did not, in either the preliminary written submissions, or in the cross-examination, squarely raise with the applicant that she was not sick at all on about

26 July 2008. Indeed, the first respondent did not make that submission in closing addresses, but only mentioned the lack of a medical certificate.
In all the circumstances, I accept the applicant's unchallenged evidence that she had very sore eyes and could not open them on about 26 July 2008. The applicant is able to give direct evidence from her own experience that her eyes were very sore and she could not open them. Medical evidence might have provided a diagnosis, for example, that the applicant had conjunctivitis, and might have expressed the opinion that conjunctivitis would have caused the applicant to have sore eyes and would have caused her to be unable to open them. However, it was not necessary for the applicant to produce medical evidence about a diagnosis and the effects of a particular condition, in circumstances where she gave unchallenged evidence from her own knowledge about how she felt and what she was unable to do.
The first respondent put it to the applicant that she told Ms Ouyan that she was sick but did not tell her that she had sore eyes. The applicant maintained that she did tell Ms Ouyan that she had sore eyes. The first respondent pointed out that the first time that the applicant mentioned in any of the documents before the court that she had sore eyes was in February 2009. The implication was that the applicant’s claim to have told Ms Ouyan on around 23 July 2008 that she had sore eyes and would not be able to sit the IELTS test on 26 July 2008 was a matter of recent invention.

The applicant said a number of things in her oral evidence which did not ring true, such as forgetting the name of the friend who had lent her $2,800 and not getting any receipts for the large amounts of money that she paid. However, the applicant was not shown to have lied about any matters. There was one potential inconsistency. The applicant agreed that the evidence in her affidavit sworn on 6 March 2009 to the effect that she had bank records showing that she had paid Ms Ouyan a large amount of money in 2007 and 2008 was different to her oral evidence that she paid Ms Ouyan money in 2005. However, there is no necessary inconsistency. The applicant may well have paid Ms Ouyan a large amount of money in 2007 and 2008 for which she had bank records and also paid her some money in 2005.
In circumstances where the applicant has not been shown to have lied about anything, I accept that the applicant told Ms Ouyan on about

23 July 2008 the nature of her illness, namely, that she had sore eyes. I can see no reason that the applicant would not have told Ms Ouyan the nature of her illness.
The applicant’s claim that, in response to this information, Ms Ouyan told the applicant on or about 23 July 2008 that it was okay and she would help the applicant to contact the Tribunal was not challenged in cross-examination. Similarly, the applicant’s claims that Ms Ouyan told her on 1 August 2008 to leave it to her and that she would contact the Tribunal were not challenged in cross-examination. Accordingly, I accept those claims.
It was put to the applicant that there was nothing in the medical evidence that said she had sore eyes. The applicant claimed that she did have a medical certificate saying that she had an eye problem. She said that she gave the medical certificate to her current solicitor who was sitting in court instructing counsel. The applicant did not produce the medical certificate and did not explain why she did not produce the medical certificate.
I do not accept that the applicant has a medical certificate which indicated that she had an eye problem at about 26 July 2008. I consider that if the applicant did have such a certificate, her legal advisers would have ensured that it was put into evidence. It was not put to the applicant that she lied about having a medical certificate stating the relevant matters. In the circumstances, I simply conclude that the applicant was mistaken.
The first respondent argued that paragraph 21 of the Tribunal's reasons for decision, which is set out above, indicated that the Tribunal refused to grant further time because the applicant had had ample opportunity to sit the test. However, that submission is not entirely accurate. The Tribunal gave two reasons for refusing further time. One was that the applicant had had ample opportunity to sit the test. The other reason was that the applicant had not provided any medical evidence to explain her failure to attend the test on 26 July 2008. Accordingly, it is conceivable that, if the applicant had provided the appropriate medical evidence, the Tribunal would have granted further time.
In summary, my findings in this case are:
a)Ms Ouyan represented the applicant in her visa and review applications;
b)Ms Ouyan was not a registered migration agent;
c)the applicant paid Ms Ouyan substantial sums for her migration services;
d)the applicant had sore eyes on about 23 July 2008 which prevented her from sitting her IELTS test scheduled for 26 July 2008;
e)the applicant told Ms Ouyan that fact on or about 23 July 2008;
f)Ms Ouyan told the applicant that it was okay and she would contact the Tribunal for the applicant;
g)the applicant saw a doctor on 1 August 2008 but did not obtain a medical certificate;
h)the applicant saw Ms Ouyan on 1 August 2008 who again said to leave it to her and that she would contact the Tribunal;
i)Ms Ouyan did not contact the Tribunal on 23 July 2008, 1 August 2008 or at all; and
j)the failure to provide a medical certificate may have affected the Tribunal’s decision.

Conclusions

The applicant argued that the fraud in this case consisted of Ms Ouyan extracting money from the applicant under false pretences, namely, falsely representing that she was a registered migration agent. That conduct clearly constituted a fraud on the applicant. However, it did not in itself constitute a fraud on the Tribunal.
The applicant then argued that the applicant did not provide a medical certificate to the Tribunal because she thought Ms Ouyan would send it on her behalf. However, that was not the applicant’s evidence. She did not say she thought that Ms Ouyan would send a medical certificate to the Tribunal on her behalf. The applicant merely said that Ms Ouyan said that she would look after the matter and would contact the Tribunal on the applicant’s behalf. The applicant then said that a proper agent would have told the applicant to get a medical certificate straight away and would have provided it to the Tribunal.
Ms Ouyan’s failure to contact the Tribunal before 26 July 2008, when the applicant was due to sit the test, and her failure to advise the applicant to obtain a medical certificate, were negligent. However, the negligent conduct of an unregistered migration agent is not necessarily a fraud on the Tribunal: SZLIX. It may simply be negligence of the type the High Court said in SZFDE would not vitiate the decision.
The applicant argued that Ms Ouyan could not telephone the Tribunal and say that the applicant was sick because Ms Ouyan would then have been exposed as a person who was representing the applicant even though she was not a registered migration agent. However, Ms Ouyan, without risk to herself, could have advised the applicant to get a medical certificate and send it to the Tribunal with a statement that she was unable to sit the test because she was unwell. Ms Ouyan, on other occasions, had told the applicant herself to send notes to the Tribunal, and had drafted them for her.
Moreover, I see no basis for concluding that there was deceit or dishonesty in Ms Ouyan’s failure to tell the applicant to get a medical certificate. It is the case that Ms Ouyan told the applicant that she would look after the matter and did nothing. However, I consider

Ms Ouyan’s failures to be in the nature of negligence rather than deceit or dishonesty. There was no reason for Ms Ouyan to be deceitful or dishonest, when, without risk to herself, she could have told the applicant to obtain and send the medical certificate to the Tribunal.
This case is distinguishable from SZFDE in that Ms Ouyan did not say anything to the applicant that was deliberately deceitful or dishonest. Unlike the agent in SZFDE, Ms Ouyan did not tell the applicant a lie, such as that the Tribunal was not accepting any visa applications at the moment and its process was a sham, which caused the applicant not to attend the Tribunal hearing.
Accordingly, I do not consider that Ms Ouyan’s failure to tell the applicant to get a medical certificate was motivated by Ms Ouyan’s desire to avoid exposure. It was simple negligence. This case is distinguishable from SZFDE on that basis. For these reasons, I consider that Ms Ouyan’s acts and omissions in this case amounted to negligence rather than fraud. The application must be dismissed on that basis with costs.
For completeness, I note that the first respondent also argued that, when the Tribunal refused a further extension of time, the Tribunal had the document that the applicant sent to the Tribunal on 18 August 2008. Accordingly, the Tribunal knew that the applicant claimed to have a medical condition which prevented her from sitting the IELTS test on 26 July 2008. The first respondent said that the only additional material that had been mentioned during the hearing was the hypothetical medical certificate and the receipt for a medical consultation on

1 August 2008
. The implication seemed to be that Ms Ouyan’s actions and inactions had no appreciable impact on the decision.
However, it seems to me that these matters go to the Tribunal’s discretion to extend time or not. The Tribunal gave two reasons for refusing a further extension. One was that the applicant had already had ample time to provide the test results and the other was the absence of any medical evidence that the applicant had been sick. I can only conclude that the timely provision of medical evidence might have made a difference to the decision. If there had been fraud in the failure to provide medical evidence, it may have been sufficient to vitiate the decision.
The first respondent also argued that the actions of Ms Ouyan did not stultify the operation of the critically important natural justice provisions under the Act. The High Court in SZFDE placed special emphasis on the natural justice provisions in Pt 7 Div 4 of the Act, and, in particular, s.425 and s.426A of the Act. SZFDE concerned the Refugee Review Tribunal. The present application concerns the Migration Review Tribunal. The equivalent of Pt 7 Div 4 as far as the Migration Review Tribunal is concerned is Pt 5 Div 5. That division is headed Conduct of Review. It deals with everything that occurs between the Tribunal being constituted and the Tribunal making its decision. The equivalents of s.425 and s.426A in matters dealt with by the Migration Review Tribunal are s.360 and s.362B of the Act. They concern the hearing invitation and the consequences of a failure to appear.
The present case did not concern those specific provisions. In the present case, the applicant had a hearing before the Tribunal which she attended. She sought at the hearing and was given further time to provide the results of an IELTS test scheduled for 26 July 2008. The applicant was unable to sit that test. The alleged fraud was said to have impacted on the applicant’s request for yet more time to sit yet another test.
In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980, Besanko J said at [34]:
the fraud must affect the process prescribed by the Act, in particular, whether the applicant has had the opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
That statement appears to mean that only a fraud which had the effect of denying the applicant the opportunity to appear at a hearing before the Tribunal would vitiate the decision. The alleged fraud in this case did not deny the applicant an opportunity to appear at a hearing before the Tribunal. However, it is probable that, if the Tribunal had given an extension of time, it would have allowed evidence that the applicant had passed the test to be submitted otherwise than at a hearing, and would have taken that evidence into account in its decision.
Accordingly, if the failure to provide medical evidence had been the result of fraud, it may have been sufficient to vitiate the decision. However, in view of my conclusion that the failure to provide the medical evidence was not the result of fraud, but the result of mere negligence, it is not necessary to decide this point.
For these reasons, the application must be dismissed with costs.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Ashika Kanhai

Date: 26 June 2009