Majid v Minister for Home Affairs - [2020] FCCA 3186

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAJID & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 3186

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Fraud in relation to Subclass 457 visa application – application for judicial review of decision of Administrative Appeals Tribunal which found that it did not have jurisdiction to review a decision of the Delegate of the Minister for Home Affairs refusing to grant to the applicants Temporary Work (Skilled) (Class UC) (Subclass 457) visas and further for a declaration that the original application to the Minister for Subclass 457 visas was not a valid application under s.46 of the Migration Act 1958 (Cth) – Applicants claimed that the migration agent who formerly represented them committed fraud on them and on the Department of the Minister which had the effect of stultifying the decision-making process – HELD: former migration agent is a dishonest fraudster and acted fraudulently – however first applicant colluded with the former migration agent and was complicit in the fraud – no jurisdictional error established – application for judicial review dismissed

Legislation:

Evidence Act 1995 (Cth), s.91

Migration Act 1958 (Cth), ss.46, 47, 48, 65, 140E, 140GB

Migration Regulations 1994 (Cth)

Cases cited:

Heo v Minister for Immigration [2020] FCCA 586

Kang v Bishop & Ors [2018] NSWSC 46
Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464
Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1
Minister for Home Affairs v DUA16 (2019) 273 FCR 213
Salh v Minister for Immigration [2019] FCCA 2096
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Twyne’s Case [1601] 76 E.R. 809

First Applicant:

MOHAMMED MAJID

Second Applicant:

SHAESTA KOWNAIN

Third Applicant:

SAFA MAJID

Fourth Applicant:

ZAYAN MOHAMMED

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 780 of 2019

Judgment of:

Judge Dowdy

Hearing dates:

8 November 2019, 2 December 2019

and 16 December 2019

Date of Last Submission:

20 December 2019

Delivered at:

Sydney

Delivered on:

27 November 2020

REPRESENTATION

Counsel for the Applicants:

Mr P. Guan

Solicitors for the Applicants:

Paul Guan & Associates

Counsel for the First Respondent:

Mr G. Johnson of Counsel

Solicitors for the First Respondent:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

By consent, order that the Third Applicant cease to be a party to this proceeding under Rule 9.08 of the Federal Court of Australia Rules 2011 as a party who had been improperly joined.
Grant leave to the Applicants to file in Court on 16 December 2019 a Further Amended Application dated 14 December 2019.
The Further Amended Application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 780 of 2019

MOHAMMED MAJID

First Applicant

SHAESTA KOWNAIN

Second Applicant

SAFA MAJID

Third Applicant

ZAYAN MOHAMMED

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicants in this proceeding are as follows:
a)the First Applicant is a male citizen…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Majid v Minister for Home Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 3186
Decision Date: 27 November 2020

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Dowdy considered an application for judicial review brought by Mr. Majid and other applicants against the Minister for Home Affairs. The applicants sought to challenge a decision of the Administrative Appeals Tribunal (AAT) which held that it lacked jurisdiction to review the Delegate of the Minister's refusal to grant Subclass 457 visas. Additionally, the applicants sought a declaration that their original applications for these visas were invalid under section 46 of the *Migration Act 1958* (Cth). The core of their claim was that their former migration agent had engaged in fraud against both them and the Department, thereby vitiating the decision-making process.

The central legal issues before the Court were whether the AAT had erred in finding it lacked jurisdiction to review the visa refusal, and whether the original visa applications were valid under section 46 of the *Migration Act*. These issues hinged on the alleged fraudulent conduct of the migration agent and the applicants' knowledge and involvement in that conduct.

Justice Dowdy found that while the former migration agent was indeed a dishonest fraudster who acted fraudulently, the first applicant was complicit in this fraud. The Court determined that this complicity meant no jurisdictional error had been established in relation to the AAT's decision. Consequently, the application for judicial review was dismissed.

Orders