Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 1202
•31 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1202
File number: MLG 3304 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 31 July 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the applicants allege that their visa applications were invalid as a result of fraud – whether applicants have established fraud – whether applicants have established relationship between fraud and visa application – burden not discharged – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 65, 359A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Regulations 1994 (Cth), Sch 2 cll 187.233, 187.311
Cases cited: Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 792
Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73; [2014] FCAFC 40
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of last submissions: 2 September 2024 Date of hearing: 2 September 2024 Place: Melbourne Counsel for the applicants: Mr H Lewis accepting a pro bono referral Solicitor for the applicants: Lander & Rogers Counsel for the first respondent: Ms L Mills Solicitor for the first respondent: Sparke Helmore Lawyers Solicitor for the second respondent: Submitting appearance, save as to costs ORDERS
MLG 3304 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAVITTERJIT SINGH
First Applicant
PRABHJOT KAUR
Second Applicant
GAZLEEN KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
31 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 1 November 2018 and amended on 26 April 2024 be dismissed.
4.The first and second applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 1 November 2018 and amended on 26 April 2024, the applicants seek judicial review of a decision of the second respondent (Tribunal) made on 11 October 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa in the Direct Entry stream (visa) under s 65 of the Migration Act 1958 (Cth) (Act). The Minister opposes the application. The Tribunal entered a submitting appearance, save as to costs, and has not participated in the proceeding.
The ground of review raised by this application involves allegations of fraud against three individuals, none of whom were invited to comment on or were otherwise afforded procedural fairness in relation to these allegations. Given that an allegation of fraud is a serious matter, none of these individuals are identified by name, or organisation, in these reasons.
BACKGROUND
The first-named and primary applicant for the visa (primary applicant) is a citizen of India. The second applicant is his wife, who is also a citizen of India.
The applicants applied for the visa on 28 September 2016 (CB 1-14). In the application, the primary applicant nominated his occupation as “Cafe or Restaurant Manager” (CB 7).
The application for the visa was submitted by migration agent Ms AB of AB Migration (CB 5-6). On 28 September 2016, the (then) Department of Immigration and Border Protection confirmed receipt of the visa application (CB 15-19).
On 26 January 2017, the first and second applicants’ daughter was born (CB 22-24).
On 19 April 2017, a delegate of the Minister (delegate) notified Ms AB that the primary applicant’s sponsor, CAFE 33 CAIRNS PTY LTD (Cafe 33), had had their Regional Employer Nomination refused and that, as such, the primary applicant could not be granted the visa (CB 16-19). The delegate invited the primary applicant to pursue one of two options: (1) to withdraw the application, or (2) if the primary applicant chose not to respond to the letter within 28 days or withdraw the application, then the application would be refused. The refusal notification was sent by email to “xx@xx” (CB 16-19), being the email address provided by Ms AB for email communications from the delegate (CB 6).
On 18 May 2017, Ms AB emailed the delegate to advise that the primary applicant would like to “continue with the current application” and requested that the primary applicant’s daughter be added to the visa application as the third applicant (CB 26). On 19 May 2017, the delegate confirmed that the primary applicant’s daughter had been added to the application as the third applicant (CB 25).
On 25 May 2017, the delegate refused to grant the applicants the visa (CB 28-36). The delegate found that the primary applicant did not meet cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which, at relevant times, read:
(1)The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i)subparagraph 5.19(4)(h)(ii); or
(ii)subregulation 5.19(4) as in force before 1 July 2012; and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who was the nominator in the application for approval..
(3)The Minister has approved the nomination.
(4)The nomination has not subsequently been withdrawn.
…
Specifically, the delegate noted that the primary applicant did not meet cl 187.233(3) and therefore could not meet cl 187.233. The delegate found that, given the primary applicant did not meet cl 187.233, the second and third applicants were unable to meet the family member criterion contained in cl 187.311(a).
APPLICATION FOR MERITS REVIEW IN THE TRIBUNAL
The applicants filed an application for review of the delegate’s decision with the Tribunal on 8 June 2017 (CB 37-39). This application was lodged by Ms AB (CB 38).
On 9 June 2017, the Tribunal notified the applicants, via their migration agent Ms AB, that their application to the Tribunal had been received (CB 41-43).
On 24 October 2017, Mr Vikas Jain of Wickham Lawyers advised the Tribunal that he had commenced acting for the applicants in their matter, attaching an Appointment of Representative and Authorised Recipient form (CB 44-45).
On 24 October 2017, a representative of the Tribunal contacted Mr Jain to ascertain whether the Tribunal could correspond with him by email moving forward (CB 46). Mr Jain agreed to this request by return email (CB 47).
On 5 September 2018, the Tribunal invited the applicants, via email to Mr Jain, to attend a hearing on 25 September 2018 at 10:30am (CB 49-52).
On 14 September 2018, Mr Jain informed the Tribunal by return email that he no longer acted for the applicants in their matter and advised that “Mr Singh will be self-represented in this matter and all correspondence will go directly to him” (CB 53). This correspondence attached an Appointment of Representative and Authorised Recipient form dated 14 September 2018 which listed the primary applicant as the preferred point of contact for the Tribunal (CB 55).
The applicants did not attend the Tribunal hearing on 25 September 2018 (CB 59).
On 25 September 2018, the Tribunal sent the applicants an invitation to comment on or respond to information by 9 October 2018 (CB 56-58). The invitation identified the information, and its significance as follows (CB 57):
…
•On 25 September 2018 the Tribunal affirmed the Department’s decision to refuse the nomination by Café 33 Cairns Pty Ltd of an occupation, Café or Restaurant Manager 141111, identifying for the occupation Pavitterjit Singh.
The above information is relevant because one of the requirements for the grant of the Subclass 187 visas is that there is an approved nomination of an occupation in relation to Pavitterjit Singh. If the Tribunal relies on the above information it may find that you do not meet the requirements of r. 187.233 of Schedule 2 of the Regulations and that you do not therefore meet the requirements for an Employer Nomination (subclass 187) visa on the basis of the Direct Entry Stream. This would be a reason for affirming the decision under review.
…
The applicants did not respond to the invitation.
DECISION OF THE TRIBUNAL
On 10 October 2018, the Tribunal affirmed the delegate’s decision and produced a statement of decision and reasons (R).
After reciting the procedural background to the review application, including a summary of the delegate’s decision, the Tribunal identified the issue in the present case as whether the primary applicant was the subject of an approved nomination in relation to his Subclass 187 visa application (R [10]).
The Tribunal noted that it was a requirement of cl 187.233 that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry Stream, located in regional Australia (R [11]).
The Tribunal noted that the Tribunal had earlier affirmed the decision to refuse the nomination of Café 33 of the primary applicant for the position of café or restaurant manager (R [12]).
The Tribunal recorded that the primary applicant was notified, by way of a s 359A letter, that because the related nomination decision had been affirmed it did not appear that he met the criteria for the grant of the visa. The Tribunal noted the primary applicant was invited to comment or respond to this information in writing by 9 October 2018 or to ask for an extension of time, and that he did not respond to the invitation or request an extension of time to do so (R [13]-[14]).
The Tribunal was satisfied that it had taken all reasonable steps to provide the primary applicant with the opportunity to attend a hearing to give oral evidence and also to comment on or respond to adverse information regarding the nomination (R [15]).
The Tribunal found on the evidence that the primary applicant was not the subject of an approved nomination and therefore cl 187.233 was not met (R [16]-[17]).
It followed that the second and third applicants (as family members) were unable to satisfy cl 187.311 (R [18]-[19]).
The Tribunal affirmed the decision of the delegate.
JUDICIAL REVIEW
Background and ground of review
The applicants filed their application seeking judicial review of the Tribunal decision on 1 November 2018. The application was accompanied by an affidavit sworn on the same date by the primary applicant (Singh affidavit).
The matter was initially listed for final hearing on 20 May 2024. The matter was relisted to 2 September 2024 following a request made by the applicants for an adjournment to accommodate the availability of pro bono counsel. The Minister consented to the adjournment.
At hearing, the applicants, who were represented by Mr Lewis of counsel, relied on written submissions filed on 26 April 2024 and an amended application filed on the same date.
The Minister, who was represented by Ms Mills of counsel, relied on written submissions filed on 6 May 2024. The Minister also read the affidavit of Samantha Moxey affirmed 6 May 2024 (Moxey affidavit) which annexed a copy of the Application for Employer Nomination for a Permanent Appointment, a copy of which had been omitted from the court book (Employer Nomination). The Employer Nomination was made in respect of Café 33 and was dated 27 September 2016. Ms AB was identified as the authorised recipient and migration agent on the Employer Nomination. The primary applicant was identified as the nominated person.
The amended application identifies the following single ground of review:
1.The decision of the Tribunal dated 10 October 2018 was vitiated by the fraudulent conduct of the Applicant’s migration agent and ### Human Resources Management (###).
Particulars
a. The authority to proceed with the visa application was obtained through dishonest means in that:
i.###’s representatives made a false representation to the Applicant, being that regional certifying body approval was in place in respect of the associated employer nomination;
ii.There was in fact no such approval in place.
b. As a result of the fraudulent conduct there was no valid visa application.
c. This stultified the assessment and determination of the visa application in accordance with the processes set out in the Migration Act.
d. The Tribunal was therefore disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review.
e. The decision made by the Tribunal is properly regarded, in law, as no decision at all.
As noted earlier, the ground of review makes allegations of fraud. For this reason, the hearing of the review went beyond the making of submissions with the primary applicant reading and then being cross-examined on the Singh affidavit.
The evidence of the primary applicant
As far as the Singh affidavit is concerned, it deposes to events up to and following the Tribunal’s decision as follows:
On 8 July 2016, the primary applicant entered into an oral agreement with Ms CD, Director of CD Human Resources Management Pty Ltd (CD Management) and Ms EF, whereby they agreed to assist the primary applicant in obtaining the visa after informing him that they had found an Australian employer for him.[1] The primary applicant agreed to pay an amount of $49,175 as the cost of processing the visa. He and was led to believe that both Ms CD and Ms EF were registered migration agents, which was incorrect.[2] The primary applicant understood that his work had been sent to another person, being his former migration agent, Ms AB.
[1] Singh affidavit [1].
[2] Singh affidavit [2]-[3].
On 29 August 2016, the primary applicant met with Ms EF and was informed that his employer’s Regional Certifying Body (RCB) application was approved by the RCB. He was also informed that his visa application was being processed based upon this new information. The applicant has since found out that the RCB has no record of his employer’s application being approved or otherwise.[3]
[3] Singh affidavit [6].
The primary applicant was not informed by Café 33 when the nomination application was refused. When the Department sent a letter to Ms AB on 19 April 2017, she did not contact the primary applicant to obtain his instructions, and he did not receive a copy of this letter.[4] Had he been contacted by Ms AB, he would have made submissions to the Department.[5]
[4] Singh affidavit at [10].
[5] Singh affidavit at [11].
In around early May 2017, the primary applicant contacted Ms AB to ask her if his daughter could be added to the visa application. At no time during this conversation did Ms AB inform the primary applicant of the refusal of the nomination application or its implications.[6]
[6] Singh affidavit at [12].
Ms AB made submissions on the primary applicant’s behalf without his instructions or knowledge that the nomination application had already been refused.[7]
[7] Singh affidavit at [13].
On 5 September 2018, the primary applicant was sent an invitation to attend a scheduled hearing on 25 September 2018.
On 25 September 2018, the Tribunal offered the primary applicant the chance to comment on his application for review. He did not comment because he thought it would be best to speak to the Tribunal in person than in the written word. The primary applicant deeply regrets not informing the Tribunal that he was waiting until the hearing to make his comments.[8]
[8] Singh affidavit at [20]-[21].
The primary applicant did not attend the hearing because he became very anxious on the day and became frozen with fear that he would be deported as he did not believe that the hearing would go in his favour as he was tricked out of money by what he thought was a reputable organisation and was led to believe that he would receive his visa.[9]
[9] Singh affidavit at [25].
The primary applicant adopted his affidavit at hearing and was then cross-examined by the Minister’s counsel, Ms Mills.
The primary applicant did not resile from his evidence that Ms CD and Ms EF had both told him that they were registered migration agents. When it was put to him that when he was dealing with Ms AB, he knew that Ms CD and Ms EF were not migration agents he denied this and said that this awareness came later when his other agent “did the research”.
The primary applicant was questioned about his ability to recall the precise date on which he had met with Ms EF and was told about the approval of the RCB application. He told the Court that while he could not say now, six years on, that it was the right date, at the time that he prepared his affidavit, he had recalled the date and what he wrote at that time was correct. He told the Court that he did not have any written records of this meeting with Ms EF.
The primary applicant said that his employer for the purpose of the RCB application was Café 33, and that he had a representation made to him that his RCB application had been approved. He stated that he was provided the email of a lady who worked at the RCB to confirm this. The primary applicant said that he emailed her and that she also informed him that his RCB had been approved. The primary applicant acknowledged that he had not produced this email as evidence.
The primary applicant was challenged on this evidence which produced the following exchange:[10]
At the time, what did you understand an RCB application to mean?---No. I was just following them. They said, “Once the RCB is approved there is a good chance, like, you will – like, your visa will be approved”. So that’s what I know. And then they said – that’s what I told you, as well. Then they said, “If you are not sure, we can give you a email from the lady who worked in the RCB, and you can email her straight, and then she can make you sure, like, yes, you definitely got RCB”.
I see, Mr Singh. So you weren’t told that your employer’s RCB applicant had been approved; rather you were told that it would need to be approved. Is that correct?---I don’t understand your question. Sorry.
I will repeat my question. You just gave evidence that you were told once your RCB application would be approved there was a good chance that your visa application would be approved; is that a fair summary of what you just told the court?---Yes. That’s what they told me. Yes.
So you weren’t told that your RCB application had been approved. Rather, you were told, in effect, that it needed to be approved in order to get the visa; do you agree with that?---No – no. It – they – they told me – you’re confusing me, and now I’m confused. But they told me, like, it has been approved.
…
I suggest to you, Mr Singh, that when that person said to you “once your RCB has been approved” that meant that it had not yet been approved and was required to be approved?---No. They told me it’s approved. That’s what I’ve been telling you. But they told me, “If you want to make sure, like, everything is good, then you can just get in touch with the lady who work in RCB that it’s definitely 100 per cent, everything is fine”, you know. And I’m telling you I got that email; it’s not in affidavit but I got that email in my email, as well.
[10] T7 lines 7-26, 36-42.
The primary applicant said that he was told that an RCB approval was “sort of a visa” and that once it was approved, “it’s like you are going to get a visa”. The primary applicant eschewed any knowledge about the need for an Employer Nomination at that time. He didn’t know how it worked. He was “following them”.
The primary applicant acknowledged that he had received a bridging visa when he applied for the visa. This allowed him to stay in Australia while the visa application was being determined.
The primary applicant told the Court that he was on a student visa and still studying when he applied for the visa but that his study was almost finished. He was looking for the option to find a job because he was studying management and working at a restaurant. He said that he could have extended his student visa if he wanted, however, due to his qualification and experience he thought “why not find a job as well”.
The primary applicant confirmed that he had paid the amount of $49,175 to CD Management and explained that he mostly paid them with cash, sometimes $5,000, sometimes $10,000 although he did pay some in their account as well. The primary applicant agreed that he had not produced any documents to show any payments. When asked why, if he could extend his student visa, he would pay such a large amount to CD Management he replied that “they told me they would do everything, find a job, find an employer, apply for a visa” and I thought “why not if I can have a visa and have a good life here”.
The primary applicant confirmed that Ms AB had lodged his application for the visa and that he had authorised her to do so. It was put to the primary applicant that whether he had been told that his employer’s RCB application had been approved did not affect his decision to authorise Ms AB to submit the visa application. The primary applicant responded by saying “I have no knowledge about that”.
He told the Court that he was not told that Ms AB had made the Employer Nomination on 27 September 2016.
The primary applicant confirmed that his daughter had been born in January 2017. When asked to explain why he had waited three to four months to add his daughter to the visa application, he explained that this was because his wife was going to India, and they had to add the daughter as well to obtain a bridging visa for her. The primary applicant denied the suggestion that by May 2017 he knew that the Employer Nomination had not been approved and that his visa could not be approved.
The primary applicant denied the suggestion that he had given instructions to Ms AB to continue with the current application after the giving of the “natural justice letter” sent on 19 April 2017. He insisted that in their conversation in May 2017, he had just told her to add his daughter. He said that he found out a few months later because he tried to extend his Medicare card. At that time, they told him that his nomination visa had been rejected.
The primary applicant gave evidence that he had then approached another migration agent and “found out everything”. The primary applicant started emailing CD Management and Ms AB. When he asked Ms AB why his visa had been refused, Ms AB and CD Management stopped replying to him or responded by referring his query to the other party.
When it was suggested to the primary applicant that this evidence was not true and that instead, Ms AB had lodged his application for review with the Tribunal upon his instructions and authority, the primary applicant said that Ms AB had lodged this application without his knowledge. This was part of the information he found out when he went to extend his Medicare.
Despite recording in his affidavit that Ms AB had informed him by email that the delegate refused the visa on 25 May 2017, the primary applicant said he had no memory now of what the email had said, that Ms AB had not sent him the delegate decision and that he was not sure now about the date on which Ms AB had told him about the refusal, only that it was “later on”.
The primary applicant said that he had then engaged a new migration agent to lodge the application with the Tribunal, even though Ms AB had already done so. He did so despite now knowing that his employer did not have the approved nomination because he needed to fight and pursue the small chance and because his former representatives had not done anything properly.
The primary applicant confirmed that he had not attended the Tribunal hearing on 25 September 2018.
The primary applicant was asked about his evidence in the Singh affidavit that he had not responded to the invitation to comment from the Tribunal because he thought it would be best to speak to the Tribunal in person. The primary applicant acknowledged that at the time he received the invitation he had already failed to appear at the hearing. He agreed that he had not asked for another hearing. He also agreed that at the time he received the invitation to comment he had no other opportunity to speak to the Tribunal in person rather than in the written word.
It was suggested to the primary applicant that his failure to comment was not because he was waiting for an opportunity to speak to the Tribunal in person. The primary applicant provided the following response:[11]
No. I just – you know, when you go by yourself you don’t know what to say, how to defend yourself, and that’s why I thought I will find somebody to go with me. And even if I go by myself, I thought, “Okay. I will defend myself”. But I was scared then. And that’s why I didn’t, you know, defend myself at all.
[11] T20, lines 22-26.
The primary applicant responded with “I’m not sure” when it was put to him that he never told the Tribunal that he had previously been told by any migration agent that his employer’s nomination had already been approved.
Applicants’ submissions
The applicants’ pro bono counsel, Mr Lewis, told the Court that his clients’ case would rise or fall upon the legal question answered in Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 and the statements of principle recorded by the Full Court at [48] and [105] of the decision.
The applicants submitted that the visa application was made without the primary applicant’s authority, as the application was predicated on fraudulent representations made by CD Management and Ms AB.
The applicants submitted that the evidence in the case demonstrated that:
·CD Management’s director and representative made a representation to the primary applicant that a RCB approval was in place in respect of the associated employer nomination.
·This was a false and fraudulent representation, as no such approval was ever in place.
·This was a central aspect of the visa application given that an RCB application was an application that was required to be approved for regulation 5.19(4)(h)(ii) to be satisfied at the time of the decision on the nomination application.
·CD Management and Ms AB’s authority to proceed with the application was based upon this false representation.
It followed that the visa application was made on a fraudulent basis and without authority and was an invalid application.
The applicants submitted that the fraud affected the processes by which the visa application was to be considered and, as was the case in Maharjan, there was an imperative obligation on the Tribunal not to consider a visa application which was not a valid application.
As far as it might be suggested that what occurred was the result of a mistake on the part of the representors, rather than fraud, the applicants submitted that the timeline suggested it was the latter. This was because, on the primary applicant’s evidence, he was told on 29 August 2016 that the RCB application had been approved and it was then not until 27 September 2016 and 28 September 2016 that the Employer Nomination application and visa application respectively, were lodged. This supported an inference that it was patently false information that was provided to the primary applicant in August, because the visa application wasn’t yet on foot.
The applicants submitted that here, if the evidence of the primary applicant about the payments made to CD Management was accepted, it was open for the Court to find that there was a significant financial motivation for CD Management to make a false representation to the primary applicant.
The applicants submitted that as far as it was helpful to argue by analogy, the decision of Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 provided a useful point of comparison because in that case, there was an associated skills assessment which needed to be approved for the visa to be granted. Here, there was a requirement that a RCB application be approved at the time of the visa application decision. In Gill there had been no such assessment and, in this case, the RCB application had not been approved. The applicants did however acknowledge that the decision in Gill turned ultimately on the issue of whether there had been collusion by the applicant.
The applicants submitted that as far as it was suggested that the primary applicant had been indifferent to or implicit in the fraud, his evidence established that this wasn’t the case. The Court was invited to find that the primary applicant was an innocent applicant, seeking to obtain the visa by legal means. It was submitted that the primary applicant’s evidence was replete with statements to the effect that he had not done anything wrong and had simply asked these people to assist him with the visa and it hadn’t worked out. It was not put to him that it was anything to do with him, or that he was involved in any way.
The Minister’s submissions
The Minister submitted that the applicant had failed to discharge what was described as a “heavy burden” to prove an alleged fraud by a third party and to set aside an otherwise blameless decision of the Tribunal for this reason (referring to SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189, [38] and Maharjan, [102]).
The Minister submitted that the applicants had failed to discharge their onus of demonstrating that the visa application was invalid for principally two reasons.
First, even on the applicants’ evidence, the alleged fraud was not established. In making this submission, the Minister invited the Court to place limited weight on the evidence of the primary applicant given that aspects of the Singh affidavit purported to set out conclusions or opinions without identifying the basis of these conclusions and opinions.
The Minister submitted that the position had not been improved by the answers given by the primary applicant in cross-examination. In particular, the Minister’s counsel, Ms Mills, was critical of the inability of the primary applicant to clearly tell the Court what was actually said by the representatives of CD Management and characterised his responses as inconsistent. The submission was made that the primary applicant could not tell the Court whether he was told that the RCB application had been approved, whether it would be approved, or whether it was required to be approved.
The Minister submitted that it was open to the Court to find either that the representation had not been made, or the primary applicant was confused as to what the representation was and what it meant. This last conclusion was said to follow from the inability of the primary applicant to explain to the Court what he understood an RCB approval to mean and his failure to demonstrate an understanding of the difference between an RCB approval and an employer approval.
The Minister made the further submission that even if the Court was to find that the representation was made by the representatives of CD Management, there was no evidence connecting this representation to Ms AB. In particular, Ms AB was employed by a different organisation to CD Management, the primary applicant conceded that there was no discussion between himself and Ms AB about any RCB approval and there was no corroborative evidence to demonstrate that the primary applicant paid the sum alleged to procure the visa application or that any payment was made to Ms AB, or the organisation that employed her.
The second point identified by the Minister was that the primary applicant had not discharged his onus of satisfying the Court that he was neither indifferent to nor complicit in the alleged fraud. The Minister submitted that the inability of the primary applicant to articulate what the representation meant and why it was that the making of the representation led him to make the visa application, supported this conclusion. The Minister submitted that any representation, if it did occur, did not lead to the primary applicant making the visa application. It would have been made in any event.
The Minister submitted that the Court should find that the primary applicant was first notified about the refusal of the Employer Nomination on 19 April 2017 when the natural justice letter was sent to Ms AB. The failure of the primary applicant to withdraw the application at this stage was described as being consistent with a finding that he was indifferent to the alleged fraud.
The Minister described the primary applicant’s evidence as to when he became aware of the fact that the Employer Nomination had been refused as “very confused and inconsistent”. This evidence, along with the primary applicant’s conduct before the Tribunal after discovering the alleged fraud, was said to be inconsistent with a finding that he was not indifferent to the alleged fraud.
The Minister submitted that the Court should conclude that there was no evidence that but for the alleged representation the primary applicant would not have given the authority to submit the visa application. The Minister submitted that this was inherently unlikely, given that when the visa application was submitted, the Employer Nomination had been submitted but not yet determined and so it was possible that an RCB application could be approved and the Employer Nomination Application could be approved such that the visa may have been granted.
The Minister submitted that the primary applicant commenced and participated in the review before the Tribunal with the knowledge that the Employer Nomination had been refused and there was no fraud “on” the Tribunal.
RELEVANT LEGISLATION AND PRINCIPLES
Pursuant to s 47 of the Act, the Minister is required to consider a valid application for a visa and is not to consider an invalid application for a visa. The section provides:
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
Fraud on the part of a migration agent in the visa application process can, in some circumstances, result in a visa application being invalid. As the Full Court of the Federal Court explained in Maharjan at [105]:
…The concept of a valid visa application, on the current state of authority of this Court, does not include an application made without the actual or otherwise authority of the named visa applicant, where the visa applicant does not have capacity to give authority (see Kim) and does not include an application based on fraudulent documents where the visa applicant is neither complicit in the fraud nor indifferent to the use of unlawful or dishonest means (see Singh and Gill).
The principles in relation to fraud in the visa application process are now well-established. They were helpfully summarised by Judge Ladhams in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 792 at [27] as follows:
(a) Fraud in an administrative law context requires dishonest conduct. Acting on ‘bad or negligent advice or some other mishap’ will not suffice: SZFDE at [53].
(b) A visa application prepared by an agent that includes fraudulent information will not be invalid if the applicant colluded in the fraud or was indifferent as to whether the agent used dishonest or unlawful means to obtain the visa: Gill at [50]; Maharjan at [53]; Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53 (Kaur) at [56], [151]. ‘Indifference’ does not entail a situation where a person has ‘retained an agent to apply for a visa and having paid the appropriate fees to that agent, leaves the migration agent to perform his or her work’: Gill at [42]. Rather, it entails ‘reckless indifference’, which requires a state of mind that is close to intention or wilful blindness as to the truth of what is being said or done, and which should be distinguished from states of mind such as helplessness, fear of authority, naivety, ignorance, want of due care and dependence or reliance: Kaur at [136]-[140].
(c) In an administrative law context, the fraud must have the effect of disabling a person from performing their statutory functions or stultifying the operation of the legislative scheme or the relevant statutory decision-making process: SZFDE at [49], [51]; Kaur at [57]; Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 (Katragadda) at [45]; Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141 (Singh) at [52].
(d) Whether a visa application is valid is a jurisdictional fact that the Court must determine for itself: Maharjan at [35], [44], [122]; Kaur at [56].
(e) The applicant bears the onus of establishing that he has been the innocent victim of fraud: Maharjan at [78]; Kaur at [56]; Katragadda at [59].
(f) The Court may draw inferences from the available materials about the motives of a person against whom an allegation of fraud is made: SZFDE at [38].
APPLICATION OF THESE PRINCIPLES IN THE PRESENT CASE
Did any of the individuals identified by the primary applicant engage in fraud?
The fraud alleged by the applicants is particularised in the amended application as involving the making of a false representation to the primary applicant that a RCB approval was in place in respect of the associated employer nomination when in fact no such approval was in place.
The evidence of the primary applicant is that this representation was communicated to him on 29 August 2016 when he met with Ms EF. According to the primary applicant, he was also told that his visa application was being processed based upon this new information.
I note at the outset that there is a genuine question as to whether the primary applicant has adduced sufficient material to persuade the Court, on the balance of probabilities, that he had any dealings with either Ms CD, Ms EF or CD Management. The primary applicant provided no detail, save for the reference to the dates in July and August 2016, about his alleged dealings with these individuals and firm. For example, he gave no evidence about where any meetings took place, whether and what information (apart from that the subject of the alleged fraud) had been communicated and/or collected, and whether he had signed any documents. Importantly in my view, the primary applicant produced no documentation to corroborate his claim to have paid CD Management the very large sum of $49,175 to procure their services. In circumstances where at least part of this payment was said to have occurred by way of bank transfer, such an omission casts doubt on the credibility of the primary applicant’s claims.
The Minister’s case however did not involve a challenge to the applicants’ claims at this threshold level but was instead concerned with whether the primary applicant had established that the alleged fraudulent representation had been made and/or whether the primary applicant had understood its effect and in particular, its intersection with the visa application process and the primary applicant’s eligibility for the visa.
As noted above, the Minister characterised the primary applicant’s evidence on this topic – especially as emerged during cross-examination – as inconsistent and confused. Having reviewed the transcript of evidence, including that which is reproduced at [48] above, I am not persuaded that this characterisation accurately reflects the way the primary applicant gave this evidence. It appears instead that the primary applicant, took two things from the information conveyed to him by Ms EF. The first being that he was told that the RCB application in respect of his proposed employer had been approved and the second being that the RCB approval was akin to a visa and determinative of, or at least important to, the success of the ultimate visa application.
While I accept the submission of the Minister that the primary applicant was not able to explain how the RCB application operated within the scheme of the visa, including its relationship to the Employer Nomination, this does not detract from the finality of the message communicated, being that there was a proper basis for the primary applicant (and his family members) to proceed with the visa application process based on their being an RCB approval in place. It is not in contest that this representation was, at the time it was communicated, false.
That however is not the end of the matter. The Minister submitted that even if the Court was to find that CD Management and/or those who represented this entity made the fraudulent representation, the applicants have not established a case on the evidence that any such representation “carried through” to the making of the visa application.
It is not in dispute that the visa application was lodged on the primary applicant and his wife’s behalf on 28 September 2016 by Ms AB. The primary applicant’s evidence was that he authorised Ms AB to do so and I understand him to make the submission that such authorisation was invalid because it was affected by the fraudulent representation.
However, I am not persuaded that there is evidence before the Court that permits a finding about the nature of the authorisation that was provided by the primary applicant to Ms AB and/or that independently of any authorisation, Ms AB was a party to any fraudulent representation that might have been communicated by CD Management to the primary applicant.
The primary applicant produced no evidence about the circumstances in which he came to instruct Ms AB, including the dates and circumstances of any meeting, any information that he provided and whether he was asked to sign and/or approve any documents. He provided no information about whether Ms AB communicated anything to him about the visa application process. Furthermore, there was no evidence put before the Court to support a finding that there was any relationship between Ms AB and CD Management and/or that Ms AB stood to benefit from any payment made by the primary applicant to CD Management.
Instead, the evidence before the Court – including that contained in the court book – is that Ms AB recorded her name and contact details on the visa application form and identified herself as the person that had completed the form and had been appointed to act as authorised recipient (CB 5). Ms AB identified herself as a migration agent and the primary applicant has not suggested in this proceeding that she did not have this status as relevant times.
In Gill at [41], the Full Court acknowledged (to the benefit of the appellant) that a person in the position of Mr Gill would be entitled to expect that a registered migration agent to whom he paid the appropriate fee would perform his or her duties as a migration agent in accordance with the Act and with the Code of Conduct contained in Sch 2 to the Migration Agents Regulations.
In this case, there is no evidence that links Ms AB to the fraud alleged against CD Management, and no suggestion that Ms AB was not a registered migration agent. Furthermore, Ms AB has not sought to conceal her involvement in the visa application process or included information on the face of the application document that is said to be false or misleading; for example, the visa application correctly recorded the Transaction Reference Number for the Employer Nomination also lodged by Ms AB (refer CB 1 and annexure SJM-1 to the Moxey affidavit). I consider in these circumstances that the Court is entitled to evaluate her relationship to the visa application process with the same lens that was applied in Gill and to find that the visa application was prepared consistently with Ms AB’s professional and ethical obligations.
Did the fraud stultify a process under the Migration Act?
Having regard to the findings recorded above, I am not satisfied that the visa application that was lodged on the applicants’ behalf by Ms AB was invalid because it was procured by fraud. I am not satisfied that Ms AB engaged in any fraud when she prepared and lodged the visa application. Neither am I satisfied that any fraud engaged in by CD Management carried across to the making of the visa application. While the primary applicant gave a coherent account of the representation made by Ms EF, he was non-committal when it came to describing how the RCB representation had affected his decision to authorise Ms AB to submit the visa application, responding that he “ha[d] no knowledge about that”. It is also the case, that the timing of events meant that the fate of the Employer Nomination or the visa application was not linked, at the time that they were respectively made, inextricably or inevitably to the fate of the RCB application.
For the avoidance of doubt, I am not satisfied that any other process under the Act was affected by fraud. This is because I accept the submission of the Minister that the primary applicant’s evidence about when he came to understand that the Employer Nomination and the RCB application had been refused, was unsatisfactory. The primary applicant prevaricated in his response to when he came to know about the adverse delegate’s decision and I consider his original response, which placed this at or around the time of the notification letter, to be a closer approximation of the truth. I also consider that the primary applicant’s evidence concerning his decision not to attend the Tribunal hearing lacked credibility given that he simultaneously claimed to be aggrieved about the conduct of his former representatives and wanted to “fight it”.
The Minister submitted that the primary applicant commenced and participated in the review before the Tribunal with the knowledge that the Employer Nomination had been refused and there was no fraud “on” the Tribunal. I accept this submission.
ORDERS
The applicants have failed to establish that the decision of the Tribunal was vitiated by fraudulent conduct and therefore have not established jurisdictional error. It follows that orders will be made to dismiss the application.
I will further order that the first and second applicant pay the costs of the Minister in accordance with the scale set out in Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 31 July 2025
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