Patel (Migration)

The applicants, Mr. and Mrs. Patel, sought review of decisions concerning their applications for Skilled Independent (Permanent) visas (Subclass 189). The dispute centred on whether their visa applications were valid, particularly in light of points awarded under the relevant points test and the conduct of their former migration agent. The matter was heard by Alison Mercer, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicants met the points test criterion for the visa, which requires their score to be not less than the score stated in their invitation to apply and not less than the qualifying score. This involved considering the provisions of Subdivision B of Division 3 of Part 2 of the Act, Schedule 6D to the Regulations, and relevant legislative instruments concerning skilled occupations. A further issue was whether the conduct of the applicants' agent, Rashika Prakash, constituted fraud, thereby vitiating the visa applications.

The Tribunal found that the applicants had been incorrectly advised by their agent regarding the points test, specifically that certain attributes could be established or obtained after lodging the visa application, rather than needing to exist at the time of invitation. The Tribunal also noted that the agent had not informed the applicants of their visa refusal or the lodgement of a review application, and that the agent was believed to have departed Australia and was under investigation. Based on these findings, the Tribunal concluded that the visa applications were affected by fraud and were therefore invalid.

Consequently, the Tribunal set aside the decisions under review and substituted a decision that the applicants' Subclass 189 visa applications were not validly made.