FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McDonagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 226
ORDERS
PEG 144 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIDAN MCDONAGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
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…
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- AGLC
- McDonagh v MICMSMA [2022] FedCFamC2G 226
- Case
- [2022] FedCFamC2G 226
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case is whether the Tribunal erred in its decision to refuse the applicant’s visa application on the basis of procedural errors. The applicant argues that the Tribunal failed to consider the errors made by his former migration agent, which led to the refusal of his Subclass 186 nomination. The Court must determine whether the Tribunal’s failure to consider these errors amounted to jurisdictional error. In addition, the Court must consider whether the applicant’s concerns about the conduct of his migration agent are relevant to the Tribunal’s decision-making process.
In its judgment, the Court found that the Tribunal did not fall into jurisdictional error in its decision to refuse the applicant’s visa application. The Court noted that the Tribunal had considered the applicant’s concerns about the conduct of his migration agent, but found that these concerns did not impact on the decision made by the Tribunal. The Court also noted that the Tribunal had correctly applied the relevant law in its decision, and that any errors made by the applicant’s migration agent were not sufficient to amount to jurisdictional error on the part of the Tribunal. The Court found that the Tribunal’s decision was lawful and that the applicant was not entitled to succeed in his application for judicial review.
The Court orders that the application for judicial review be dismissed and that the Tribunal’s decision be affirmed. The applicant is to pay the costs of the respondent, which are to be taxed if not agreed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Against this background, the applicant outlined concerns he had with the conduct of his migration agent. This issue will be addressed below when assessing ground 1.CONSIDERATIONGround 1 Ground 1 provides:1.The Administrative Appeals Tribunal (Tribunal) failed to consider the errors made by his former migration agent that led to the refusal of the Subclass 186 nomination. This was tantamount to fraud by the former migration agent on the Department of Home Affairs. The Applicant is blameless in this matter. In the context of a judicial review application, this Court can only assist an applicant if there is evidence before it that a migration agent conducted a “fraud” on the Tribunal (as described in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35). In order for conduct to constitute a “fraud on the Tribunal”, it must be proved that the fraudulent conduct of the migration agent (or the third party in question) disabled the Tribunal from conducting a review in accordance with its statutory obligations under the Act. That is, the fraud must have directly impacted on the Tribunal’s decision making process or otherwise impacted the outcome of the review. There is no evidence that this is what occurred in this matter. Here, the applicant was not represented by a migration agent before the Tribunal. While the applicant initially included contact details for a migration agent in his review application filed with the Tribunal (CB 68), the applicant later provided a “Change of Contact Details” form to the Tribunal (CB 90-91) in which he withdrew his previous authorisation for that agent to receive correspondence on his behalf and sought that all correspondence be sent directly to him (CB 91). In the circumstances, any conduct by the applicant’s migration agent could then only have impacted upon the decision made by the delegate. The Court notes that it does not have jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. Further, any error in the delegate’s decision which may or may not have been brought about by the conduct of the applicant’s migration agent would be “cured” by the Tribunal decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38]. The Tribunal, in its reasons (at [25]), does reference evidence from the applicant about an issue with “paperwork” as follows (emphasis added):Mr McDonagh told the Tribunal that the original paperwork had not been done properly and that he had left his former employment due to health and safety reasons. The Tribunal acknowledged the applicant’s situation and has empathy for his circumstances however, the Tribunal must apply the legislation as it stands. As explained to the applicant during the hearing, the Tribunal has no discretion in this matter and must apply the relevant law. To the extent that this statement relates to the conduct of the applicant’s former migration agent, it does not impact on the decision made by the Tribunal and did not prevent the Tribunal from conducting a proper review. At best, it suggests incompetence on the part of the applicant’s former migration agent. Negligence, incompetence or bad advice (while unacceptable) does not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.