Singh v Minister for Immigration
[2016] FCCA 835
•14 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 835 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – where visa application contained false information about a claimed skills assessment – alleged fraud on the part of a migration agent – whether the visa application was invalid, the delegate’s decision unlawful or the Tribunal decision unlawful – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46, 47, 48, 69, 95, 98, 338, 348, 349 Migration Regulations 1994 (Cth), cls.485.221, 485.224(a) |
| Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53; [2006] FCA 31 |
| Applicant: | JAGRAJ SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2765 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 26 March 2015 |
| Date of Last Submission: | 18 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2765 of 2013
| JAGRAJ SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) affirming a decision not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
The Applicant, a citizen of India, came to Australia as the holder of a Student visa. On 28 September 2011 an online application in his name was lodged with the Department seeking a Skilled – Graduate (Temporary) (Class VC) (Subclass 485) visa. The Applicant’s passport, family and educational details, his Indian residential address, his postal address and a contact email address were provided. It was indicated that the Applicant agreed to the Department communicating with him via email. The form included the instruction (under the heading “Applicant skills assessment”) that a Subclass 485 visa applicant must provide evidence of a suitable skills assessment from the relevant assessing authority or evidence that the applicant had made a booking to undergo such a skills assessment. In the completed form the Applicant’s nominated occupation was described as “Cook”. It was stated that his skills had been assessed by Trades Recognition Australia (TRA) on 22 June 2010. A TRA reference/receipt number was included. The answer “no” was provided in response to the question as to whether assistance had been received in completing the form.
On 17 February 2012 a delegate of the First Respondent wrote to Mr Singh by email to the address provided in the application form, inviting him to comment on information said to be relevant to Public Interest Criterion 4020 (PIC 4020) which applied to the visa application and required that there was no evidence that the Applicant had given or caused to be given to the Minister, an officer of the Migration Review Tribunal, a relevant assessing authority or a medical officer of the Commonwealth a bogus document or information that was false or misleading in a material particular in relation to the application for the visa, or a visa the Applicant held in the period of 12 months before the application was made.
The email from the delegate raised with Mr Singh the allegation that his visa application:
…was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.
In addition, as part of your application, you had answered ‘yes’ to the question, ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’ Further, in your application you provided the following reference indicating a successful skills assessment – TRA 10/96547541. This reference was referred to TRA for verification. TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is, therefore, alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.
The letter allowed Mr Singh 28 days to comment or to provide information on any compelling circumstances such as to warrant waiver of PIC 4020.
No response was received to this email.
On 24 April 2012, the delegate of the First Respondent refused the visa application on the basis that the Applicant did not meet PIC 4020 as he had given or caused to be given information that was false or misleading in a material particular in relation to his visa application, being the TRA reference number (which was relevant to the consideration of the visa application as it was provided to indicate that the Applicant had a valid skills assessment which was a requirement for the grant of the visa). In her reasons for decision the delegate referred to the unanswered invitation to comment and recorded that TRA had confirmed that it had not provided the reference number referred to in the visa application or conducted any skills assessment in relation to Mr Singh. While S&S Migration (“S&S”) had not been declared as the Applicant’s agents in relation to the visa application, as records of this visa application had been found on their premises the delegate was of the view that S&S had assisted Mr Singh in lodgement of the application and that under s.95 of the Migration Act 1958 (Cth) (the Act) he was to be taken to have completed the form even if it was completed on his behalf.
An email containing a copy of the refusal notification was sent to the email address provided in the application. It appears from material in the Court Book that this message could not be delivered as the email account had been “disabled or discontinued”.
On 30 April 2012 a different migration agent contacted the Department, advising that he had “taken over” representation of Mr Singh in relation to his visa application and attaching a completed Form 956 in relation to his appointment. The agent sought advice as to the status of the application.
On 2 May 2012 the Department wrote to the migration agent attaching what was described as a “courtesy copy” of the delegate’s decision letter said to have been sent to the nominated email address on 24 April 2012.
On 11 May 2012 Mr Singh applied to the Tribunal for review of the delegate’s decision.
On 13 September 2013 the Tribunal invited Mr Singh to attend a hearing on 30 September 2013. Mr Singh’s representative submitted that Mr Singh had engaged a migration agent to prepare and file an unspecified visa application, but that unbeknownst to him it appeared that the agent had created a false or bogus TRA skills assessment. The representative provided information about what was said to be an “identical” case of another client in relation to which there were judicial review proceedings. It was also suggested that there was no visa application validly made on behalf of Mr Singh and hence that the Tribunal had no jurisdiction.
The Applicant provided the Tribunal with supporting documents including a copy of a notification that a Bridging visa had been granted to him on 29 September 2011 until his General Skilled Migration visa application was determined; a written complaint by the Applicant to the Migration Agents Registration Authority (MARA) dated 17 August 2012 in relation to a Mr Ajjan, said to be a migration agent at S&S; and a reply from MARA of 24 August 2012 indicating that as the person complained about was not a registered migration agent MARA had no jurisdiction to investigate the complaint. MARA had asked Mr Singh whether he would like the complaint referred to the Department of Immigration for investigation and suggested that he may like to consider contacting his local consumer protection agency to recover any money paid to this person. Mr Singh consented to the complaint being forwarded to the Department. He also complained to the Queensland Office of Fair Trading, which indicated that it could not assist as S&S had not responded to correspondence or telephone calls.
Mr Singh attended a Tribunal hearing on 30 September 2013.
After the hearing the Applicant provided further documentation, including a supporting letter from Mr Sran (the person whose judicial review application had been brought to the attention of the Tribunal), stating that both he and Mr Singh had taken advice from S&S to apply for further visas after their student visas were to expire and that Mr Sran had sent Mr Singh’s details, including his passport and email details, and payment to S&S as he had their details.
Tribunal decision
On 16 October 2013 the Tribunal affirmed the decision not to grant Mr Singh a Class VC visa.
The Tribunal considered the visa application and the information therein about a skills assessment application and the statement that no assistance had been received in completing the form. It noted that during departmental investigations the Department had identified a file with Mr Singh’s personal details and application reference number in the office of S&S and that this business had lodged a number of visa applications containing false and misleading information. It had regard to the fact that TRA had advised that it had no record of providing Mr Singh with a skills assessment, whether with the specified reference number or otherwise.
The Tribunal found that the issue was whether Mr Singh met PIC 4020 as required by the criterion in cl.485.224(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations).
In considering whether Mr Singh had given or caused to be given a bogus document or information that was false or misleading in a material particular (contrary to PIC 4020) the Tribunal referred to authority to the effect that PIC 4020(1) applied whether or not the document was provided by the applicant knowingly or unwittingly. Consistent with the evidence from TRA, the Tribunal found that there was no dispute that Mr Singh had not made any skills assessment application and did not have an assessment of his skills as suitable for the nominated occupation. Hence the Tribunal found that the details on the Applicant’s visa application form in relation to skills assessment were incorrect as he had not obtained a skills assessment from TRA that his skills were suitable for his nominated occupation.
The Tribunal addressed the submission that while Mr Singh had engaged a migration agent to prepare and file an “unspecified” application, there was no relevant material to indicate that he had intended to mislead or deceive as there was no fee agreement, fee disclosure or other material facts and hence that no visa application was validly made on his behalf.
However the Tribunal did not accept that it could be said that no visa application was validly made on behalf of Mr Singh, given that it had been submitted that he had engaged a migration agent to prepare and file an “unspecified” application. The Tribunal found that for the purposes of the Act and the Migration Regulations a valid visa application was made if the requirements of s.46 of the Act were met. It found that the prescribed requirements appeared to have been met in this case.
The Tribunal had regard to Mr Singh’s evidence that he had contacted S&S after he finished his study and spoke to a Mr Ajjan who was recommended by his friend Mr Sran, and that he had stated that while he had actually intended to apply for a further student visa, Mr Ajjan told him he would get him a visa that would allow him to work.
However the Tribunal also had regard to the fact that in his complaint to MARA Mr Singh had stated that he had contacted Mr Ajjan at S&S by phone and claimed that:
… “he told me that you can apply for 485 (General Skill Migration) subclass visa … I thought he is giving me right suggestion as he is a migration agent. I trusted him. I asked him that how much he will charge me to apply that visa & what documentation is required. He told me to e-mail the copy of my passport and other documents will be required later not now, and also he asked for $2500”.
The Tribunal observed that Mr Singh had confirmed at the hearing that he paid $2,500 to S&S. It found that this was further evidence that he did engage Mr Ajjan to lodge a visa application on his behalf. It also accepted that Mr Sran had forwarded copies of pages from Mr Singh’s passport and his student visa grant notification to S&S on or around 27 September 2011.
In these circumstances the Tribunal found that Mr Singh had engaged and authorised Mr Ajjan of S&S to lodge a visa application on his behalf as he paid for the service and provided some supporting documents.
The Tribunal also found that it seemed that Mr Singh had authorised the agent to do “whatever was necessary” to enable him to work in Australia. It referred to the fact that he had stated in his August 2012 complaint to MARA that S&S “told me that you can get work visa for two years”. The Tribunal considered that the Applicant had obtained a promised outcome from S&S as the lodging of the Subclass 485 visa application resulted in the grant of a related Bridging Visa A which allowed him unlimited work rights while his application was being processed.
The Tribunal rejected the submission that the application was an “unspecified application” or that Mr Singh did not know what visa was being applied for, having regard to the fact that in his complaint to MARA he referred to being told by Mr Ajjan that he could apply for a “485 (General Skill Migration) subclass visa”. It also rejected the representative’s submission that Mr Singh only discovered this information after the visa application was refused and inquiries were made to the Department, given that Mr Singh had provided a copy of the Bridging Visa A notification he had received one or two weeks after the visa application was lodged which referred to the application for a onshore General Skilled Migration visa. The Tribunal was of the view that Mr Singh’s written complaint of August 2012 to MARA and the Bridging visa notification indicated that he was aware that the application lodged by S&S was for a skilled visa. It found that he had engaged Mr Ajjan of S&S to make such an application for him. It was also of the view that S&S would not have forwarded a copy of the notification of lodgement of the skilled visa application to Mr Singh if it had not been authorised to make an application of this kind for him. The Tribunal found that Mr Singh knew that the application was for a skilled visa and that the visa application was made with his knowledge.
The Tribunal considered Mr Singh’s claims that he was “innocent” and “a victim of fraud”, that he had not provided any false documents and that he did not know about the matter. The Tribunal expressed serious doubts about such claims on the basis that the Applicant’s oral evidence (including about having asked if he needed to give the agent study documents and evidence of his restaurant experience) suggested that he was aware of the requirements for obtaining a skilled visa. It was of the view that his evidence about proposed further study was unconvincing. The Tribunal considered that Mr Singh was aware of the requirement to obtain 900 hours of work experience for a skilled visa and that his intention was to obtain such a visa rather than a further student visa as he had claimed. It was of the view that Mr Singh had not given truthful evidence regarding his knowledge of the type of visa application lodged. It found that he knew that a skilled visa application would be made and that the application for a Subclass 485 visa was validly made on his behalf.
The Tribunal addressed the representative’s submission that Mr Singh would not have used S&S if he knew it was a fraud. The Tribunal was of the view that he had obtained a desired outcome from the lodgement of the visa application on his behalf by having permission to work during processing of his visa application and found that he had authorised S&S to make the visa application on his behalf.
The Tribunal also addressed the submissions that, unbeknownst to Mr Singh, the S&S agent appeared to have created a false or bogus TRA skills assessment, that this was not done at the behest of Mr Singh or pursuant to any agency or contract, that he had not personally provided any false information or bogus documents, that he was a victim, and that PIC 4020 may not apply. However the Tribunal found that PIC 4020 applied where information was given or caused to be given by an applicant either knowingly or unwittingly. It found that the information that Mr Singh had a skills assessment from TRA was false information that was given or caused to be given by him to the Minister or an officer, whether or not he knew of it.
In addition, the Tribunal considered the submissions that TRA had not been lawfully appointed as a relevant assessing authority by October 2011 and also that the information received by the Department was not relevant to any criterion the Minister may consider in relation to a Subclass 485 visa application. It found that the details provided on the visa application form about a skills assessment were relevant to the time of decision criterion in cl.485.221 that the applicant’s skills must be assessed by a relevant assessing authority as suitable for the nominated skilled occupation and that as TRA was specified in legislative instrument IMMI 12/068 it was a relevant assessing authority for the purposes of cl.485.221.
The Tribunal concluded that by engaging S&S to act on his behalf for the visa application the subject of the review, Mr Singh had given or caused to be given information that was false or misleading in a material particular in relation to the visa application, because the provision of false details in the visa application form that a skills assessment had been obtained was “relevant” to the time of decision criterion that the Applicant’s skills must be assessed as suitable by a relevant assessing authority for the nominated skilled occupation.
The Tribunal considered whether the requirements of PIC 4020 should be waived. It addressed Mr Singh’s submissions in this regard, including the claims that he was the victim of a scam; that it was in the best interests of Australia to ensure that potential migrants could trust agents; that a lack of proper monitoring of unregistered educational agents involved in giving migration advice had led to situations where innocent people suffered due to the negligence of Australian government agencies (including the Immigration Department and the Australian Federal Police); that it was important that Australia’s reputation for justice was demonstrated in such a case; that Mr Singh would not have used S&S if he knew it was a fraud; and that he had not committed any offence.
However the Tribunal did not consider that the actions of S&S established that there were compelling circumstances that affected the interests of Australia or were otherwise within the provisions that justified a waiver of the requirements of PIC 4020. It referred to its finding that the Applicant had knowingly engaged the agent and to its view that he had thought at the time that he would have approximately two years in which to work while awaiting the outcome of the visa application (although it turned out that the decision was made in a shorter period). The Tribunal did not accept that the Applicant was the innocent victim of a scam. It did not consider that the matters raised gave rise to compassionate or compelling circumstances such as to warrant waiver of PIC 4020(1). Nor did it consider the Applicant’s desire to study further or the possibility of a three-year exclusion period on any application for certain classes of visa constituted such circumstances. It was not satisfied that the requirements of PIC 4020 should be waived.
The Tribunal found that as the Applicant had not satisfied PIC 4020 (as required by the criterion in cl.485.224(a)) he therefore did not meet the criteria for the grant of a Subclass 485 visa.
The Tribunal observed that the Applicant had not sought to meet and had provided no evidence addressing the requirements and criteria applicable to the other subclass within the class of visa for which he had applied.
The Tribunal also stated that it had decided not to refer the matter to the Minister for consideration of the exercise of powers under s.351 of the Act. It affirmed the decision not to grant Mr Singh a Class VC visa.
These Proceedings
Mr Singh sought review by application filed in this court on 8 November 2013. He now relies on a Further Further Amended Application (referred to for convenience as the Application) filed on 30 March 2015 seeking review of the decision of the Tribunal. However, seven declarations are sought, including findings about the circumstances in which Mr Singh dealt with “S and M (sic) Migration” and the lodgement of the visa application; declarations that the visa application was fraudulent and invalid; that the Minister’s decision was unlawful; and that the Tribunal’s decision was unlawful as it had no jurisdiction. Orders are sought directed to the Tribunal “or” the Minister.
There are nine “grounds” in the Application. Grounds one to eight are as follows (errors in original):
1. Mr Jagraj Singh approached S and M Migration for legal advice. It was Mr Singh’s intention to apply for another student visa. Mr Singh was under the impression that this was what S and M Migration were going to do. That is, apply for a student visa. Mr Singh did not retain or otherwise authorise S and M Migration to make an application for a subclass 485 visa on his behalf.
2. S and M Migration however, lodged an application for a Subclass 485 visa without the consent of Mr Singh. Mr Singh did not sign an agency agreement. He did not sign a fee agreement with S and M Migration. When S and M Migration lodged the application for the Subclass 485 visa, Mr Singh had no knowledge that fraudulent documents had been lodged by S and M Migration in support of the visa application.
3. The Minister for Immigration and Border Protection deemed S and M Migration to be an agent of Mr Singh. There was however no evidence for such a finding. The fact that S and M Migration lodged an application does not of itself mean that Mr Singh did in fact authorise S and M Migration to lodge an application for a visa. There is no evidence that Mr Singh did, in fact, authorise S and M Migration to make any visa application.
4. The application for the Subclass 485 visa was purportedly made by Mr Singh. Mr Singh did not however, make the Subclass 485 visa application. The application for the visa was therefore an invalid application. Subsection 47(3) of the Migration Act 1958 precludes the Minister from considering an application that is an invalid application.
5. The Minister in this case knew that S and M Migration were engaged in fraudulent activities. The Minister has defended a number of cases in the Federal Circuit Court concerning the fraudulent activities of S and M Migration. It is the applicant’s understanding that the Australian Federal Police are pursuing S and M Migration for numerous acts of fraud. It is also the applicant’s understanding that S and M Migration have apparently left the jurisdiction.
6. The Minister knew that the application was a fraudulent application. The Minister knew that S and M Migration is now the subject of investigation by the Australian Federal Police. As a consequence, the application was an invalid application, and the Minister was precluded from considering such a visa application.
7. The decision by the Migration Review Tribunal to refuse the application for the Subclass 485 visa was unlawful. The Migration Review Tribunal is authorised only to review those decisions of the Minister which are lawful decisions. As the decision by the Minister was unlawful, the decision by the Migration Review Tribunal was also unlawful. The Migration Review Tribunal cannot remedy the defect in the decision made by the Minister.
8. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) HCA 11 the High Court held that a decision which is unlawful, it is as if there is no decision at all. In this case, the Tribunal has not, therefore, made a decision to refuse the application for the Subclass 485 visa.
Grounds One to Eight and Jurisdiction of the Court
Mr Singh, who was legally represented at all times, did not give any evidence in these proceedings. He relied on an affidavit of his solicitor, Mr Levingston, attaching a copy of the Tribunal decision and the material in the Court Book. In addition, Mr Levingston swore an affidavit on 30 March 2015 attaching copies of relevant parts of the Schedule to the Migration Regulations at the time of Mr Singh’s visa application (discussed below in relation to Ground Nine). At the hearing, the Applicant’s “special counsel”, Mr Ford, sought to tender a transcript of the Tribunal hearing. I indicated that I would allow such a tender on the basis that the Applicant meet any additional costs occasioned by the need to adjourn to afford the First Respondent an opportunity to address any issues raised by the Transcript. The tender was withdrawn. Hence the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.
At the commencement of oral submissions Mr Ford stated that the Applicant’s main contention was that the court had no jurisdiction to deal with this matter. This contention was maintained notwithstanding the absence of any ground to this effect and the fact that the Applicant sought an order from the court quashing the decision “of the Tribunal or the Minister”, a writ of mandamus directed “to the Tribunal or Minister” requiring “them” to determine the Applicant’s application according to law (as well as seven declarations).
This submission was put on the basis that as the Tribunal had no jurisdiction to deal with the Applicant’s review application because there was no valid decision by the Minister, the Tribunal decision was an unlawful decision (because it had reviewed a decision that did not exist) and although the Applicant had commenced proceedings in the Federal Circuit Court, this Court was only seized with jurisdiction to review decisions of the Tribunal. It was contended for the Applicant that as there was no decision of the Tribunal the Court did not have jurisdiction to review the matter. It appears that what was sought was a decision to that effect on the basis that it was also contended that the visa application of 28 September 2011 was still “on foot”. Mr Ford also submitted that the grounds relied on in the Application and the declarations sought by the Applicant only had to be considered if the Court decided it had jurisdiction.
The Applicant’s written submissions in relation to the first eight “grounds” repeated various factual assertions in the Application. Thus it was asserted that Mr Singh had sought “legal advice” from “S&M Migration (sic)”; that S&M Migration advised it would “look after everything”; that Mr Singh thought that S&M Migration were going to apply for a Student visa, not a Subclass 485 visa; and that he “did not retain or otherwise authorise” them to make an application for a Subclass 485 visa on his behalf. As the references to S&M Migration are apparently intended to refer to S&S Migration, in future references to submissions about the agent I will describe it as S&S. It was submitted that Mr Singh had little or no contact with S&S after the initial consultation.
No evidentiary basis for such assertions was put before the court – other than the evidence in the Court Book of the Applicant’s complaint to MARA and the Tribunal’s account of his evidence at the Tribunal hearing.
It was claimed that the visa application was lodged without Mr Singh’s consent and was a fraudulent application and stated that Mr Singh expected S&S to consult with him prior to lodgement of the student visa application (sic).
Reference was made to SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 in support of the proposition that the Subclass 485 visa application was fraudulent. It was submitted that the High Court appeared to have adopted certain views of French J (as he then was) in the Federal Court (see Minister for Immigration and MulticulturalAffairsv SZFDE (2006) 154 FCR 365; [2006] FCAFC 142).
It was contended that the application for the Subclass 485 visa was “therefore” an invalid application. Reliance was placed generally on Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435; [1999] FCA 1679; SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53; [2006] FCA 31 and Najarian v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 695; [2000] FCA 933.
It was submitted that, as claimed in “ground 3”, the Minister had “deemed” S&S to be an agent of the Applicant in the absence of any evidence for such a “finding” and that the fact that S&S lodged an application for a Subclass 485 visa did not of itself mean that Mr Singh had authorised it to lodge such an application.
The Applicant submitted that the decision of the Minister (through his delegate) to refuse the application for the Subclass 485 visa was unlawful and that while the Minister may have had jurisdiction to decide whether the application was or was not a valid visa application, in this case it was invalid because of what was said to be the “fact” that it was a fraudulent application. Hence it was contended that the Minister should have declared the visa application to be invalid and refused to make a decision on the matter. It was pointed out that under s.47(3) of the Act, the Minister was not to consider a visa application that was not a valid application.
It was also submitted that the delegate’s decision to refuse the visa application “contained a jurisdictional error”. Reference was made to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 in support of the proposition that if a decision was unlawful, it was as if there was no decision at all. It was submitted that this meant that the Minister had not made a decision to refuse the visa application and that therefore the application for the visa was “still on foot”.
The Applicant submitted that at the time the visa application was refused the Minister “knew” that S&S were engaged in fraudulent activities and had lodged fraudulent documents, having “defended” a number of cases in this court said to concern the fraudulent activities of S&S. It was also said to be the Applicant’s “understanding” that the Federal Police were pursuing S&S for numerous acts of fraud and that S&S had “apparently left the jurisdiction”.
On this basis it was submitted that the decision by the Tribunal was unlawful as it was only authorised to review those decisions of the Minister that were lawful decisions. It was also submitted that there was “no suggestion” that S&S had made any attempt to “remedy the defect in the application process” and that, in any event, as the Minister had made his decision, the defect could not be remedied by the Tribunal.
In oral submissions for the Applicant it was contended that SZFDE established that fraud or, indeed, “the mere suggestion of fraud”, vitiated a decision and that consistent with this approach, the visa application was invalid.
This was explained on the basis that, as illustrated by the approach taken in Gill v Minister for Immigration & Anor [2015] FCCA 1, it was necessary to consider whether Mr Singh’s application for the Subclass 485 visa was valid, because if there was no valid visa application, the Minister’s decision was unlawful, there was no MRT-reviewable decision (see s.338 of the Act) and the Tribunal did not have jurisdiction to conduct a review.
The Applicant submitted that the delegate should have declared the visa application to be an invalid application by virtue of the fraud and hence that he should have been in the position he was in before the visa application was made. This was said to be consistent with the approach taken by the High Court in SZFDE. Mr Ford explained that his contention was that as the Applicant had made an invalid application he was not subject to s.48 of the Act so that there was no legal impediment to him making a fresh application.
It was said that “fraud unravels everything” (see the discussion of Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 at 895 in SZFDE at [19]-[27]). This was said to mean that the visa application was invalid. It was submitted that fraud not only vitiated the decision, it also invalidated the visa application so that the Minister was precluded by law from considering it. It appeared to be submitted that in SZFDE the High Court had established that “even if there is a fraud on the applicant that means that there is fraud on the tribunal or fraud on the Minister”.
The Applicant submitted that in SZFDE the High Court had been “minded to follow” the dissenting judgment of French J in the Full Court of the Federal Court, insofar as his Honour was said to have been of the view that fraud would have the effect of vitiating a visa application. However it was submitted that while French J added a further requirement that there be no collusion or benefit from the fraud on the part of the applicant, the High Court had not accepted this qualification.
In support of this proposition, reference was made to the remarks by the High Court in SZFDE at [53] that:
…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 (footnote omitted).
The Applicant submitted that it appeared that the High Court was suggesting that the issues addressed by French J did not have to be considered in SZFDE because there was no suggestion that the applicant in SZFDE had somehow benefited from or had involvement in the fraud in issue. Similarly, in this case it was submitted that there was no suggestion, and no evidence to suggest, that Mr Singh benefited from the fraudulent conduct.
Mr Ford submitted that the High Court’s view in SZFDE was that fraud vitiated the decision-making process “full stop” and that the qualification suggested by French J that an applicant could not benefit from fraud if there was some sort of collusion or benefit obtained on his or her part was not supported by the judgment of the High Court and should not be taken into account. It was submitted that SZMWT v Minister for Immigration and Citizenship (2009) 109 ALD 473; [2009] FCA 559 and SZQVV v Ministerfor Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871 supported this interpretation.
It was also submitted that the Minister and the Tribunal had acknowledged that fraud existed (although counsel for the Minister expressly denied that any such concession had been made). Mr Ford reiterated the contentions in paragraphs 5 and 6 of the Application about the Minister’s knowledge about S&S and that the visa application was fraudulent, but did not refer to or rely on any evidence in support of such claims.
In the alternative, the Applicant contended that what was described as the “second limb” of the reasoning in SZFDE was that even if the visa application was a valid application, the fraud had the effect of impairing the ability of the Tribunal to make its decision. It was acknowledged that the Tribunal had not referred to “fraud”, but submitted that the mere existence of a consideration of PIC 4020 indicated that the main issue before the Tribunal was fraud.
The Applicant submitted that the PIC 4020 requirements were only discussed in circumstances where there was fraud, so that the mere fact of a consideration of that requirement was itself a compelling circumstance indicating that the main issue before the Tribunal was fraud. On this basis it was said to be reasonable to conclude that the Minister was aware of the fraud and that this was why the PIC 4020 factors were considered.
It was submitted that the High Court in SZFDE (at [50]) had taken the approach that a fraud on the Applicant meant there was a fraud on the Tribunal or fraud on the Minister.
It was also contended that if the circumstances were such that the visa application was valid and/or the delegate’s decision was not automatically vitiated by fraud (so that the Tribunal had jurisdiction), the Tribunal was nonetheless disabled from the due discharge of its statutory functions with respect to the conduct of the review because of fraud. Reliance was placed on what was said in SZFDE from [51] on. It was submitted that fraud could “constitute” a jurisdictional error or vitiate a decision consistent with the approach taken in Craig v State of South Australia (1995) 184 CLR 103; [1995 HCA 58; Plaintiff S157 of 2002 v Commonwealthof Australia (2003) 211 CLR 476; [2003] HCA 2 and Bhardwaj.
These contentions were relied on in support of the proposition that the decision made by the Tribunal was properly to be regarded as no decision at all in the sense considered in SZFDE at [52] (and see Bhardwaj at [51] and Plaintiff S157/2002 at [76]).
The First Respondent provided detailed written submissions which attempted to identify the bases on which the Applicant claimed to be entitled to the relief sought in grounds 1 to 8. The Applicant did not dispute this categorisation of the bases for his claims, which I have adopted.
The Applicant’s oral submission that the court has no jurisdiction is dependent on acceptance of the Applicant’s contentions in relation to invalidity of the Tribunal decision. For reasons that follow I am not satisfied that the court has no jurisdiction. It is convenient to address this submission in the context of considering the grounds in the Application.
As the First Respondent submitted, it appears that the Applicant’s first assertion (described as the “invalid visa application” argument) is that his visa application was invalid because (as the First Respondent summarised the Applicant’s claims in this respect):
(a) It was submitted by an agent from S&S Migration, and the agent was not authorised by the applicant to submit an application for a subclass 485 visa (Grounds 1 and 3);
(b) It was submitted by an agent from S&S Migration, and the Applicant had no knowledge that ‘fraudulent documents had been lodged in support’ (Ground 2);
(c) It was submitted in circumstances there the Minister knew that the application was a ‘fraudulent application’ and the subject of ‘investigation by the Australian Federal Police’ or that S & S Migration were engaged in ‘fraudulent activities’ and have ‘apparently left the jurisdiction’ (Grounds 5 and 6);
(d) It was not submitted personally by the Applicant (Ground 4).
Second, the Applicant asserted (on the basis of the proposition that his visa application was invalid and therefore the delegate’s decision was “unlawful”) that as a consequence the Tribunal’s decision was “unlawful”. This “unlawful Tribunal decision” argument appears to be reflected in ground 7.
Third, the Applicant asserted that on the basis that the visa application was invalid and the delegate’s decision unlawful, it followed that the delegate’s decision was “no decision at all” on the authority of Bhardwaj. His “unlawful delegate’s decision” argument appears to be reflected in ground 8.
As counsel for the Minister pointed out, it was clear from the grounds in the (then) Further Amended Application that notwithstanding the contention that this court had no jurisdiction, the Applicant sought to submit that the original visa application was not a valid application and that certain consequences flowed and sought relief on this basis. In particular, he asked the court to address the claimed invalidity of the visa application and to consider what consequences flowed from it.
In essence, the First Respondent submitted that grounds 1 to 6 (which formed the basis for the “invalid visa application” argument) assumed the existence of facts which the Applicant had not sought to prove in these proceedings. It was contended that he had not established that the agent at S&S was not authorised by him to submit the visa application or that the visa application was invalid. It was therefore submitted that it had not been established that the delegate’s decision or the Tribunal’s decision was invalid on any basis contended for by the Applicant. Further, the First Respondent submitted that it had not been established that the Tribunal decision was either vitiated by fraud or made without jurisdiction.
The Invalid Visa Application Argument
The first argument relied on by the Applicant is an assertion that the visa application was invalid for the various reasons outlined above as reflected in grounds 1 to 6. The fundamental difficulty that faces the Applicant in this respect is that his argument assumes the existence of facts which he has not sought to prove before the Court with evidence. He did not seek to give affidavit or oral evidence in these proceedings (cf SZMWT and also see Singhv Minister for Immigration and Border Protection [2015] FCAFC 151 at [13]-[15] and [21]-[25]).
As the First Respondent submitted, whether the Applicant lodged a valid visa application is a question of jurisdictional fact to be determined by this court on the basis of evidence before it at the hearing. The Applicant has not filed any evidence in these proceedings to establish that he was not legally responsible for the visa application form lodged on his behalf and/or for the false statements in it, including in support of any allegation of fraud by the original agent. That is so despite the fact that he has at all times been legally represented in these proceedings and bears the onus of establishing that the visa application was invalid (see Jalagam v Ministerfor Immigration and Citizenship [2009] FCA 197 at [43]-[45] per Edmonds J; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] and [91]-[92] and Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [53]).
Nor are the circumstances and material before the court such as to warrant the drawing of any inference of the nature contended for by the Applicant such as to establish that the visa application was invalid. I note that special counsel for the Applicant initially sought to tender a transcript of the Tribunal hearing. He sought to explain the fact that the transcript had not been filed in accordance with the orders made by the court for the filing of affidavit evidence on the basis that the Minister and the Tribunal had acknowledged that a fraud had occurred, so that “technically” there was no need for the Applicant to rely on the transcript in order to establish that fraud existed. It was, however, submitted that the transcript would further strengthen the claim that the Applicant was not involved in any way in the fraud.
The Minister opposed the tender of the transcript and pointed out that neither the Minister, the delegate, nor the Tribunal had accepted that there was what the Applicant’s special counsel described as “fraud” in relation to the Applicant.
As indicated above, I stated that I was prepared to allow the Applicant to tender the transcript on the basis that he would have to meet any resulting additional costs occasioned by the need to allow the First Respondent an opportunity to consider and address any issues that arose from the transcript. However Mr Ford then indicated that he did not propose to tender the transcript and the hearing proceeded on this basis.
In any event, the transcript would only be evidence of what the Applicant said to the Tribunal. The Applicant took no issue with the Tribunal’s account of his evidence in its reasons for decision. It is apparent that before the Tribunal the Applicant asserted that he had authorised S&S to “prepare and file” an “unspecified application”. Such assertion does not establish that the Tribunal knew or acknowledged that fraud existed. Moreover, contrary to the contention that the Applicant was unaware of the nature of the visa application and had not authorised it, there was evidence before the Tribunal (to which the Tribunal referred) that in a written complaint to the Office of the MARA in August 2012 (a copy of which is in the Court Book) the Applicant had claimed that he had contacted Mr Ajjan of S&S by telephone and that the agent:
…told me that you can apply for 485 (General Skilled Migration) subclass visa. He told me that you can get work visa two years after that you will be eligible to apply for permanent residency… I thought he is giving me right suggestion, as he is a migration agent. I trusted him. I asked him that how much he will charge me to apply that visa a& what documentation is required. He told me to E-mail the copy of my passport, and other documents will be required later, not now; and also he asked for $2500…
In addition, the Tribunal referred to evidence that the Applicant paid S&S, that he had provided supporting documentation through his friend and that he obtained a bridging visa that gave him permission to work.
As set out above, the Tribunal concluded that the Applicant knew that an application for a skilled visa had been made on his behalf and that S&S was authorised to make this application. The Tribunal was of the view that the Applicant intended that the agent make an application for a skilled visa on his behalf and that he was cognisant of some of the requirements for obtaining such a visa. The material before the court does not warrant an inference that S&S was not authorised to make the application for a Subclass 485 visa on behalf of the Applicant.
Insofar as the Applicant alleged fraud by his former agent in some sense, it is for him to prove that the agent committed fraud both on him and (given that his argument relates to the delegate’s decision) on the Department in a manner sufficient to break the chain of attribution between himself and the visa application made in his name (see in that respect Prodduturi v Minister for Immigration and Border Protection (2015) 144 ALD 243; [2015] FCAFC 5 at [20]).
Contrary to the Applicant’s contention, the fact that the decision-maker (whether the delegate or the Tribunal) was considering PIC 4020 does not establish that there was fraud. Compliance with PIC 4020 was in issue because it was a criterion for the Subclass 485 visa. It cannot be said that the only reason the decision-maker would consider PIC 4020 would be because of the existence of “fraudulent” documents. It is not so limited.
While it was submitted that the Applicant had no knowledge that “fraudulent documents had been lodged in support” of his application, it is not clear to what this refers. The delegate’s (and the Tribunal’s) findings in relation to the visa application related to the statement in the visa application form that the Applicant had obtained an assessment of his skills by TRA and to the reference number provided in that respect, not to other “documents”. If this claim was intended to be a contention that the Department may also have been provided with additional documentation in the nature of false documents, there is no evidence in that respect before the court. Moreover an inference that the Applicant was unaware of the claims in the visa application about a TRA assessment is not warranted on the limited evidence before the court in the absence of evidence from the Applicant in these proceedings and having regard to the Tribunal’s account of the extent to which the Applicant’s evidence revealed an awareness of the requirements for a Subclass 485 visa, including his indication that he had discussed with the agent the need to provide evidence of 900 hours of work experience.
Nor is there any evidence in these proceedings to support the proposition in ground 5 (possibly intended to relate to the time of the visa application as well as the time of decision) that the Minister knew that the application was a fraudulent application and the subject of investigation by the Australian Federal Police, or that S&S were engaged in some general unspecified “fraudulent activities” or that S&S Migration (which would appear to be a business name, rather than an individual) had “apparently left the jurisdiction”.
The Applicant relied on a contention that the application was not submitted personally by him in support of the claim that the visa application was invalid (ground 4). There is no evidence from the Applicant in these proceedings in relation to this proposition, although the Tribunal did record the Applicant’s oral evidence that the visa application was submitted by S&S. In any event, this fact of itself, even if accepted, is not such as to establish that the Applicant was not responsible for the content of the visa application. Section 98 of the Act provides that:
A non-citizen who does not fill in his or her application form … is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
The evidence before the court is not such as to satisfy me that the visa application form was not filled in and lodged on behalf of the Applicant. On the evidence before the court, I am not satisfied that, as asserted by the Applicant, the agent was not authorised by him to submit an application for a Subclass 485 visa.
It is also relevant to consider the extent to which the principles that arise from SZFDE support the Applicant’s invalidity contentions, insofar as such contentions were based on an assertion of fraud.
As the First Respondent submitted, SZFDE does not assist the Applicant. In SZFDE the High Court was considering circumstances in which the Federal Magistrates Court had found that a migration agent had acted fraudulently in dealing with the appellants for personal gain, that he had extracted money under false pretences and had dissuaded the appellants from attending a Refugee Review Tribunal hearing. It was in that context that the High Court stated at [49] that the fraud established on the part of the migration agent:
…had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.
The High Court went on to state at [50]-[51]:
50. Reference has been made earlier in these reasons to the submission for the Minister that any fraud perpetrated on the appellants was not a fraud “on” the Tribunal. Further, as noted above, Allsop J characterised the complaints of the appellants as not about the process but about their erstwhile agent and concluded that neither the decision nor the statutory process “was corrupted by fraud”. However, as in other areas of legal debate, including questions of federal legislative power under the Constitution itself, to say of a law or state of affairs that it bears one legal character does not necessarily deny it a second legal character which is of decisive significance.
51. No doubt [the agent] was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of [the agent], it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.
However, as the First Respondent contended, the decision in SZFDE was premised upon the need for stultification of the Tribunal’s processes, such that it could be said that there was fraud “on” the Tribunal, not simply that an act or omission could be characterised as fraudulent in relation to the visa applicant, but rather whether the person in question was fraudulent in a way that affected the Tribunal’s decision-making process under the relevant part of the Migration Act. It has not been established that there was fraud on the Tribunal in this case.
In SZFDE the High Court made the point that the issue of the effect of fraud on the Tribunal decision was to be resolved after close attention had been given to the nature, scope and purpose of the particular system of review by the Tribunal established under the Migration Act and the place in that system of registered migration agents. However, SZFDE does not stand for the proposition that “any” fraud invalidates a visa application or necessarily entitles an Applicant to relief in respect of a delegate’s decision. As their Honours explained (at [29]):
…Any application of a principle that “fraud unravels everything” requires consideration first of that which is to be “unravelled”, and secondly of what amounts to “fraud” in the particular context. It then is necessary to identify the available curial remedy to effect the “unravelling”.
Relevantly, the High Court found (at [28]) that it was unnecessary for the resolution of the appeal in SZFDE:
…to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision (whether a primary decision or, as in the case of the tribunal, an administrative decision itself made as a system of external administrative review), where the applicant for judicial review did not collude in the fraud practised on the administrative decision-maker or review body and did not then learn of the fraud but complains of it in subsequent proceedings.
In this case, as it has not been established that the agent engaged in fraud “on” the primary decision-maker, it is not necessary to determine the scope for judicial review in such circumstances.
More generally, insofar as the Applicant appeared to equate fraud with false and misleading information, the existence of false and misleading information does not, in itself, establish that there was “fraud” in the sense considered in SZFDE. Nothing said in SZFDE is to the contrary.
Further, contrary to the Applicant’s submissions, the High Court in SZFDE did not “just accept” that there was fraud. Rather, the decision was premised on the fact that the Federal Magistrates Court (at first instance) had found that there was fraud.
The Applicant appeared to maintain a contention that complicity on his part in any fraud would be irrelevant on the basis of an assertion that the High Court in SZFDE had in this respect departed from the approach taken by French J in the Full Court. In SZFDE the court mentioned (but did not decide) the issue of “whether it would be sufficient for the appellants to establish, for example, fraud “on” themselves as parties before the Tribunal” (at [6]) in circumstances where there was fraud perpetrated “on” the Tribunal as well as on the appellants (at [7]).
However the High Court’s remarks at [28] (set out above at [89]) about it being unnecessary to determine in generally applicable terms the scope for judicial review of an administrative decision for “third party fraud” where the applicant for judicial review “did not collude in the fraud practised” on the decision-maker do not involve an acceptance of the view that any complicity in fraud would be irrelevant. Moreover such an argument is contrary to the view taken by the Full Court of the Federal Court in SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170; [2008] FCAFC 152 and Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525; [2010] FCAFC 147 both of which were referred to in Gill (at [39]) which was cited for the Applicant (and also see SZMWT at [20] per Jagot J).
While judgment was reserved, the Full Court of the Federal Court delivered judgment in Singh. The parties filed further submissions. In Singh another visa applicant (Mr Jagmohan Singh) had unsuccessfully contended (in an application for review of a Tribunal decision affirming the decision of a delegate of the Minister) that his skilled visa application was a nullity in that it was not made by him but was made fraudulently by his migration agent in circumstances where he claimed he had told the agent to apply for a student visa on his behalf. The Full Court summarised Mr Jagmohan Singh’s claims as follows (at [4]-[6]):
4. The essence of the case is that Mr Singh denies that he ever applied for the skilled visa so that the Tribunal’s decision to refuse to issue the visa is invalid. Since it is invalid, so the argument goes, he has not been refused a visa within the meaning of s 48(1). Accordingly, that section does not presently bar him from applying for a fresh visa.
5. It will follow from the above that Mr Singh did not seek by his proceedings in the Federal Circuit Court, and does not seek by his appeal to this court, to have the Tribunal consider his application afresh. To the contrary, since he denies ever applying for the visa in the first place he seeks only the quashing of the decision, and a declaration that there was no valid visa application made by him. Indeed, as we explain in more detail later, it is not now in dispute that Mr Singh is not eligible to receive a skilled visa so there is also presently no dispute that the decisions of the delegate and the Tribunal are certainly correct in the sense that it would have been unlawful for either to issue Mr Singh with a skilled visa.
6.Mr Singh does not deny that an application was made in his name but says instead it was fraudulently made by his migration agent. Because it was fraudulently made he denies that he ever applied for a visa. Alternatively, he submits that the Tribunal’s function of conducting a review of the delegate’s decision was thwarted by the conduct of his migration agent in making the fraudulent application.
In Singh, the Federal Circuit Court had determined on the evidence before it (which included affidavit evidence from the visa applicant) that the migration agent had mistakenly applied for a skilled visa on behalf of Mr Jagmohan Singh, rather than a student visa (see Singh v Minister for Immigration and Border Protection [2014] FCCA 2867 at [4]-[5] per Turner J). However as the Court was not satisfied that any fraud by the migration agent was made out, it rejected the applicant’s case on its facts. The Federal Circuit Court had also found that if there was relevant fraud the applicant was complicit in the actions of his agent.
In the Full Court Mr Singh sought to overturn the Federal Circuit Court’s factual finding that the agent had not acted fraudulently. The Minister sought to agitate the question of whether Mr Jagmohan Singh had been complicit in the conduct of his migration agent in instructing him to lodge a skilled visa application, on the basis that he always knew what was happening, so no fraud was practised on him (see Singh at [9]). The Minister also submitted that even if the Tribunal’s decision were to be set aside, the delegate’s decision would remain in place and thus the bar on a further visa application in s.48(1) of the Act would continue to apply so the proceedings lacked utility and should be dismissed for the reason given in Prodduturi.
The Full Court found that this court had overlooked the applicant’s argument to it that he had sought a student visa, rather than a skilled visa (see Singh at [44]) and had failed to consider the Minister’s submission that Mr Jagmohan Singh’s failure to correct the alleged error of his agent in lodging a skilled visa application in a timely manner made it unlikely that the migration agent had lodged the visa application in error in the first place (see Singh at [47]).
However the Full Court also concluded that there was no proper basis to interfere with the trial judge’s conclusion that the agent did not act fraudulently in circumstances where it was implausible that he would have dishonestly lodged the visa application where he had no interest in doing so (see Singh at [48]). The Full Court found that regardless of whether the visa application was made in error or on Mr Jagmohan Singh’s instructions “the result would be the same” (Singh at [52]) because, in the absence of a finding of fraud, s.98 of the Act placed responsibility for the visa application on the visa applicant (Singh at [53]-[54]). Hence there would be no utility in a rehearing.
The Applicant contended that the factual matrix in the (Jagmohan) Singh case was very similar to that in the present case, except that in this case after the delegate’s decision the Applicant’s new migration agent had raised with the Department a claim that there had been no valid visa application.
Reference was made to an email to the Department appearing in the Court Book at p.81 which was said to have been sent in April 2012. However this email, which was one of the documents submitted to the Tribunal, in fact related to a different visa applicant (Mr Sran). This is not evidence of communication on behalf of this Applicant with the delegate, although there is evidence that the Applicant complained to MARA in August 2012, consented to his complaint being forwarded to the Department and also complained to the Queensland Office of Fair Trading on 10 September 2012.
Confusingly, the Applicant’s post-hearing written submissions also appeared to recognise that the issue of validity of his visa application was first raised with the Tribunal in September 2013 in support of the submission that the Tribunal had no jurisdiction because fraud rendered the visa application invalid.
It was submitted that these facts (and the delivery failure notice in respect of the delegate’s decision notification) distinguished the conduct of this applicant from the conduct of Mr Jagmohan Singh who, it was said, apparently did nothing to advise the Minister’s delegate that he had not authorised the making of the application and before the Tribunal only “faintly and inferentially” disavowed any knowledge of the visa application said to have been made fraudulently.
It was contended (despite the absence of evidentiary support for such a contention) that it appeared the email address provided with the Applicant’s visa application was created by S&S and formed part of their “modus operandi” and that there was “no evidence” that the Applicant was aware of that email address or that the earlier invitation to comment was communicated to him.
It was submitted that in this case the Applicant, when informed of the visa refusal, actively agitated that the application for a Subclass 485 visa was not authorised by him and that the application was vitiated by fraud.
The Applicant submitted that this conduct raised the direct and sustainable inference that he was “unaware of the conduct of the persons operating S & S Migration until such times as the communication of the refusal record to his representative and that thereafter he vociferously agitated an argument that the threshold application was invalid and that the MRT did not have jurisdiction.”
It was also submitted that (unlike in Singh) a finding that the visa application was invalid would not excite the operation of s.48 of the Act or preclude the making of another application (a process which would also enable the Applicant to seek ministerial intervention) in circumstances where the Applicant was said to hold a Subclass 457 visa. On this basis it was submitted that “the application before this Court is not futile”. It appears that this was intended to be a contention that it would not be futile to grant the relief sought by the Applicant.
As the First Respondent submitted, the significance of the Full Court’s decision in Singh is limited to the facts as found by the trial judge, in particular in relation to whether the migration agent in that case had engaged in fraud capable of overcoming the effect of s.98 of the Act. The Full Court’s decision in Singh does not establish any broad point of principle of assistance to the Applicant.
Insofar as the Applicant sought to distinguish Singh on the facts, in support of the proposition that it should be inferred from his conduct that he was “unaware of the conduct of S & S Migration” (presumably in support of the proposition that the application was made fraudulently by the agent and without his authorisation), as discussed above it has not been established that an inference of fraud by the migration agent is warranted. Moreover, in contrast to the situation before the Federal Circuit Court in Singh, in this case there was no affidavit evidence from the Applicant before the Court. The limited available evidence is not such as to establish the matters contended for by the Applicant.
Further, the Full Court in Singh made no findings in relation to the argument as to the correctness of Prodduturi which related principally to the question of the utility of the matter being remitted to the Tribunal (see Singh at [9] and [57]).
The decision of the Full Court in Singh does not assist the Applicant.
There has been no clear articulation by the Applicant as to how or why the matters of fact asserted in grounds 1 to 6 would, if accepted, be such that the visa application would necessarily be invalid. Even if it were to be accepted that the Applicant did not know that the agent was lodging an application for a Subclass 485 visa or that he was unaware of the (incorrect) content of the application in relation to the claimed skills assessment, I am not satisfied on the submissions before the Court that this would establish a basis on which to make a finding or declaration that the visa application was invalid.
Whether an application for a visa is valid is a question to be determined objectively by the court (Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47 at [26] - [27]). The requirements for a valid visa application prescribed in s.46 of the Act include requirements that it be for a visa of a class specified in the application, that it satisfy the criteria and requirements prescribed under s.46, that any visa application charge or fees payable have been paid and that it is not prevented by specified provisions.
Relevantly, in this case the visa application was for a Subclass 485 visa (the criteria for which are set out in Schedule 2 to the Migration Regulations). Moreover, s.98 of the Act provides that an applicant is taken to have filled out an application lodged on his behalf. As Driver FM pointed out in SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FMCA 1349 (affirmed on appeal by Bennett J in SZGJO v Ministerfor Immigration and Multicultural and Indigenous Affairs [2006] FCA 393) at [39]:
…an applicant is just as responsible for a false application when he is indifferent to its contents as where he has been found to be knowingly concerned with the making of the false application.
Also see SZMME v Minister for Immigration and Citizenship [2009] FMCA 323.
It is notable that on appeal in SZGJO Bennett J stated at [16]:
The appellant authorised and caused his migration agent to fill in the visa application form on his behalf. While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies.
In NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199, the Full Court of the Federal Court had found (at [16]) that the effect of s.98 was that:
The [visa applicant] is fixed with the responsibility for the actual content of a false application filed filled in on his behalf.
Critically, as the Full Court pointed out in Singh at [52]-[53], absent the establishment of fraud on the agent’s part s.98 of the Act would deem the visa applicant to have completed the visa application for himself.
In other words, s.98 would apply in circumstances where an applicant was found to have authorised and caused an application to be filled in on his behalf even if it contained false information (as the Tribunal found had occurred in this case). Mr Singh’s actions after the delegate’s decision are not such as to warrant an inference that the application for a Subclass 485 visa was not authorised by him and was vitiated by fraud and that he was “unaware” of the conduct of the persons operating S&S until communication of the delegate’s refusal to his representative. These contentions do not provide a basis on which orders for any of the relief or declarations sought by the Applicant should be made.
To the extent that the Applicant’s argument equates the concepts of false or misleading information and fraud, it is also notable that for the purposes of PIC 4020 an Applicant can give or cause to be given false or misleading information whether or not he or she is aware of the falsity of that information.
Insofar as the Applicant sought (in particular in ground 4) to rely in some way on the fact that the visa application was not submitted personally by him, s.98 addresses that contention.
If the Applicant intended to take issue in some way with the Tribunal’s findings in relation to fraud and the validity of the Subclass 485 visa application, no basis for such a contention has been established. On the contrary, the Tribunal conclusions in these respects were open to it on the material before it for the reasons which it gave.
The fact that the information provided to the Minister about the skills application was incorrect was not disputed before the Tribunal. The Applicant’s new migration agent conceded that the TRA reference number given in the visa application form was false. However, the Tribunal correctly had regard to authority for the proposition that PIC 4020(1) applies whether the information has been provided “knowingly or unwittingly” by the visa applicant (see Vyas v Minister for Immigration and Citizenship (2012) 263 FLR 131; [2012] FMCA 92). Consistent with such authority the Tribunal concluded that the Applicant had caused the information “to be given” to the Minister “whether he knew it or not”.
In that respect I note that in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42 at [43] to [44] Buchanan J cited Vyas with approval and suggested that it was not necessary to show knowing complicity by a visa applicant, albeit it was necessary that the information or document have the necessary quality of purposeful falsity. (Also see Patel v Minister for Immigration and Border Protection (2015) 145 ALD 566; [2015] FCAFC 22 at [17], [19] and [22]). In this case the Tribunal engaged with the issue of deliberate incorrectness, in proceeding on the basis that as the Applicant claimed, the visa application form was completed and lodged by the agent from S&S. This approach involved an implicit acceptance that the claim the agent made about the skills assessment was deliberately incorrect.
The Applicant’s contentions that his visa application was invalid (and that the Tribunal erred in not proceeding on this basis) and grounds 1 to 6 are not made out.
The Unlawful Tribunal Decision Argument
The next aspect of the grounds relied on by the Applicant involves the assertions that the visa application was invalid, that therefore the delegate’s decision was unlawful and hence that the Tribunal’s decision was unlawful. This argument was predicated upon the proposition that if a delegate considered a visa application that was subsequently found by the court to be invalid, then the delegate’s decision was therefore unlawful. However the difficulty that faces the Applicant is that the invalidity of the visa application (which turned on the “fraud” argument) has not been established. Hence on this factual basis alone, ground 7 cannot succeed.
It is the case that, as submitted generally for the Applicant, the Minister is not to consider an application that is not a valid application (see s.47(3) of the Act). However s.69 of the Act provides that non-compliance by the Minister with Subdivision AA or AB of Part 2 of the Act does not mean that the Minister’s decision to grant or refuse to grant a visa is not valid, but only that the decision might be wrong and might be set aside if reviewed (see Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486; [2000] FCA 1456 at [82]; and SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91 at [29]).
Moreover, even if (contrary to my view), the visa application was not a valid application for the purposes of s.46 of the Act, that is not such as to mean that the Tribunal necessarily had no power to review the delegate’s decision or that it would not have been open to the Tribunal to review and to set aside the decision of the delegate on that basis (even if it would have lacked jurisdiction to make any other decision because it could only exercise on review the powers that the delegate could have exercised (as to which see s.349(1) of the Act and Li at [81]; and SZGME at [30]; also see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; [1979] FCA 21 at [23]).
However it is not necessary to resolve such issues in these proceedings. It has not been established that the visa application was not a valid application, so that the issue of limitations of the Tribunal’s power in such a case does not arise. Ground 7 is not made out.
Insofar as the Applicant contended that there was no decision at all on the part of the delegate, the contentions he relies on in support of that argument are not such as to warrant such a conclusion. The issue of whether the Applicant would be barred from making any further application under s.48 of the Act because he had been refused a visa does not arise in these proceedings (cf. Kim).
The Unlawful Delegate’s Decision Argument
Ground 8 raises an argument based on Bhardwaj. It appeared to be contended that as the visa application was invalid, the delegate’s decision was unlawful and that it followed that the Tribunal’s decision was “no decision at all”. Insofar as the Applicant relied on Bhardwaj in support of the proposition that any decision affected by fraud was no decision, it has not been established either that the visa application was invalid or that the delegate’s decision was unlawful because of asserted fraud on the part of the agent. Nor has it been established that there was any fraud on the Tribunal in the requisite sense. Hence this ground is not made out.
Beyond this, Bhardwaj does not stand as authority for the proposition that all administrative decisions affected by jurisdictional error are necessarily of no effect. Rather, regard is to be had to the statutory context before determining the effect of any jurisdictional error. As the Full Court of the Federal Court stated in Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27]:
Bhardwaj, however, cannot be understood to stand for the proposition that jurisdictional error on the part of an administrative decision maker always means that the decision is no decision or a decision without legal consequences. The consequences of a decision infected by jurisdictional error will be determined by the Act which empowers the decision: Project Blue Sky Inc v Australian Broadcasting Authority (1948) 194 CLR 355 at 388–389; Jadwan v Department of Health (2003) 204 ALR 55 at [42] and [64].
In Jadwan the Full Court had observed (at [41]-[42]) in relation to Plaintiff S157/2002 that:
… As was the case in Bhardwaj itself, their Honours did not deal in S157 with the possible status of an administrative decision affected by jurisdictional error in the absence of a challenge to its validity, or after a court has found such error to have existed, but has declined to treat the decision as a nullity.
In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388–9 ; 153 ALR 490 at 515:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition (emphasis added).
As the First Respondent pointed out, part of the statutory context which would have to be considered had the visa application been found to be invalid, would be s.69 of the Act (as well as s.48 and PIC 4020). The First Respondent submitted that if the application was invalid the only effect of this would have been that the delegate had not acted in accordance with s.47(3), but that s.69 would preserve validity, at least for the purposes of the matter going on review to the Tribunal in the manner considered above (see Li at [81] and [82]). Thus, even if the original application was invalid, that would not invalidate the delegate’s decision such as to render it a nullity in the sense contended for by the Applicant, whether in reliance on the principles in Bhardwaj or otherwise. The Applicant’s submissions did not address such contentions, except to submit that s.69 never arose because there was “no decision for anyone to review”. In these circumstances, given that jurisdictional error has not been established on any of the bases contended for by the Applicant, I do not consider it appropriate to consider this issue further.
The Jurisdiction Argument
Insofar as it was submitted that this Court has no jurisdiction, such submission was dependant on the Applicant establishing invalidity of the Tribunal decision. This claim has not been made out.
Grounds 1 to 8 do not establish a basis on which to make any of the orders or declarations sought by the Applicant.
Ground 9
In the course of oral submissions, the Applicant raised (for the first time) a separate basis on which it was asserted that the Tribunal erred when it treated his 2011 application for a Subclass 485 visa as a valid visa application. He was given leave to file a Further Further Amended Application. Mr Ford made oral submissions in relation to such proposed new ground. The parties also had the opportunity to address this new ground (Ground 9) in post-hearing written submissions. It is as follows:
9. The Migration Review Tribunal (Tribunal erred) (sic) when it treated the application for a Skilled (Provisional) (Class VC) (Subclass 485) visa as a valid application.
Particulars
a. The Applicant applied for a Skilled (Provisional) (Class VC) visa on 28 September 2011.
b. There are two subclasses of visa in the class VC. They are the 485 (skilled as graduate) and the 487 (skilled as regional sponsored) visa;
c. Sections 45, 46 and 47 of the Migration Act 1958 require the Minister and the Migration Review Tribunal to assess the application against both of the subclass criteria. In this case, this means that the decision-maker is required to assess the application against the 487 visa. Even though S and S Migration indicated that it was their intention to apply for the 485 visa, the application must also be assessed against the 487 criteria. The fact that Schedule 1 of the Migration Regulations states that the criteria is only for non 485 visa applications does not mean that it does not apply to the applicant. It does apply to the applicant.
d. Sections 45, 46 and 47 of the Migration Act stipulate that the satisfaction of the Schedule 1 criteria is a requirement for the making of a valid visa application. Schedule 1 goes to the validity of a visa application. If an application does not satisfy Schedule 1 then the application is not a valid visa application.
e. Item 1229 as at 28 September 2011 states at 1229(3)(aa)(i) that if the applicant is not seeking to satisfy the criteria for the grant of a Subclass 485 visa and has not nominated a skilled occupation, the applicant’s skills must have been assessed by the relevant assessing body.
f. Here the applicant was also seeking to satisfy the 487 criteria and therefore was required to provide a skills assessment. S and S Migration provided a fake skills assessment. The provision of a fake skills assessment does not mean that a skills assessment was provided. It means that no skills assessment was provided. As no skills assessment was provided, the application was therefore an invalid application.
g. The same approach applies to Item 1229(3)(ab).
h. Item 1229(7)(b) provides that the applicant is seeking to satisfy the criteria for the grant of both subclasses of visa must be less than 50 and must nominate a skilled occupation. Item 1229(7) applies to both the 485 and the 487 visa.
i. In this case, however, an occupation was nominated but it was a fake occupation. This means that no occupation was in fact nominated. As no occupation was nominated, the application was an invalid application, and therefore, the Minister was precluded from considering an application that is not a valid application. The provision of the occupation was a condition precedent to the validity of the occupation (sic). It appears in Schedule 1 and it goes to the validity of the application.
The Applicant submitted that the Minister (and the Tribunal) had to assess the visa application against all the subclasses for the class of visa in issue. In this case Class VC included subclasses 485 and 487. On this basis it was submitted that the criteria in Schedule 1 to the Migration Regulations applicable to a Subclass 487 application were in issue. It was contended that such criteria were not met.
Schedule 1 to the Migration Regulations sets out specific requirements for visas of particular classes.
At all relevant times, Item 1229 (which applied to an application for a Class VC visa) specified the application form to be used and charges to be paid and also contained “Other” requirements, relevantly as follows:
(2) Visa application charge:
(a) First instalment (payable at the time application ins made):
(i) In the case of an applicant seeking to satisfy the criteria for the grant of a Subclass 485 (Skilled – Graduate) visa: $270
(ii) In the case of an applicant seeking to satisfy the criteria for the grant of a Subclass 487 (Skilled – Regional Sponsored) visa, and who is the holder of:
(A) a Skilled – Independent Regional (Provisional) (Class UX) visa; or
(B) a Skilled – Designated Area-sponsored (Provisional) (Class UZ) visa; or
(C) a Subclass 475 (Skilled – Regional Sponsored) visa; or
(D) a Subclass 487 (Skilled – Regional Sponsored) visa: $270
(iii) In any other case: $2,960.
(b) Second instalment (payable before grant of visa):
(i) In the case of an applicant who:
(A) seeks to satisfy the criteria for the grant of a Subclass 487 (Skilled – Regional Sponsored) visa; and
(B) had turned 18 at the time of application; and
(C) is assessed as not having functional English; and
(D) has not paid a second instalment of visa application charge in relation to the application for the visa, mentioned in paragraph (a), that the applicant holds: $4,110
(ii) In any other case: Nil
(3) Other:
…
(aa) If the applicant:
(i) is not seeking to satisfy the criteria for the grant of a Subclass 485(Skilled-Graduate visa); and
(ii) has not nominated a skilled occupation specified by the Minister in an instrument in writing for paragraph (ab);
the applicant’s skills must have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.
(ab) If the applicant:
(i) is not seeking to satisfy the criteria for the grant of a Subclass 485 (Skilled – Graduate) visa; and
(ii) has nominated a skilled occupation specified by the Minister in an instrument in writing for this paragraph;
the applicant’s skills must have been assessed by the relevant assessing authority, on or after 1 January 2010, as suitable for the applicant’s nominated skilled occupation.
…
(da) Applicant seeking to satisfy the primary criteria for the grant of a Subclass 487 (Skilled – Regional Sponsored) visa must meet the requirements of subitem (3A) or (3B).
(e)The requirements of subitem (4), (5), (6), (7), (8) or (9) must be satisfied.
…
(7) The following requirements must be met:
(a) the applicant must be:
(i) the holder of a Subclass 417 (Working Holiday) visa; or
(ii) the holder of a Subclass 442 (Occupational Trainee) visa that was granted on the basis of satisfying the primary criteria for that visa;
(b) the applicant seeking to satisfy the primary criteria for the grant of the visa:
(i) must be less than 50; and
(ii) must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this subparagraph.
…
The Applicant contended that ss.45 and 46 of the Act made it clear that in order to make a valid application an applicant must satisfy the requirements of Schedule 1 and that it was generally accepted that an application would be invalid if it was not made in accordance with the requirements of Schedule 1.
It was submitted that it appeared that unbeknownst to the Applicant S&S had lodged a document which purported to be a skills assessment in an attempt to satisfy the requirements of Schedule 1, in particular the requirement in Item 1229(3)(aa) and 1229(3)(ab) that the Applicant’s skills had been assessed by the relevant assessing authority.
The Applicant acknowledged that the provisions in Items 1229(3)(aa) and (ab) applied only where an applicant was not seeking to satisfy the criteria for the grant of a Subclass 485 visa, but contended that this meant that while the decision-maker did not have to consider these matters when considering the application as an application for a Subclass 485 visa, when the decision-maker turned to consider the other subclasses within the class in question it was necessary to address these requirements in Item 1229 and that if a skills assessment had not been provided in accordance with Item 1229(3)(aa) or (ab) that went to the validity of the visa application.
After the hearing the Applicant filed an affidavit annexing copies of relevant parts of the Migration Regulations as they stood at the time of the visa application in Schedule 1 to the Migration Regulations. The First Respondent filed supplementary submissions addressing ground 9. The solicitor for the Applicant advised the court he did not intend to file submissions in reply.
At the time of the visa application, Part 485 in Schedule 2 to the Regulations contained the criteria for a Subclass 485 visa, including those in relation to a skills assessment. In particular, there was a time of application requirement in cl.485.214 that the Minister was “satisfied that the applicant has applied for an assessment the applicant’s skills for the nominated skilled occupation by a relevant assessing authority”. In addition, a time of decision criterion in clause 485.221(1), required that “[t]he skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation”.
However, the Applicant contended that the visa application was invalid on the basis that it was also an application for a Subclass 487 visa and failed to meet Items 1229(3)(aa) or (ab) of the Migration Regulations in relation to a Subclass 487 visa application (which required that there be a skills assessment at the time of the visa application).
It was contended that because a “fake” skills assessment had been provided with the Applicant’s visa application, that meant that no skills assessment was provided, contrary to Items 1229(3)(aa) and 1229(3)(ab) in Schedule 1 to the Migration Regulations.
In addition, it was contended that as the application had nominated a “fake” occupation, no occupation had been nominated by the Applicant and that this was contrary to the requirement in Item 1229(7)(b)(ii) in Schedule 1 that an applicant seeking to satisfy the primary criteria for the grant of the visa “must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this subparagraph”.
This ground was expressed as a contention that the Tribunal erred when it treated the visa application as a valid application. Insofar as this amounts to a contention that the Tribunal erred in reviewing the delegate’s decision, as the First Respondent submitted the Tribunal’s role is to review decisions it is empowered under the Act to review (see ss.338, 348 and 349 of the Act). There is authority to the effect that the Tribunal is bound under s.348(1) to review a delegate’s decision even if that decision had been made without jurisdiction (see Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; [2000] FCA 906 at [85]).
In SZGME at [25] Black CJ and Allsop J suggested that:
Secondly, the well-known line of cases beginning with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 supported the proposition that the review process which imported merits review by an administrative body operated (subject to statute to the contrary) on valid and invalid decisions alike. It is the decision that has in fact been made that is reviewed. After Yilmaz, Zubair 139 FCR 344, Ahmed 143 FCR 314 and Uddin 149 FCR 1 reiterated this proposition: see, in particular, Ahmed at 322 [36]. The fact that some defect (even one leading to jurisdictional error) can be ascertained in the decision subject to review, does not prevent a review body exercising the powers and discretions of the person who made the decision: see, here, the Migration Act, s 415…
On this basis, whether the visa application was valid or not and whether or not the delegate was wrong to have proceeded on the basis that the visa application was valid would not be matters that affected the Tribunal’s jurisdiction to review the delegate’s decision and a finding by the court that the visa application was invalid would not entitle the Applicant to the relief sought in relation to the Tribunal. The Applicant did not address such authority in submissions.
In any event, it has not been established that the visa application was invalid on either basis contended for in ground 9.
It is the case that a visa application that does not meet the applicable requirements of Schedule 1 is not a valid application under the Act (see s.46(3)) and reg.2.07(1)(c)) and that for a visa applicant seeking a Class VC visa, the applicable Schedule 1 requirements are to be found in Item 1229 of that Schedule.
However I am not satisfied that the requirements in Item 1229(3)(aa) or 1229(3)(ab) or 1229(7) applied to the Applicant’s visa application.
As stated in Item 1229(10), at the time of the visa application Class VC contained two subclasses: Subclass 485 and Subclass 487. However, the Item 1229(3) requirements applied only if an Applicant was “not seeking to satisfy the criteria for the grant of a Subclass 485 visa”. In this case the general skilled migration application form lodged on 28 September 2011 indicated that the Applicant intended to apply for a Subclass 485 visa, that is, a Skilled – Graduate visa, as distinct from a Skilled – Regional sponsored (Subclass 487) visa.
Under the heading “Applicant skills assessment” the Applicant (through his migration agent) provided details of a nominated occupation, the name of the assessing authority, date of the (claimed) skills assessment and a reference/receipt number.
In the decision notification letter the delegate referred to the application as an application for a Class VC visa, but pointed out that the Applicant had indicated on his application form that he wished to be considered for the grant of a Skilled – Graduate (Subclass 485) visa. The delegate found that the Applicant did not meet the criteria for a Subclass 485 visa. In addition, the delegate made the point that to be considered a valid application for a Subclass 487 visa the application must meet certain criteria in Item 1229.
As the delegate pointed out, there are various criteria in Item 1229(2) which the Applicant did not meet (in particular, the requirement in Item 1229(2)(a)(iii) that an applicant pay a first instalment visa application charge of $2,960 at the time of the application if he sought a Subclass 487 visa). In this case the Applicant had paid $270, which was the amount required for an applicant seeking to satisfy the criteria for the grant of Subclass 485 visa (see Item 1229(2)(a)(i)). In addition there is no suggestion that the Applicant was the holder of any of the classes or subclasses of visa mentioned in Item 1229(2)(a)(ii)(A)-(D). As the delegate found, the Applicant could not meet the requirements of Item 1229(2)(a)(ii).
The delegate found that as the Applicant did not meet any of the requirements in Item 1229(2) which applied to lodgement of a valid application for a Subclass 487 visa, his application could not be considered a valid application for a Subclass 487 visa. The Applicant did not challenge (and no error is apparent in) this reasoning.
The Tribunal considered the visa application as a Subclass 485 application. It also addressed the fact that Class VC included Subclass 487, but found that the Applicant had sought to satisfy the criteria for a Subclass 485 visa and that he had provided “no evidence addressing the application requirements and visa criteria specific to” Subclass 487.
Moreover Items 1229(3)(aa) and (ab) are expressed to apply only “if” the Applicant “is not seeking to satisfy the criteria for the grant of a subclass 485 (skilled – graduate) visa”. Given that there were only two subclasses in Class VC at the relevant time, it is clear that these requirements applied only to visa applicants seeking to satisfy the criteria for the grant of a Subclass 487 visa.
While the decision-maker is required to consider all of the subclasses in a particular class of visa, this does not establish that the Applicant’s visa application was such that he was “not” seeking to satisfy the criteria for the grant of a Subclass 485 (Skilled – Graduate) visa. I am satisfied on the material before the court, in particular the content of the application form and the fee paid, that the Applicant was clearly seeking to satisfy the criteria for the grant of a Subclass 485 visa. Hence he was not required to meet the requirements of Item 1229(3)(aa) and (ab) for his visa application to be valid. Any failure to meet those subitems could not have affected the validity of his visa application.
Even if the visa application should be construed as one to which these items did apply, a failure by the Applicant to meet the requirements of Subitems 1229(3)(aa) or (ab) would simply have been an additional basis on which the delegate could have found that the application could not be considered a valid application for a Subclass 487 visa. However any such findings would have no implications for the validity of the visa application as an application for a Subclass 485 visa.
The other basis on which invalidity was asserted was that the visa application was invalid because it did not meet the requirement in Item 1229(7) of Schedule 1 to the Migration Regulations that the Applicant nominate a skilled occupation.
It is not in dispute that Item 1229(7) applied in respect of applications for both a Subclass 485 visa and a Subclass 487 visa. However, as the First Respondent submitted, Subitem (7) was not a requirement this Applicant had to satisfy, because he was not, at the time of his visa application, a holder of either a Subclass 417 visa or a Subclass 442 visa as required by Subitem 1229(7)(a).
Importantly, Item 1229(3)(e) specifies as an “other” requirement that “the requirements of subitem (4), (5), (6), (7), (8) or (9) must be satisfied” (emphasis added). Consistent with the reference to “or”, when one considers those subitems it is apparent that they are alternatives and that different requirements apply depending on the class of visa held by the applicant at the time of the application for a Class VC visa. As Mr Singh was not the holder of a Subclass 417 visa or a Subclass 442 visa, Subitem 1229(7) of Schedule 1 to the Migration Regulations was not applicable to his visa application.
In any event, even if Item 1229(7)(b) (or an equivalent requirement in relation to the holder of a class of visa specified in another subitem in Item 1229 such as Item 1229(4)(b)(ii)) was applicable, the relevant requirement was simply that the Applicant “must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this subparagraph”. In this case, the visa application contained a nominated occupation of “Cook”. TRA was named as the assessing authority and a date of a skills assessment and a reference/receipt number for the skills assessment were provided. Contrary to the Applicant’s contention, the fact that the details provided in relation to a skills assessment were false (as the Tribunal found) and/or the fact that the skilled occupation nominated was not in fact Mr Singh’s actual occupation (if that was the case) does not mean that the visa applicant did not, in his application, nominate a skilled occupation. There is no suggestion that the occupation of “Cook” was not one that was specified by the Minister in an instrument in writing for the purposes of subparagraph 1229(7)(b)) or the equivalent requirement in other subitems. Hence, insofar as it applied, the requirement of Subitem 1229(7)(b) was met.
None of the issues raised in or in relation to this ground identify any jurisdictional error in the Tribunal’s decision.
As none of the grounds relied on by the Applicant has been established, the application must be dismissed.
I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 14 April 2016
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