Song (Migration)

This matter concerned an appeal by the applicant, Ms. Song, against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her Subclass 186 Employer Nomination (Permanent) visa application. The core of the dispute revolved around allegations of fraud in the visa application process, with Ms. Song claiming she was an innocent victim of a migration agent's fraudulent conduct.

The legal issues before the court were whether the applicant's visa application was invalidated by the alleged fraudulent conduct of a third party, and consequently, whether the Tribunal had jurisdiction to review the decision. A further issue was whether the Tribunal erred in finding that the provisions of Public Interest Criterion 4020 (PIC 4020) were not engaged, given the Tribunal's inability to identify false or misleading information provided in relation to the visa application.

The court considered the principles established in High Court and Full Federal Court decisions, particularly *Kaur v Minister for Immigration and Border Protection*, regarding the invalidation of visa applications due to third-party fraud. These principles establish that an application may be invalidated by fraud, but this depends critically on the applicant's role. The applicant must prove, to a high standard, that they were neither complicit in the fraud nor indifferent to the means used by the agent. The Tribunal found that it could not identify the specific false or misleading information that would engage PIC 4020, and importantly, it was unable to identify that the applicant was complicit in or indifferent to any fraud.

The Tribunal affirmed the delegate's decision, finding that PIC 4020 was not engaged as it could not identify false or misleading information. The Tribunal also found that the associated nomination was not approved. The court, therefore, affirmed the decision under review.