SINGH v Minister for Immigration
[2014] FCCA 2867
•16 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2867 |
| Catchwords: MIGRATION – Judicial review – whether migration agent applied for incorrect visa by mistake – whether fraud on Tribunal or applicant – principal and agent – whether applicant bound by actions of his migration agent – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.98 Migration Regulations 1994, reg.1.15C, Sch.2 |
| Minister for Immigration and Citizenship v Lu [2010] FCAFC 147 Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501 Minister for Immigration and Multicultural Affairs v SZFDE(2006) 154 FCR 365 NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 Sran v Minister for Immigration and Citizenship (2014) 283 FLR 391 SZFDE v Minister for Immigration and Citizenship(2007) 232 CLR 189 SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211 SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 SZMGX vMinister for Immigration and Citizenship [2009] FCAFC 67 SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158 |
| Applicant: | JAGMOHAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1823 of 2013 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 14 August 2014 |
| Date of Last Submission: | 7 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 16 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Ravi James Lawyers |
| Counsel for the First Respondent: | Mr Rebikoff |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application for judicial review is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1823 of 2013
| JAGMOHAN SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 4 October 2013. That decision affirmed the decision of the delegate not to grant the applicant a Skilled (Provisional) (Class VC) visa.
The applicant’s migration agent (the “migration agent”) applied for that type of visa, which required the applicant to have undertaken an International English Language Testing System (“IELTS”) test within the last 24 months before the date of application (Court Book “CB” p.15.5). The applicant alleges the agent thereby applied for the incorrect visa, as the applicant had not undertaken an IELTS.
The applicant deposes in his Affidavit affirmed on 29 October 2013 at [2] that he:
“… approached SS Migration Agents to seek advice concerning my status at that time and the prospect of converting my visa as a Student-Dependent to that of a Student visa.”
The agent stated that he would to “consider my situation and advise me” (Ibid [3] and CB p.5).
The applicant had not undertaken an IELTS and the delegate refused the visa (CB p.45.2). The applicant deposes that his migration agent applied for that type of visa without instructions. There is no evidence that the incorrect type of visa was applied for by the migration agent, deliberately or dishonestly.
The Court infers that the incorrect visa was applied for by the migration agent by mistake. If the incorrect visa was applied for deliberately, the migration agent would soon suffer a loss of reputation and business. Also the migration agent had nothing to gain by applying for the incorrect visa.
At the hearing before the Court on 14 August 2014, Mr Aleksov of Counsel appeared for the applicant and Mr Rebikoff of Counsel for the first respondent.
Having considered the submissions the Court decides as follows.
The first issue before the Court is whether there was fraud by the migration agent on the Tribunal and/or the applicant?
The next issue is whether, if the application was lodged by mistake, the proceedings before the delegate and Tribunal are vitiated, and an application is taken not to have been made by the applicant, and considered by the delegate and Tribunal.
It is clear that the delegate and Tribunal were misled as to the application the applicant wanted considered. However, the Court refers to the obiter dictum of Justice French (as he then was) in Minister for Immigration and Multicultural Affairs v SZFDE(2006) 154 FCR 365 at p.399 as follows:
“There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made…”.
That passage was referred to with approval by the High Court on appeal: see SZFDE v Minister for Immigration and Citizenship(2007) 232 CLR 189 at [53].
French J, continued:
“But where a person’s participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case.”
The Court finds that here, there is no evidence of ‘material dishonesty’ by the migration agent. The Court does not find that the migration agent taking money for his services is evidence of fraud. The obiter dictum of French J is of great persuasive authority.
Was there fraud on the Tribunal and/or on the Applicant?
The Court refers again to the decision of the High Court in SZFDE (supra). There, the migration agent represented to the applicant that he was a solicitor and migration agent, after his practicing certificate had been cancelled, and advised the applicant not to appear before the Tribunal.
The Court held that there was fraud on the Tribunal and on the applicant so that the jurisdiction remained unexercised, and writs had been appropriately ordered.
The Court refers to the following passages from that decision:
“Fraud” in the law
“8. It is convenient first to consider the place of “fraud” in the framework of general legal principal. In his celebrated speech in Reddaway v Banham[1], Lord Macnaghten spoke of the various guises in which fraud appears in the conduct of human affairs, saying “fraud is infinite in variety”. A corollary, expressed by Kerr in his Treatise on the Law of Fraud and Mistake[2], is that:
[1] [1896] AC 199 at 221.
[2] 6th ed (1929), p 1 (fn omitted).
“The fertility of man’s invention in devising new schemes of fraud is so great, that the courts have always declined to define it … reserving to themselves the liberty to deal with it under whatever form it may present itself.”
…
14. Thirdly, in the present case the appellants do not challenge the description by French J of the Tribunal as having acted “blame-lessly”[3]. But the appellants do direct attention to the effect upon the processes of the Tribunal of the dishonest acts and omissions of a third party, Mr Hussain. In this regard, the appellants pray in aid another generally expressed precept drawn from private law and from the significance of dishonesty in the litigation of private rights. This is expressed in the oft-repeated proposition that whilst on one hand fraud may be infinite, on the other hand “fraud unravels everything”.
[3] (2006) 154 FCR 365 at 400
How much does “fraud” unravel?
15. In Lazarus Estates Ltd v Beasley[4] Denning LJ declared:
[4] [1956] 1 QB 702 at 712-713
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever: see as to deeds, Collins v Blantern[5]; as to judgments, Duchess of Kingston’s Case (35); and as to contracts, Master v Miller[6].”
[5] 1 Smith’s Leading Cases, 13th ed, p 406; (1767) 2 Wils KB 34 [195 ER 847].
[6] 2 Smith’s Leading Cases, 13th ed, 644, at pp 646, 651; (1776) 20 State Tr 355 at 538-539, 543-544.
Earlier, speaking in this Court of a fraudulently obtained trade mark registration, Williams J said in Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd[7] :
[7] (1946) 75 CLR 487 at 493.
“Fraud is conduct which vitiates every transaction known to the law. It even vitiates a judgment of the Court. It is an insidious disease, and if clearly proved spreads to and infects the whole transaction (Jonesco v Beard[8]).”
[8] [1930] AC 298 at 301-302.
…
40. The Federal Magistrate held that Mr Hussain had acted fraudulently in his dealings with the appellants for personal gain, that he had extracted money under false pretences and that the appellants had been dissuaded from attending the Tribunal hearing “by the fraudulent behaviour of Mr Hussain”. The result was to have “deprived the invitation to the hearing [of] its quality of being a meaningful invitation under s 425”.
41. In the Full Court French J properly observed [9]:
“The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings.”
42. In his reasons, French J developed the matter as follows [10]:
“The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was ‘not accepting any visa applications at all at the moment’. He expressed a false concern that if [the first appellant] and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice [the first appellant’s] prospects of a successful outcome on the basis of a submission to the Minister.
[9] (2006) 154 FCR 365 at 383.
[10] (2006) 154 FCR 365 at 399-400.
…
51. No doubt Mr Hussain 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 Mr Hussain, 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.
52. The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj [11].
53. The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. 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 [12]. The outcome in the present appeal stands apart from and above such considerations.
[11] (2002) 209 CLR 597 at 614-615 [51]. See, further, Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76].
[12] (2006) 154 FCR 365 at 399.
(emphasis added)
The Court finds that here, there was not fraud on the Tribunal or the applicant. The Court finds that the decision in SZFDE (supra) deals only with fraud resulting from dishonest or improper acts: see [40], [42], [51] (supra). There is nothing in SZFDE (supra) that is inconsistent with the requirement that for an act to be found to be fraudulent, it must involve a dishonest or deceitful act.
The Court refers to the History of Criminal Law of England (Vol.2) (MacMillan and Co 1883) by Sir James Fitzjames Stephen which identifies the two essential elements of fraud at pp.121 to 122 as follows:
“There has always been a great reluctance amongst lawyers to attempt to define fraud, and this is not unnatural when we consider the number of different kinds of conduct to which the word is applied in connection with different branches of law, and especially in connection with the equitable branch of it. I shall not attempt to construct a definition which will meet every case which might be suggested, but there is little danger in saying that whenever the words “fraud” or “intent to defraud” or “fraudulently” occur in the definition of a crime two elements at least are essential to the commission of the crime: namely, first, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy.”
As stated in An Introduction to Corporate Regulation and Standardization (practitioner.com):
It is impossible to provide a comprehensive definition of fraud. Indeed, it may be possible to distinguish between two general types of definition: a general broader one and a criminal narrower one. However, all definitions have one thing in common – and element of dishonesty or deceit.
The decision in SZFDE (supra) leaves open the question of what should happen if the Tribunal is prevented from hearing the true application by an applicant because of a negligent mistake by an agent. French J supplied the answer in his obiter dictum; that a person affected by bad or negligent advice should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made.
As decided in Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501 at [33]:
“The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 ; [1938] ALR 334 at 342–2 and 344–5 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.”
The obiter dictum of French, J was referred to with approval.
Indeed, in SZFDE the High Court endorsed the statement by French J at [53] 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.” see (2007) 232 CLR 189 at [53].
Principal and Agent
A person is bound by the acts of their agent (here the migration agent) that are done within the normal course of business (of a migration agent), and therefore within the range of their apparent authority. Therefore the applicant here is bound by the acts of his migration agent which were done in the normal course of business.
The applicant appeared before the Tribunal on 2 October 2013, having known since at least 10 February 2012 the details of the visa his migration agent had applied for.
The actions of the migration agent did not prevent the delegate or Tribunal from exercising their jurisdiction, as they considered the application put forward on behalf of the applicant.
The Court finds that the applicant is bound by the actions of his migration agent. Section 98 of the Migration Act 1958 (the “Act”) makes the applicant responsible for the content of his application.
The Court was referred to the decision in Sran v Minister for Immigration and Citizenship (2014) 283 FLR 391 at [34]-[85] that a principal will be liable for the fraudulent conduct of an agent provided the acts are within the scope of an agents authority. Here, the migration agent was asked to consider the applicant’s situation and advise him. The applicant sought advice on the prospect of converting his visa to a student visa (CB p.5 and Affidavit of the applicant affirmed 29 October 2013 at [2]).
In the applicant’s Affidavit affirmed on 28 March 2014, he states at [7] that he told Rajiv that he:
“…wanted to apply for a conversion of my student dependent visa to a student visa, to study for an Automotive Diploma.”
Rajiv told him “… that this was a simple process, and that he would file my application”.
Does a mistake or negligent advice by the migration agent vitiate the proceedings?
The Court finds that they do not: see SZFDE per French J and endorsed by the High Court at [53], and SZLIX (supra). It may be complained that the application before the delegate and the Tribunal was not the applicant’s preferred application, and was not put forward by his migration agent with the applicant’s knowledge, consent or authority. However, as there was no fraud by the agent, the applicant is bound by the acts of his migration agent.
Consideration of Application for a visa.
The applicant applied for a visa on 7 January 2011. At the time Skill (Provisional) (Class VC) contained two subclasses:
·485 Skilled-Graduate; and
·487 Skilled-Regional Sponsored (CB p.82.2).
The relevant class here was 485 (CB p.7), the criteria for which were set out in subclass 485 in Schedule 2 to the Migration Regulations 1994 (the “Regulations”). Regulation 485.215 and 485.221 were some of the mandatory requirements for the grant of the visa and provided at the time of the delegates decision as follow:
Regulation 485.215
The applicant has competent English
Regulation 485.221
(1)The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.
Competent English is defined in reg.1.15C as follows:
(1)If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii)a score:
(A) specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph
The application for a visa lodged on 7 January 2011 (CB p.7), declared that the applicant had not undertaken an English test within the last 24 months (CB p.15.5). On 10 February 2012 the Department requested the applicant provide evidence of his English language ability within 28 days (CB p.44.8). On 27 September 2012, the Department again requested the applicant provide evidence of his English language ability within 28 days (CB pp.29, 35 and 44).
The delegate refused to grant the applicant a visa because the applicant had not provided an IELTS test report form, and had not shown that he had “achieved, in a test conducted no more than 2 years before the day on which the application was lodged an IELTS test score of at least 6 for each of the 4 test components” (CB p.45.2). The applicant therefore did not meet the requirements of reg.485.215 (CB p.45.5).
The applicant applied for a review of the delegate’s decision on 10 December 2012 (CB p.49). By letter to the applicant dated 6 September 2013, the Tribunal invited the applicant to appear before it on
2 October 2013 to give evidence and present arguments (CB p.62). The applicant’s migration agent responded on 27 September 2013 that they would appear and sought an interpreter for the applicant (CB p.69). The migration agent from Ravi James Lawyers, and the applicant, appeared at the hearing with the assistance of an interpreter (CB p.73).
The Tribunal affirmed the decision of the delegate. The applicant then applied to the Court for judicial review. By the time of the Tribunal hearing, the applicant had been aware for 19 months [since the Department’s letter dated 10 February 2012 (CB p.17)] that his application was for a Skilled (Provisional) (Class VC) visa (CB p.43), and did nothing to disabuse the situation. He was therefore complicit in allowing the Tribunal to consider his visa application on that basis.
The grounds for judicial review are set out in the amended application filed on 11 August 2014 as follow:
(1)The decision of the Tribunal was vitiated by the fraudulent conduct of SS Migration Agents.
Particulars
(a)The applicant relied on S.S Migration Agents that he will, as a migration agent, provide him with assistance and advice to seek a further student visa.
(b)The Tribunal failed to observe requirements of procedural fairness in that it did not inquire into the statements made by the applicant about how the application was made in which he had no part. The Tribunal failed to inquire to ascertain the fact as to whether it was a valid application.
(c)The Tribunal failed to take into account the relevant considerations that it was bound to take into account.
On 28 May 2014 Judge Riethmuller declared:
(1)Pursuant to s 45 of the Federal Circuit Court of Australia Act 1999 and r 14.02 of the Rules, it is appropriate in the interests of the administration of justice for the Applicant to give discovery by 4 June 2014 of documents in his possession, custody or power evidencing his dealings with S & S Migration Agents as referred to in the affidavit of the Applicant affirmed on 28 March 2014 and filed in this proceeding.
And ordered as follows:
(2)The date in paragraph 5 of the Orders of Registrar Caporale made 17 January 2014 for the First Respondent to file and serve written submissions be extended to 6 June 2014.
In the applicant’s Affidavit affirmed on 28 March 2014, the applicant deposed:
·That he approached SS Migration Agents around January 2011 to “assist me with converting my student-dependent visa to a student visa” [7].
·He spoke with migration agent Jeetender Ajjan who asked him to attend his office where “Rajiv” will assist [5].
·The applicant so attended and spoke with Rajiv who advised that it was “a simple process, and that he would file my application and contact me when the outcome is known”.
·The applicant was not asked to sign documents and was told that an English language assessment could be applied for by the applicant when he began studying his course (Automotive Diploma) [10] – [11].
·“Neither Rajiv nor the Agent told me that they were going to make an application for a skilled visa on my behalf” [21].
·The applicant alleges that Rajiv or the migration agent provided “information to the department that was misleading or incorrect” [22].
The Court finds that the failure by the migration agent to provide the required assistance to the applicant is not fraud on the applicant or on the Tribunal.
The Tribunal concluded that the primary issue in the case was whether the applicant had competent English, which was a criteria for the Skilled (Provisional) (Class VC) visa applied for.
Regulation 1.15C(1)(i)(A) provides for a person to take a language test “specified by the Minister in an instrument in writing”. The Tribunal stated that the current instrument in writing applies to applications lodged before 1 July 2012, but does not reflect the structure of reg.1.15C in force before 1 July 2011. (The Court notes that the applicant’s application was lodged on 7 January 2011).
The Tribunal noted that there was a specified instrument applicable after 1 July 2011. The Tribunal stated that whichever instrument applied, “the specific scores, tests and passports are substantially the same” (CB p.82.9).
The Tribunal found that the applicant did not hold the required passport for the visa under reg.1.15C(b) (CB p.82.10).
The applicant gave evidence that he had no knowledge that his migration agent was applying for a Skilled visa. Based on the evidence given before the Tribunal, the content of the applicant’s Affidavit sworn 28 March 2014, the discovered material and the oral evidence, the Court accepts that the applicant did not know until 10 February 2012 (supra) that his migration agent had applied for a Skilled (Provisional) (Class VC) visa.
The Court has found that the proceedings were not vitiated by fraud and the applicant is bound by the acts of his migration agent. The applicant was aware on 10 February 2012 of the type of visa that had been applied for, and did nothing to alert the Tribunal; he let it proceed on that basis.
Applying the obiter dictum of Justice French in SZFDE (supra), the applicant cannot be heard to complain.
Closing Submissions for the First Respondent
The Court finds that on the applicant’s own evidence, he sought advice from the migration agent on the current status and on the prospect of converting his visa from a student-dependent to that of a student visa (CB p.85). There is no evidence that he instructed the migration agent to apply for a particular type of visa.
Further, before the Tribunal reached its decision, the applicant was aware that a Skilled (Provisional) (Class VC) visa application had been lodged rather than a student visa application (Transcript “T” p.20, l.25-34) and he took no action to rectify the situation (T p.33, l.39-44). The applicant stated that he knew in September 2012 that an application for a Skilled visa had been lodged rather than a Student visa.
The first respondent addressed the decision in SZFDE. The submissions are in line with the Court’s observations on that case and on SZLIX.
The Court has also addressed s.98 of the Act (supra). SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [7] – [8] confirms that a visa applicant has responsibility under s.98, even if the applicant is unaware of the contents of the application. “The appellant is fixed with responsibility for the actual content of the false application filled in on his behalf”: see NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [16].
Closing Submissions for the Applicant
The applicant alleges that the migration agent submitted false and fabricated information. The Court finds no evidence to prove that was deliberate or dishonest. There is no evidence that the migration agent received a higher payment for submitting the application for a Skilled (Provisional) (Class VC) visa.
The Court finds that the applicant has not established fraud by the migration agent.
A valid application for a visa was considered by the delegate and the Tribunal. If the applicant had notified the Tribunal as soon as he became aware that the incorrect visa had been applied for, remedial action could have been taken.
The submissions as to fraud have been considered in the Courts determination (supra).
In SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152, the applicant consented to false information being submitted to the Tribunal. There was therefore obvious deceit and dishonesty. That has not been established here. The present case is distinguishable.
In Minister for Immigration and Citizenship v Lu [2010] FCAFC 147, the applicant paid bribes which the migration agent took. The applicant was therefore complicit in attempted fraud. The present case is distinguishable.
In SZMGX vMinister for Immigration and Citizenship [2009] FCAFC 67, the appellant paid bribes to get into Australia and apply for a visa, but that did not establish fraud.
In SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158, the applicant allegedly agreed with the actions of the migration agent, but on appeal it was found that such a finding was not open.
SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 involved the submission of false information in the knowledge of its falsity. The present case is distinguishable.
In SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211, the applicant knowingly concealed details of her employment. The present case is distinguishable.
The applicant submits that he was not complicit in the actions of the migration agent. The Court accepts that submission, but the applicant knew of the type of visa being applied for from September 2012 and he did not notify the Tribunal of the mistake.
The applicant addresses the extent of an agents authority. Here, the delegate and Tribunal were entitled to assume that the migration agent was acting within authority, especially as the applicant appeared before the Tribunal and took no corrective action.
There is no evidence that the migration agent acted unlawfully or fraudulently.
The applicant had knowledge of what visa had been applied for before the Tribunal reached its decision and decided not to take remedial action. SZSJA is relevant.
The fact of the applicants not attending the Tribunal hearing in SZFDE is not relevant here.
The evidence of the applicant is accepted, but the question is whether the migration agent committed fraud on the applicant or the Tribunal.
The provision of an incorrect email address by the migration agent is not enough to establish fraud. It did not prevent the applicant participating in the proceedings.
The Tribunal sent the applicant a letter on 27 September 2012 requesting further information (CB pp.29-36). The fact that the applicant did not understand the letter does not establish a denial of natural justice.
The fact that the migration agent has left Australia does not establish that the migration agent has committed any offence.
The Grounds in the Amended Application
Ground 1 – The Court finds no fraud on the applicant or on the Tribunal.
Ground 2 – The Court finds that the applicant was not complicit in the actions of the migration agent in lodging the application, and that those actions of his migration agent are binding on him.
The applicant was aware of the visa applied for before he appeared before the Tribunal, and took no corrective action.
Ground 3 – There was no fraud that perverted the statutory process. There was a valid application for visa. The application submitted for the applicant was considered regularly.
The application for judicial review is dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 16 December 2014
2
15
3