Marimuthu v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1636
•9 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marimuthu v Minister for Immigration and Citizenship [2025] FedCFamC2G 1636
File number: MLG 482 of 2019 Judgment of: JUDGE FORBES Date of judgment: 9 October 2025 Catchwords: MIGRATION – judicial review of decision of the Administrative Appeals Tribunal to affirm cancellation of Skilled Recognised Graduate visa – common ground that visa application attached bogus documents – whether bogus document ‘given or caused to be given’– whether applicant victim of fraud by migration agent - knowledge of visa applicant – whether Tribunal failed to make obvious inquiries – whether Tribunal considered all relevant facts and arguments – application dismissed Legislation: Migration Act 1958 (Cth), ss, 5(a), 5(b), 98, 99, 100 101, 102, 103, 104, 105, 107, 107(1)(b), 108, 109, 359A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r 13.06(1)(c), 17.05(2)(a)
Migration Regulations 1994 (Cth), reg 2.41
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
Ali v Minister for Immigration and Border Protection [2020] FCA 191
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464
Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1
Minister for Immigration v Rajalingham (1999) 93 FCR 220
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
NAWZ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 199
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211
SZJGO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146
SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 24 September 2025 Date of hearing: 24 September 2025 Place: Melbourne The Applicant: In person Counsel for the First Respondent: Mr Cunynghame Solicitor for the First Respondent: Sparke Helmore Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 482 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARAVINDH MARIMUTHU
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
9 OCTOBER 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The application filed 22 February 2019 seeking judicial review of the decision of the Administrative Appeals Tribunal made on 13 February 2019 to cancel the Applicant’s visa is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $9,097.93.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 13 February 2019, the Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the Minister to cancel the applicant’s Skilled Recognised Graduate (Class VF) (Subclass 476) visa (visa). By an application filed on 22 February 2019, the applicant sought judicial review of the Tribunal’s decision.
On 10 December 2024, the application for judicial review was dismissed by a Registrar of this court for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules). On 5 March 2025 the application was reinstated by the Registrar.
The applicant now presses the reinstated judicial review application. For the reasons set out below, I have decided that the application should be dismissed.
BACKGROUND
For the purpose of these reasons, I adopt and reproduce the summary contained in the paragraphs [4]-[13] of the Minister’s outline of submissions dated 26 February 2025 including the references to paragraphs of the Tribunal’s reasons and Court Book (CB) pages. Based on my own reading of the Court Book and the Tribunal’s reasons I am satisfied that the Minister’s summary is fair and balanced.
On 19 September 2017, the applicant, an Indian citizen, applied for a Skilled Recognised Graduate (Class VF) (Subclass 476) visa (visa)[1].
[1] Supplementary Court Book (SCB), 1-10.
On 8 November 2017, the applicant was granted the visa. The visa was to remain in effect until 29 June 2019[2].
[2] Court Book (CB), 23.
On 3 August 2018, a delegate of the Minister (delegate) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) pursuant to s 107 of the Migration Act 1958 (Cth) (Act). The delegate had formed the view that the applicant had not complied with s 101(b) and s 103 of the Act, grounds upon which the Minister can cancel a visa under s 109.
The NOICC stated that the department had undertaken integrity checks regarding the applicant’s Bachelor of Engineering in Electronics and Instrumentation Engineering (the degree) awarded from Kongu Engineering College. The integrity checks had identified that the academic transcript provided with the applicant’s visa application contained identical scores, grades and dates as bogus academic transcripts provided by other applicants and that the personal identifiers had been amended to match the applicant’s details. The NOICC indicated that it appeared that the applicant had provided the department with incorrect information regarding his educational qualifications and a bogus document to facilitate the grant of the visa[3].
[3] CB, 5 – 12.
On 6 August 2018, the applicant provided a response to the NOICC.[4] His response included a copy of academic records which showed that he had undertaken studies for a different course, a Bachelor of Engineering in Electrical and Electronics Engineering at Pandian Saraswathi Yadav Engineering College between January 2013 and April 2016.
[4] CB, 13 – 14.
On 24 August 2018, a delegate decided to cancel the visa[5] and gave reasons for doing so.
[5] CB, 19 – 32.
On 27 August 2018, the applicant applied to the Tribunal for review of the delegate’s decision[6].
[6] CB, 33 – 34.
On 9 November 2018, the Tribunal sent the applicant an invitation to comment or respond to information pursuant to s 359A of the Migration Act 1958 (Cth) (Act), with respect to the delegate’s finding that the applicant had been granted the visa on the basis of bogus documents[7].
[7] CB, 38 – 41.
On 23 November 2018, the applicant provided a response to the s 359A letter[8]. On 26 November 2018, the Tribunal sent a follow up to the s 359A letter requesting documentary evidence which the applicant had omitted to attach to his response[9]. The applicant provided the requested documents on the same day[10].
[8] CB, 42 – 45.
[9] CB, 46 – 47.
[10] CB, 48.
On 13 February 2019, the Tribunal affirmed the delegate’s decision to cancel the visa, finding that the applicant had not complied with s 101 and s 103 of the Act[11].
[11] CB, 60 – 66.
SUMMARY OF THE TRIBUNAL’S DECISION
In its reasons dated 13 February 2019, the Tribunal laid out their findings and conclusion. In short compass they were:[12]
[12] CB, 60 – 66.
(1)the academic transcripts provided by the applicant were “bogus documents” within the meaning of s 5(a) of the Act as they purported to have been, but were not, issued in respect of the applicant;
(2)the applicant had given, presented, produced or provided to an officer or the Minister, bogus documents or caused such documents to be so given, produced or provided;
(3)the applicant gave an incorrect answer in his visa application by stating he had completed a Bachelor of Electronics and Instrumentation Engineering from Kongu Engineering College;
(4)the applicant gave a wrong answer by declaring that his visa application and the information therein was complete, correct and up to date;
(5)the Tribunal acknowledged the applicant’s claim that he had given genuine documentation to the agent and was unaware of what information was submitted on his behalf, but found that:
(a)section 98 of the Act states that if the applicant does not fill out his own application form, he is taken to have done so if he causes the form to be filled out on his behalf; and
(b)sections 107, 108 and 109 of the Act apply whether or not the non-compliance was deliberate or inadvertent;
(6)the Tribunal acknowledged the applicant’s claim that his agent was the one who provided the bogus documents and inaccurate information, but was not satisfied that the applicant took adequate steps to ensure that the information and documentation submitted with his application was correct and accurate.
APPLICATION FOR JUDICIAL REVIEW
On 22 February 2019, the applicant filed an application to the Federal Circuit Court of Australia (Court) for judicial review of the Tribunal’s decision. The applicant sought an order that the decision of the Tribunal be quashed, and a writ of mandamus be issued.
In his application for review the applicant listed 7 grounds of alleged jurisdictional error, namely:
1. The Tribunal made an error of law in incorrectly applying s 109(1) of the Migration Act 1958.
2. The Tribunal made an error of law in incorrectly applying its discretion as to whether the Applicant's subclass 476 ought to be cancelled.
3. The Tribunal failed to take into account relevant facts and considerations and took into account irrelevant facts and considerations. Particularly the Tribunal failed to give proper weight to the fact that the Applicant held a complying engineering qualification Bachelor of Engineering in Electrical and Electronics Engineering from Anna University.
4. The Tribunal failed to accord relevant weight to the fact that the Applicant had provided the correct documents and qualifications to his agent in India and it was the agent that lodged the incorrect qualification over which the Applicant had no oversight, control or even ability to check at lodging or after lodging so as to have any opportunity to correct the application.
5. The Tribunal failed to weigh up and consider that the effects of a visa cancellation would be emotionally harmful, embarrassing, disrupt and harm the Applicant's career.
6. The Tribunal's decision was unduly harsh and unfair on the Applicant. There was no evidence the Applicant supplied any bogus document or instructed his agent to do so.
7. The Tribunal failed to consider that as the Applicant already had a complying engineering degree, it would serve no purpose for the Applicant to provide a bogus or other degree from another university in India. The Applicant would have qualified for the visa on his own degree.
DISMISSAL AND REINSTATEMENT
On 2 December 2024, the Court emailed the parties informing them that the applicant’s application for judicial review was listed for a Directions hearing on 10 December 2024. The Court emailed the applicant at his nominated email address for service[13].
[13] SCB, 11 – 12.
On 10 December 2024, the applicant’s application for judicial review was dismissed by Registrar Chapman for non-appearance, pursuant to r 13.06(1)(c) of the Rules. On the same day, the Court conveyed its orders to the parties. The applicant replied to the court claiming that he had been “stuck” attending a “Dandenong clinic at the time” and wished to progress his application. The Court responded by advising that he would need to submit an application to reinstate his matter[14].
[14] SCB, 13 – 14.
The applicant sought reinstatement of his dismissed application for judicial review. Pursuant to r 17.05(2)(a) of the Rules, the Court has the power to set aside orders made in the absence of a party:
(1) …
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a)it was made in the absence of a party; …
The principal considerations for reinstatement are similar to those which apply in extension of time applications. Ultimately, the question for the Registrar was whether it is in the interests of justice to allow the reinstatement.[15] In determining that question and whether the court will exercise its discretion, the court will consider:
(a)the explanation for the non-compliance (in this case the failure to attend a hearing);
(b)the relative prejudice to one or other party of the court’s decision to reinstate or dismiss the application; and, most importantly
(c)the underlying merit of the substantive application.[16]
[15] FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]; Ali v Minister for Immigration and Border Protection [2020] FCA 191 at [35].
[16] FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [53], [56]; AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 (AHN17) at [42].
On 10 February 2025, the applicant filed an affidavit in support of his reinstatement application. His affidavit states:
2. that on 10 December 2024 the Registrar Chapman dismissed my case due to no attendance.
3. I couldn't attend the hearing as I got mixt up with the dates also during the week of the hearing I was sick with COVID.
4. I received a call from register but I was in the medical clinic at the time and soon I realized that mistake I contacted court immediately to explain my mistake
5. Please reinstate my case as it was a genuine mistake and I am determined to prove my innocence in the migration matter.
6. I am determined to prove that I am qualified engineer and my visa was cancelled unjustly and the Tribunal made an error in its assessment.
On 5 March 2025 Registrar Chapman ordered that the application be reinstated and listed for final hearing.
DO THE GROUNDS OF JUDICIAL REVIEW REVEAL JURISDICTIONAL ERROR?
The application for judicial review cites a number of grounds of alleged jurisdictional error. Written submissions filed by the applicant and the Minister addressed each of those grounds.
Over the course of the proceedings, the applicant’s grounds developed, or rather, were refined from the seven grounds advanced in his originating application. It became clear in his oral submissions (to be discussed later in these reasons) that in essence, the applicant relies on three categories of error, which may be framed as follows:
(1)the Tribunal committed jurisdictional error by failing to take into account relevant facts and considerations or by taking into account irrelevant facts and considerations. The applicant complains that his evidence and submissions were not properly considered and weighed by the Tribunal;
(2)the Tribunal committed jurisdictional error by failing to make obvious inquiries about a critical fact, namely the genuineness of the applicant’s true qualifications and the fraudulent conduct of the migration agent; and
(3)the Tribunal decision was affected by jurisdictional error as the fraud of the migration agent had a stultifying effect on its decision-making process.
LEGAL PRINCIPLES
Failure to consider evidence or submissions
It is well accepted that a failure on the part of the Tribunal to consider certain representations may constitute jurisdictional error. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) said at [23]-[27]:
[23] It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26] Labels like “active intellectual process” and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
[27]None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
The Tribunal is not required to refer to every piece of evidence[17]. In some instances, overlooking a particular piece of evidence may support a conclusion that the Tribunal constructively failed to exercise its jurisdiction, but only where the evidence not referred to is of such significance to warrant that inference being drawn[18].
[17] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]; He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at 59 [83]
[18] See, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Failure to make obvious inquiries
The duty imposed on the Tribunal by the Act is not a ‘duty to inquire’, rather it has a ‘duty to review’.[19] The Tribunal has no general duty to proactively gather opinions, information or make assessments regarding documentation other than that which is directly put before it by the applicant.
[19] Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25] (SZIAI).
In SZMJM v Minister for Immigration and Citizenship [2010] FCA 309, Bennett J dealt with the principles relating to jurisdictional error that arises due to the failure of a Tribunal to make inquiries at [31], noting that:
(a)the inquiry must be an obvious inquiry;
(b)the inquiry must concern a critical fact, the existence of which was easily ascertained; and
(c)the inquiry could supply a sufficient link to the outcome to constitute a failure to review.
Whilst failure make an “obvious” inquiry about a critical fact may cause a Tribunal’s decision to be affected by jurisdictional error or may cause it to have constructively failed to exercise jurisdiction,[20] such circumstances are rare and exceptional[21].
[20] SZIAI at [25].
[21] Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] per Kenny J.
Alleged fraud by the applicant’s agent
I dealt with the principles regarding third-party fraud on Tribunals in my recent decision, EAL21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1538 (EAL21) at [33]-[47]. I will not repeat those principles in these reasons, but they can be summarised as follows:
(1)the primary issue in respect of fraud on Tribunals is whether the Tribunal was disabled or “stultified” from discharging its fundamental statutory functions with respect to the conduct of the review[22];
(2)in a case of alleged fraud, the court exercising judicial review may take account of any relevant material placed before it, subject to any applicable procedural and evidentiary rules[23];
(3)often the only effective remedy for victims of fraud in public law is for the tainted decision-making process to be set aside and a “fresh untainted hearing conducted”[24];
(4)the applicants bear the ‘heavy burden’[25] of satisfying the court;
(a)first, that the fraud alleged was a fraud upon them and that they were not complicit in or indifferent to it; and
(b)second, that there was a fraud “on” the decision-maker, in the sense that the fraud affected the decision-maker’s statutory functions and obligations, or adversely affected, disabled or stultified the processes the Act prescribes;[26]
(5)consideration of cases involving issues of fraud in particular circumstances may be distinguished from common law principles of agency[27]; and must involve a consideration of the relevant terms and effects of the legislative provisions, such as the extensive provisions relating to registered migration agents[28].
[22] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 206; [2007] HCA 35 at [49]; (SZFDE).
[23] SZFDE at 203; [38].
[24] SZFDE at 199; [22].
[25] SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146 at [51]; (2013) 216 FCR at 445.
[26] Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464 at 477; [2019] FCAFC 53 at [56]; Maharajan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at 24; [2017] FCAFC 213 at [102].
[27] SZFDE at 199; [22].
[28] Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398 at 410; [52].
THE HEARING
On 24 September 2025, I heard submissions from the applicant, who appeared on his own behalf with the assistance of a Tamil interpreter; and Mr Cunynghame who appeared as solicitor advocate for the Minister.
Applicant’s Submissions
The applicant sought to rely on his written submissions filed on 12 September 2025 and 22 September 2025, which annexed various documents relating to his visa application.
The applicant’s oral submissions distilled his attack on the Tribunal decision to the following propositions:
(1)the applicant concedes that the academic records which were filed with his visa application were bogus documents. They were not his academic records;
(2)the applicant accepts that the visa was granted on the basis of the application lodged and accompanying bogus documents;
(3)when the Department gave notice of its intention to cancel the visa on the ground that there had been misstatements in the application and bogus documents had been supplied with it, the applicant produced his correct academic records and explained that his agent had engaged in the fraudulent conduct;
(4)regardless the Department cancelled the visa;
(5)the applicant sought a review of the cancellation decision by the Tribunal. He says he explained to the Tribunal that there had been a fraud perpetrated by the agency ‘Global Ties’ and that he was the innocent victim. He provided the Tribunal with a copy of his true academic records and made submissions as to why the visa should not be cancelled. He submitted that he had no reason to engage in fraud or supply bogus documents because his true academic record (which he claims to have provided to the agent) demonstrated that he was qualified and met all criteria for a visa;
(6)The applicant alleges that the Tribunal fell into jurisdictional error when it affirmed the delegate’s decision to cancel the visa. The errors made by the Tribunal were:
(a)the Tribunal did not take all relevant facts into consideration, including that the applicant did possess academic qualifications which would have qualified him for the visa and that he was the innocent victim of a fraud perpetrated by his agent;
(b)the Tribunal did not properly “delve into” the genuineness of his true academic records;
(c)it should have been obvious to the Tribunal that the applicant was the victim of a scam and that the circumstances giving rise to the grounds for cancellation were not matters for which he was responsible;
(d)it should have been known to the Tribunal that Indian applicants for skilled migration visas had previously and regularly been the subject of fraud perpetrated by unscrupulous migration agents. The applicant contends that documents received through FOI reveal that the Department was aware of fraud of this type;
(e)the Tribunal incorrectly found that the applicant had instructed the agent;
(f)the Tribunal should have, but failed to, distinguish between fraud committed by an agent and fraud committed by an applicant;
(g)the Tribunal failed to give serious consideration to the real possibility that they may have been wrong in their findings, and the applicant had been the victim of a fraud: Minister for Immigration v Rajalingham (1999) 93 FCR 220;
(h)the Tribunal failed to properly check or make relevant enquiries about the applicant’s genuine qualifications because if it had done so it would have concluded that the applicant was the victim of a fraud/scam; and
(i)the Tribunal wrongly found that the applicant was negligent in making his application.
The applicant conceded that the application attached and was advanced on the basis of documents which the delegate reasonably suspected were bogus documents. The applicant accepts that reasonable suspicion was a proper basis for giving the applicant a notice of intention to cancel the visa. However, as the decision to cancel the visa is discretionary the applicant contends that the Tribunal failed to properly engage in the consideration of relevant facts and circumstances which could have materially informed the exercise of that discretion.
The applicant says that he explained to the Tribunal that he had innocently engaged an agent to make an application his behalf, that he provided all necessary documentation for a valid application to be made, that he had limited involvement in the application paperwork and had no involvement in or knowledge of the fact that bogus academic records would be included with the application.
The applicant submitted that he made submissions and provided documents which should have led the Tribunal to conclude that he had been the innocent victim of a fraud scam perpetrated by the agent. That fraud, the applicant submits, should have been self-evident from the fact that the applicant possessed academic records which met the visa criterion such that the Tribunal should have dismissed the possibility of the applicant having any motive to involve himself in the fraud.
The applicant also submitted that if the Tribunal had delved into and made proper enquiries about the genuineness of his true academic records and his claims about the fraudulent conduct of the agent (including that the agent had prepared the visa application and made false declarations on behalf of the applicant), the Tribunal would have come to the conclusion that the applicant was an innocent victim, a conclusion which would have heavily weighed in favour of not exercising the discretion to cancel the visa.
The applicant submits that the Tribunal’s finding that the applicant was complicit in or indifferent to the agents conduct would not have been open to it if the Tribunal had properly considered all the information before it and made proper enquiries. In essence the applicant submits that the Tribunal was never open to the real possibility that his explanation was true.
Minister’s Submissions
The Minister relied upon all of the written submissions filed in this proceeding and the affidavit of solicitor, Jeremy Hutton which annexed a complete response to a Freedom of Information request made by the applicant. That affidavit ran to over 600 pages.
The Minister submitted that the applicant bears the onus of establishing fraud and of establishing the decision-making failures alleged against the Tribunal.
Minister submitted that the applicant’s case runs into the following difficulties:
(1)it was an uncontested fact that the application contained academic records which the delegate reasonably suspected, and which in fact were, bogus documents. The visa was granted on the basis of that application and those documents;
(2)in a submission to the delegate the applicant accepted that he was responsible for documents he signed. In fairness, he added that he did not expect someone to alter his application, but he fundamentally accepted the notion that he, as applicant, was responsible for the application;
(3)the applicant’s explanation that the grounds for cancellation arose as a consequence of the agent’s fraud and that he was the innocent victim thereof, was in fact considered by the Tribunal and rejected. The Tribunal did consider his explanation and the documentation provided in support of it, including what the applicant claimed to be his genuine academic record. Accordingly, the Minister submits that there can be no basis to the allegation that the Tribunal failed to consider this issue or that it was stultified in the exercise of its statutory function.
The applicant argued that the Tribunal did not “delve” into the genuineness of the academic records (which showed that he had obtained legitimate engineering qualifications) and that it did not consider the “crux” of the matter. The applicant also claimed that the Tribunal failed to “investigate” whether the applicant was the victim of a scam when it knew or ought to have known that fraud by unscrupulous agents was widespread.
In response to these lines of argument, the Minister says that the Tribunal did what it was required to do. The Minister submits that the Tribunal’s statutory task does not extend to undertaking enquiries on behalf of an applicant or making his case for him. The applicant bears the onus of putting evidence before the Tribunal and of persuading the Tribunal to exercise its discretion his way.
The Minister submits that there were glaring gaps in the evidence provided to the Tribunal and that those gaps could not be filled by the documents or evidence on which the applicant sought to rely in the judicial review hearing. There is no evidence about critical matters such as: the circumstances in which the applicant engaged the migration agent; the nature of the relationship with the agent, including financial arrangements; the instructions given to the agent; how the visa application was prepared, signed or submitted; and very little evidence of the communications between the applicant and the agent.
The Minister submitted that the Tribunal properly understood the applicant’s submission that he had been the innocent victim of a fraud and properly took into account documentation provided in support of that claim. Having done so and noting the significant deficits in the evidence which could have been filled by the applicant, it was perfectly open to the Tribunal to make the findings it did. The claim by the applicant that he holds qualifications which would have met the criteria for the issue of a visa was not overlooked and it was not in any event determinative.
The Minister submits that there was no error in the decision-making process and the applicant’s disagreement with the decision to cancel amounts to a claim for impermissible merits review. The Minister submits that there was sufficient material before the Tribunal for it to have concluded, in effect, that the applicant was complicit in or indifferent to any fraud on the part of the agent. Rhetorically, the Minister asks why an agent would file bogus documents if the client had supplied all correct documentation to him which would have met the criteria for the grant of a visa. The Minister submits that these unusual circumstances give rise to an inference that the applicant was not an innocent victim as he claimed to be.
The Minister also submitted that unlike many other fraud cases which come before the court in judicial review proceedings, this is not one where the applicant was entirely oblivious to the application process or where he had been deliberately kept in the dark by fraudulent agent (cf, EAL21 referred to above). In this case there is some evidence of communications between the applicant and the agent and evidence that the applicant had a hand in supplying information for and signing the visa application.
Any claim by the applicant that the fraud perpetrated by the agent had the effect of stultifying the performance by the Tribunal of its statutory duties is rejected by the Minister.
CONSIDERATION
The decision to cancel a visa is discretionary. It requires consideration of a number of factors (see the Migration Regulations 1994 (Cth) (regulations)) including the circumstances giving rise to the reason for cancellation - here, the circumstances giving rise to the inclusion of bogus documents and misstatements contained in the visa application itself.
There are a number of facts about this case which cannot be contested. First, are the requirements of the statutory regime which gave rise to the notice of intention to cancel. Relevantly, these requirements can be summarised as follows:
(a)s 98 of the Migration Act provides that a non-citizen who does not fill in his or her application form is taken to have done so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. That is, pursuant to s 98, an applicant will be “fixed with responsibility for the actual content of [the] false application [which is] filed on his behalf”: NAWZ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 199 at [16]. This will be the case regardless of whether the applicant was aware of the contents of the application or specifically authorised the inclusion of incorrect information: SZJGO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [7]-[8].
(b)s 99 provides that any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf is taken to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise;
(c)s 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or because the answer to be given or provided, did not know that it was incorrect;
(d)s 101 provides that a non-citizen must fill in or complete his or her application form in such a way that all questions on it are answered and no incorrect answers are given or provided;
(e)s 103 prohibits a non-citizen from giving, presenting, producing or providing a “bogus document” or causing such a document to be given, presented, produced or provided;
(f)s 104 requires an applicant to inform the Department of correct answers if his/her circumstances change so that any answer to a question on the application form is correct in the new circumstances;
(g)s 105 requires a non—citizen to notify the Department in writing if he or she becomes aware that information provided in his application form was incorrect when it was given.
Pursuant to s 109, the Minister may cancel a visa on the basis that a non-citizen has provided incorrect information. However, before the Minister can cancel a visa, the Minister (or his delegate) must first send the applicant a notice which complies with s 107. A notice under s 107 must set out the specifics of the applicant’s alleged non-compliance with any of ss 101, 102, 103, 104 or 105. Compliance with the provisions in s 107 is a statutory prerequisite to the Minister exercising discretion to cancel under s 109.
Subsection 107(1)(b) affords the applicant the right to provide a written response to the alleged non-compliance. The applicant can either accept or dispute the allegations contained in the notice and may show cause why the visa should not be cancelled. If the applicant responds to the notice, he or she must do so without making any incorrect statements.
The power to cancel a visa under s 109 is discretionary. The power is conditioned by the Minister first deciding that there has been non-compliance, secondly by considering any response to the notice provided by the applicant and thirdly by considering the circumstances prescribed in regulation 2.41 of the regulations.
Secondly, the following facts do not appear to be disputed:
(a)in his visa application form, in response to a question about his post-secondary qualifications, the answer given stated that the applicant had completed a Bachelor of Electronics and Instrumentation Engineering at Kongu Engineering College at Erode between 1 August 2013 and 31 May 2017. That response was incorrect;
(b)documents provided in support of the visa application included a provisional certificate from Anna University dated 22 June 2017 indicating that the applicant had qualified for the award of Bachelor of Electronics and Instrumentation Engineering at Kongu Engineering College at Erode and academic transcripts issued by Kongu Engineering College at Erode. These documents were bogus documents within the meaning of s 5(b) of the Act;
(c)the applicant was granted the Skilled Recognise Graduate Subclass 476 visa on 8 November 2017 on the basis of the information referred to above; and
(d)the application lodged on behalf of the applicant contained incorrect answers and information and involved the presentation, production or provision of a bogus document. By reason of those matters, the applicant contravened ss 101 and 103.
In light of the above facts and circumstances, the delegate gave the applicant the “specifics” of the alleged contraventions and invited him to provide a written response, which he did. The delegate, and the Tribunal on review, considered the applicant’s response before determining to cancel the visa.
I have considered the written and oral submissions of the parties as well as relevant documents in the court book and filed affidavits. For the reasons set out below, I have concluded that the reasons of the Tribunal do not reveal jurisdictional error.
Did the Tribunal fail to make obvious enquiries relating to a critical fact?
I am not satisfied that the Tribunal failed to conduct an obvious inquiry relating to a critical fact the existence of which would have been easily ascertainable. The Tribunal was not required to conduct an investigation or ‘delve’ into the allegations raised by the applicant. It was for the applicant to make his case and for the Tribunal to consider it.
The Tribunal considered the claims of fraud made by the applicant. The Tribunal had regard to the documentation supplied by the applicant. The Tribunal’s reasons reflect consideration of these matters. It is plain from the decision record that the Tribunal did not find these elements sufficiently compelling so as to displace the applicant’s responsibility for ensuring that his application was compliant and accurate.
For the Tribunal to make further enquiries into the legitimacy of the fraud claims or the genuineness of the applicant’s later-supplied documentation travels beyond the scope of its review obligations. In any event, even if further enquiries had been made and the Tribunal satisfied itself that the Applicant possessed legitimate academic transcripts, that information could not have adequately explained why the lodged application contained incorrect answers and attached bogus documents in contravention of ss 101 and 103.
Was there fraud committed on the applicant?
The applicant alleged fraud and claimed to have been an innocent victim. The Tribunal was required to consider that response, but was under no obligation to accept it. It was open to the Tribunal to find, on the evidence before it, that the applicant had a hand in the alleged fraudulent conduct, or was complicit or indifferent to it, and should be held to account for the content of his visa application and any documents attached to it.
The Minister submitted, and I agree, that a fatal component of the applicant’s fraud claims is the omission of any persuasive evidence as to:
(a)the existence and terms of any arrangement or agreement between he and the agent as to the nature of the services to be provided;
(b)how it came to be that the visa application was completed partly by the applicant’s hand and partly by the agent;
(c)who actually submitted the application.
Fraud imposes a ‘heavy burden’ of proof on the alleged victim. There are multiple hurdles in this respect that the applicant is required, and in this case has failed, to surmount: that the conduct of the agent should be found to be fraudulent rather than bare negligence or inadvertence; that the applicant was not complicit in the fraud; that the applicant was not recklessly indifferent to the fraud; and finally, that the fraud had a stultifying effect on the decision-making of the Tribunal.
The agreed fact that the applicant’s visa application contained incorrect answers and bogus qualifications, and the applicant’s assertion that he actually holds genuine academic documentation, does not in itself rise to proof of fraud - more is needed. On a fair reading of the Tribunal decision as a whole, without an eye unreasonably attuned to error, it was open to the Tribunal to be sceptical about the fraud claim. It was open to the Tribunal to reasonably form the view on the whole of the evidence that the applicant was either aware of the fraud or was indifferent about his agent’s actions.
Was the Tribunal’s decision-making stultified due to third-party fraud?
Nor am I satisfied that the so-called fraud interfered with decision-making in relation to the visa cancellation. In my view, that fraud did not cause the exercise of the Tribunal’s statutory function to be stultified.
The applicant was given notice of the Minister’s intention to cancel the visa, the s 107 notice was compliant with the Act and explained the basis for the proposed cancellation, the applicant was afforded an opportunity to respond to the notice including by making submissions and providing evidence, and the applicant was afforded the opportunity of a hearing. Given the applicant was able to make submissions in relation to the fraud and he Tribunal was not precluded from making a decision. The decision-making process cannot be said to have been stultified by the alleged fraud.
Paragraphs [39]-[41] of the Tribunal’s reasons satisfy me that the Tribunal was not stultified or precluded from performing its statutory task of review. Those paragraphs neatly summarise the Tribunal’s orthodox approach to the review, including its acknowledgement of the applicant’s fraud allegations and submissions:
[39]The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s 101 and s 103 of the Act and that there are grounds for cancelling his visa. The cancellation would not be in breach of Australia’s international obligations. The applicant expressed his willingness to return to India stop the Tribunal acknowledges the applicant’s evidence that his education and his future would be jeopardised [but] the Tribunal does not accept it. There are no other persons affected by the cancellation. There are no other instances of non-compliance or breaches of the law.
[40]The Tribunal acknowledges the applicant’s evidence that it was the agent who provided bogus documents and incorrect information but the Tribunal is not satisfied that the applicant had taken adequate steps to ensure that information and documents that were submitted on his behalf were correct and genuine. The applicant’s evidence to the Tribunal is that he has done nothing to check the paperwork before his application was submitted. The Tribunal places weight on the fact that the decision to grant the Visa was based on incorrect answers and bogus documents. In the Tribunal’s view, that outweighs other considerations.
[41]The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
I reject this ground of alleged error.
DISPOSITION
For the reasons set out above, I find that there was no jurisdictional error in the decision of the Tribunal dated 13 February 2019.
The application should be dismissed.
I will hear the parties on the question of costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 9 October 2025
0
21
3