SP Overseas Education Pty Ltd v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 624
•6 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SP Overseas Education Pty Ltd v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 624
File number(s): SYG 1363 of 2020
SYG 1764 of 2021Judgment of: JUDGE ZIPSER Date of judgment: 6 May 2025 Catchwords: MIGRATION – judicial review – agent failed to respond within requested time to request for information by Tribunal as a result of which Tribunal made decision without taking further action to obtain information – whether agent’s omission or conduct involved fraud, dishonesty or recklessness – onus on applicant to prove fraud – whether Tribunal’s procedural decision to make decision on the review without taking further action to obtain information was legally unreasonable Legislation: Migration Act 1958 (Cth) ss 65, 359, 359C, 360
Migration Regulations 1994 (Cth) reg 5.19, cl 186.223 of Schedule 2
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Minister for Home Affairs v DUA16 [2019] FCAFC 221; 273 FCR 213
Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67]
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501
Sino-Aus Motor Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 686
SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; 222 FCR 73
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 9 April 2025 Place: Parramatta In SYG 1363 of 2020 Solicitor for the Applicant: Mr C Guan (Paul Guan & Associates) Solicitor for the Respondents: Mr M Vethecan (Clayton Utz) In SYG 1764 of 2021 Solicitor for the Applicants: Mr C Guan (Paul Guan & Associates) Solicitor for the Respondents: Mr M Vethecan (Clayton Utz) ORDERS
SYG 1363 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SP OVERSEAS EDUCATION PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
6 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
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).
ORDERS
SYG 1764 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NARACHAI CHAROENSUK
First Applicant
NUCHAREE SITTHIWACHMETHEE
Second Applicant
SUPAKRIT CHAROENSUK
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
6 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
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 ZIPSER
INTRODUCTION
Before the Court are two applications for judicial review, pursuant to s 476 of the Migration Act 1958 (Act), of decisions of the Administrative Appeals Tribunal (Tribunal). One application, lodged by SP Overseas Education Pty Ltd (Employer) (Employer Proceeding), sought review of a decision of the Tribunal dated 1 May 2020 which affirmed a decision of a delegate of the first respondent who rejected the Employer’s application for approval of the nomination of a position for a subclass 186 Employer Nomination visa. The other application, lodged by Narachai Charoensuk (Visa Applicant) and members of his family unit (Visa Applicant Proceeding), sought review of a decision of the Tribunal dated 25 August 2021 which affirmed a decision of a delegate of the first respondent who refused to grant the Visa Applicant and members of his family unit Employer Nomination (Permanent) (Class EN) subclass 186 visas.
For the reasons that follow, the two applications are dismissed.
LEGISLATION
Regulation 5.19 of the Migration Regulations 1994 (Cth) (Regulations), titled “Approval of nominated positions (employer nomination)” at the time of the Tribunal’s decision, sets out requirements an employer must satisfy to obtain the Minister’s approval of the nomination of a visa applicant in respect of a position offered by the employer. The employer must satisfy all the requirements. At the time of the Tribunal’s decision concerning the Employer, one of the requirements in reg 5.19(3)(d) was:
(d) for a person to whom subparagraph (c)(i) applies:
(i) the person will be employed on a full-time basis in the position for at least 2 years; and
(ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment;
Part 186 of Schedule 2 to the Regulations contains the criteria for a subclass 186 Employer Nomination visa. At the time of the Tribunal’s decision concerning the Visa Applicant, cl 186.223 of Schedule 2 provided, as two time of decision criteria for the visa:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Temporary Residence Transition stream; and
(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination.
FACTUAL BACKGROUND
On 27 April 2017, the Employer applied, pursuant to reg 5.19 of the Regulations, for approval of a nomination of the Visa Applicant for a position in the nominated occupation of “Customer Service Manager”. According to an ASIC search among the materials in evidence before the Court, at all relevant times the sole director of the Employer was Nucharee Sitthiwachmethee, the Visa Applicant’s wife. Although not relevant to issues which arise in either judicial review application, a number of documents provided by the Employer and Visa Applicant to the Department and Tribunal recorded that the director of the Employer was the Visa Applicant.
On 27 April 2017, the Visa Applicant applied for a subclass 186 Employer Nomination visa in the Temporary Residence Transition stream. The Visa Applicant’s wife and child were secondary applicants. With reference to cl 186.223(1) (see paragraph 4 above), the visa application indicated that the position to which the application related was the position nominated in the application for approval referred to in the above paragraph.
On 11 April 2018, a delegate of the first respondent refused to approve the Employer’s application for approval of a nomination on the basis that the Employer did not satisfy regs 5.19(3)(c) and 5.19(3)(d)(i) of the Regulations.
On 19 April 2018, the Employer applied to the Tribunal for review of the delegate’s decision.
On 21 May 2018, a delegate of the first respondent refused to grant the Visa Applicant the visa on the basis that he did not satisfy cl 186.223(2) of Schedule 2.
On 2 June 2018, the Visa Applicant applied to the Tribunal for review of the delegate’s decision.
On 30 March 2020, the Tribunal sent a letter to the Employer under s 359 of the Act requesting, by 14 April 2020, updated and current information with respect to the requirements in reg 5.19 of the Regulations (30 March 2020 Letter). The Tribunal sent the letter by email to the Employer’s authorised recipient who was also a registered migration agent (Agent). The Applicant did not, either directly or by the Agent, respond to the 30 March 2020 Letter by 1 May 2020.
On 1 May 2020, the Tribunal made a decision affirming the delegate’s decision refusing to approve the Employer’s application for approval of a nomination. The Tribunal emailed the decision to the Agent on 4 May 2020.
On 26 March 2021, the Tribunal sent a letter to the Visa Applicant inviting him to comment on the fact that on 1 May 2020 the Tribunal refused to approve the Employer’s application for approval of a nomination. The letter explained that this information was relevant “because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination”.
On 8 April 2021, the Agent responded to the letter dated 26 March 2021.
On 23 April 2021, the Visa Applicant attended a hearing before the Tribunal in respect of his visa application.
On 25 August 2021, the Tribunal made a decision affirming the delegate’s decision refusing to grant the Visa Applicant and members of the family unit subclass 186 visas on the basis that the Visa Applicant did not satisfy cl 186.223(2) of Schedule 2.
TRIBUNAL’S DECISIONS
Decision dated 1 May 2020 concerning Employer
The delegate refused the Employer’s application for approval on the basis that the Employer did not satisfy reg 5.19(3)(c) and (d)(i) of the Regulations. The delegate considered there was insufficient information before the delegate to satisfy reg 5.19(3)(c) and (d)(i).
On 30 March 2020, the Tribunal sent the 30 March 2020 Letter to the Employer under s 359 of the Act, requesting by 14 April 2020 updated and current information with respect to the requirements in reg 5.19 of the Regulations, but the Employer did not respond to the letter by 1 May 2020. The Tribunal noted in its decision dated 1 May 2020 at [5] that, since the Employer did not provide the requested information by 14 April 2020, pursuant to ss 359C and 360(3) of the Act, the Employer was not entitled to appear at a hearing before the Tribunal and the Tribunal could make a decision without taking further steps to obtain the requested information.
The Tribunal reviewed the financial information provided by the Employer to the Department concerning the Employer’s business. The Tribunal at [12] was “unable to be satisfied that, at the time of its decision, the [Employer] will employ the nominee on a full-time basis in the position for at least two years”. It followed that the requirement in reg 5.19(3)(d) was not met.
On 4 May 2020, the Tribunal emailed its decision to the Agent. Later that day, the Employer’s director sent an email to the Tribunal which attached documents requested by the Tribunal in the 30 March 2020 Letter. The director explained in a covering email that she sent the documents to the Agent before 14 April 2020 but, due to an error, the documents were not provided to the Tribunal by 14 April 2020.
On 21 May 2020, the Tribunal sent an email to the Employer which attached a letter stating that the Tribunal member had “decided not to reopen this case”.
Decision dated 25 August 2021 concerning Visa Applicant
The Visa Applicant had applied for a subclass 186 visa in the Temporary Residence Transition stream to work in the nominated position of Customer Service Manager. A criterion for the grant of the visa in cl 186.223(2) of Schedule 2 was that “the Minister has approved the nomination”. The Tribunal, after noting that on 1 May 2020 the Tribunal affirmed a decision of a delegate of the first respondent refusing to approve the nomination of the position for the Visa Applicant made by the Employer, found at [28] that “the position specified in the … visa application is not the subject of an approved nomination” and accordingly “the requirements of cl 186.223 are not met”. It followed that the Tribunal must affirm the first respondent’s decision not to grant the visas.
PROCEEDINGS IN THIS COURT
On 4 June 2020, the Employer filed an application in this Court seeking judicial review of the Tribunal’s decision concerning the Employer dated 1 May 2020, and thereby commenced the Employer Proceeding. On 3 March 2025, the Employer filed an amended application. The amended application contained the following grounds and particulars (as written):
1.The Tribunal’s decision was vitiated by the fraud of the Applicant’s migration agent, which subverted and stultified the Tribunal’s statutory review function.
Particulars
(a) On 30 March 2020, the Tribunal wrote to the Applicant requesting additional information, with a deadline of 14 April 2020 for submissions.
(b)The Applicant compiled all requested documents and provided them to his registered migration agent on 4 April 2020 for lodgment with the Tribunal.
(c)The Applicant repeatedly reminded the agent to file the material, including an urgent reminder on 13 April 2020, and received assurances that the submission would be made on time.
(d)The agent failed to lodge the documents by the due date, contrary to the Applicant’s instructions, thereby breaching the agent’s professional duties. This dishonest conduct was unbeknownst to the Applicant until after the Tribunal’s decision.
(e)The Tribunal, unaware of the agent’s deception, proceeded to determine the review of 1 May 2020 without the benefit of the Applicant’s additional evidence. As a result, the Applicant was deprived of the opportunity to present critical evidence and arguments in support of the nomination, contrary to the intent of s 360 of the Migration Act (which provides applicants an opportunity to respond at hearing).
(f)The migration agent’s fraudulent conduct directly compromised the Tribunal’s process, disabling the Tribunal from duly discharging its statutory review function.
(g)In effect, no valid decision was made by the Tribunal because its process was constructively undermined by fraud, leaving the Tribunal’s jurisdiction “unexercised” in law.
2.The Tribunal acted unreasonably in the conduct of the review, such that no reasonable decision-maker would have proceeded in that manner. This Wednesbury-level unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) amounted to a constructive failure to exercise jurisdiction.
In the alternative,
The Tribunal denied procedural fairness to the Applicant by failing to adhere to its statutory duties under the Migration Act. (See, e.g., Minister for Immigration and Citizenship v Li [2013] HCA 18, where the High Court held that a decision lacking an evident justification may be set aside for unreasonableness).
Particulars
(a)The Tribunal failed to take any reasonable step to inquire about or obtain the missing documents when none were received by 14 April 2020. For example, the Tribunal did not contact the Applicant or the agent (by phone or email) to alert them to the omission. Given the importance of the requested information, a failure to inquire in these circumstances was unreasonable.
(b)The Tribunal did not notify the applicant that it intended to decide the matter adversely due to the absence of the new financial information.
(c)The Applicant was never informed that the missing documents would be decisive to the outcome.
(d)There is no indication that the Tribunal gave proper consideration to the evidence that was before it or that it weighed the nomination criteria against the information available (e.g. the Applicant’s previously submitted financial records).
On 21 September 2021, the Visa Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision concerning the Visa Applicant dated 25 August 2021, and thereby commenced the Visa Applicant Proceeding. The application contained the following grounds and particulars (as written):
1. The tribunal will have no evidence for its decision.
Particulars
(a)The tribunal affirmed the Department’s decision to refuse their visa application was because
“The Tribunal finds that the position is not the subject of a nomination approved by the Minister as required by cl. 186.223.”
(b)However, their employer has appealed the tribunal’s decision to affirm the Department’s nomination refusal to the court.
(c) In the case that the court has found any jurisdictional error(s) in its making of the decision, and the differently constituted tribunal may find that the position is the subject of a nomination approved by the Minister as required by cl. 186.223.
The solicitor for the applicant in each proceeding was Paul Chaofeng Guan of Paul Guan & Associates.
Following a period of inactivity, on 17 February 2025 the parties were notified by the registry of the Court that the two proceedings were listed for hearing on 9 April 2025.
On 3 March 2025, Mr Guan filed a written submission for the applicants in the Visa Applicant Proceeding. On 26 March 2025, the first respondent filed a written submission in the proceeding.
On 11 March 2025, Mr Guan filed a written submission for the applicant in the Employer Proceeding. On 25 March 2025, the first respondent filed a written submission in the proceeding. On 28 March 2025, Mr Guan filed a more comprehensive submission (28 March Submission).
Hearing on 9 April 2025
At the hearing in this Court on 9 April 2025, Mr Guan appeared for the applicants, and Marcus Vethecan of Clayton Utz appeared for the first respondent, in both proceedings.
In each proceeding, Mr Vethecan tendered a Court Book which contained the Tribunal’s decision and documents before the Tribunal.
Mr Guan, in connection with his attempt to prove fraud by the Agent which stultified the Tribunal’s statutory function, read three affidavits of Nucharee Sitthiwachmethee, the Employer’s director and Visa Applicant’s wife, sworn on 23 April 2021, 10 March 2025 and 4 April 2025.
It was agreed that the Employer Proceeding and the Visa Applicant Proceeding were to be heard concurrently, and evidence tendered in one proceeding was evidence in the other.
Mr Guan and Mr Vethecan then made oral submissions which supplemented their written submissions.
CONSIDERATION IN EMPLOYER PROCEEDING
Introduction
If there is a jurisdictional error in the Tribunal’s decision dated 1 May 2020 concerning the Employer, it probably follows there is a jurisdictional error in the Tribunal’s decision dated 25 August 2021 concerning the Visa Applicant. Conversely, if there is no jurisdictional error in the Tribunal’s decision dated 1 May 2020 concerning the Employer, it follows (and Mr Guan accepted in a written submission) there is no jurisdictional error in the Tribunal’s decision dated 25 August 2021 concerning the Visa Applicant. It follows that it is appropriate to firstly consider whether there is a jurisdictional error in the Tribunal’s decision dated 1 May 2020 concerning the Employer.
Ground 1 in amended application
It is asserted in the opening sentence of ground 1 that the Tribunal’s decision was “vitiated by the fraud of the applicant’s migration agent which subverted and stultified the Tribunal’s statutory function”.
The following paragraphs consider:
(a)the evidence before the Court relevant to ground 1;
(b)principles in case law concerning the circumstances in which fraud by an applicant’s agent may cause there to be a jurisdictional error in a decision of the Tribunal; and
(c)application of the principles to the evidence before the Court.
Evidence before the Court relevant to ground 1
Much of the evidence is contained in annexures to Ms Sitthiwachmethee’s affidavit dated 10 March 2025.
It appears that on 30 or 31 March 2020 the Agent, having received from the Tribunal the 30 March 2020 Letter, forwarded the letter to Ms Sitthiwachmethee.
On the evening of 31 March 2020, the Agent sent an email to Ms Sitthiwachmethee which stated:
Hi Khun Nuch,
AAT already takes a look at case SP.
I understand that for the case of Moss, he/she may lack some of the required qualification back then.
We recommend that he/she should submit those documents anyway. At least he/she will be able to buy times with AAT.
1.P’ Moss should apply for IELTS test.
2.The Company’s sales as of June 2019 must be more than $1,000,000
For the detail of other documents, we will notify you later of what document we will want you to submit.
Regards
…
On the evening of 31 March 2020, Ms Sitthiwachmethee replied:
Thank you very much. Nuch will have to submit all the documents he writes down in April 14th. I will try my best. If I have any question I will notify you immediately. Thank you. Thank you for taking care of me. Please take care of your health as well.
Nuch
On 1 April 2020, Ms Sitthiwachmethee emailed a bundle of financial documents concerning the Employer to the Agent.
On 13 April 2020, Ms Sitthiwachmethee sent an email to the Agent reminding the Agent that 14 April 2020 “is the deadline … where AAT requests an additional document of 10 pages” and asked the Agent whether he would provide the documents to the Tribunal.
On 14 April 2020, the Agent sent a reply email to Ms Sitthiwachmethee stating “I will submit some of those documents today”.
The Agent did not send any documents to the Tribunal, or an email to the Tribunal concerning the issue, on 14 April 2020 or at any time prior to the date of the Tribunal’s decision concerning the Employer on 1 May 2020.
On 4 May 2020, the Tribunal emailed its decision concerning the Employer to the Agent. According to a copy of the email in the Court Book, the email was sent at 1:12 pm. At 2:32 pm on the same day, the Agent sent an email to the Tribunal in the Visa Applicant’s matter which stated:
Please find the supporting document for the above case as attached.
The email attached a large bundle of financial documents concerning the Employer.
On 26 October 2020, the Agent wrote in a letter “to whom it may concern”:
We do accept that we have been negligent in or part in dealing with the above case. We failed to provide the documents to the AAT by the prescribed date, 14 April 2020.
On 5 March 2021, the Agent wrote in an email to the Visa Applicant:
So that I don’t forget to submit the documents again, like I did in the past.
On 26 March 2021, the Tribunal sent a letter to the Visa Applicant inviting him to comment on the fact that on 1 May 2020 the Tribunal refused to approve the Employer’s application for approval of a nomination. The letter explained that this information was relevant “because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination”.
On 8 April 2021, the Agent responded to the letter dated 26 March 2021. The Agent wrote:
We do understand that the nominator (SP OVERSEAS EDUCATION PTY LTD) application was refused at the AAT on 01 May 2020. That was due to our negligence as the representative; registered migration agent.
On 3 March 2020, the AAT has requested more information for the AAT case number 1811186. We have been given the time until 14 April 2020 to respond or provide the information. During that time, the nominator has provided the required documents to us. However, we as the representative has failed to submit that information to the AAT before 14 April 2020.
It was our fault. It was our negligence on our part as the representative and registered migration agent.
It was never the nominator fault. As they have provided everything that the AAT asked for. It was lost in transmission in our office and felt terribly wrong for that.
The AAT has affirmed the decision on 01 May 2020, but we received the email on 04 May 2020. We have asked the leniency from the AAT and provided the required documents to the AAT via an email on 04 May 2020 at 2:32pm. We put it under case number 1816155.
…
We would like the AAT to give both the applicant and the nomination a chance to review their case. As the refusal of the [nomination] on 01 May 2020 was not their fault. It was our negligence as the representative and we would love to amend our action and our conduct …
In relation to the Agent’s representation that he “provided the required documents to the AAT via an email on 4 May 2020 at 2:32 pm … under case number 1816155”, the 4 May 2020 email is referred to in paragraph 45 above.
Ms Sitthiwachmethee stated in her affidavit dated 10 March 2025 that, in relation to the Agent’s failure to respond to the Tribunal by 14 April 2020 in respect of the 30 March 2020 Letter:
I believe that the omission of these documents was due to negligence on the part of my migration agent …
Principles in case law concerning circumstances in which fraud by agent may cause jurisdictional error in Tribunal decision
In Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 the High Court stated at [15]:
Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently, so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme is affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, “there are sound reasons of policy” why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.
In Minister for Home Affairs v DUA16 [2019] FCAFC 221; 273 FCR 213 at [50] Griffths J stated that “a finding of reckless indifference in the particular circumstances here is sufficient to found a finding of fraud in the relevant public law sense”. The agent’s conduct which was found to be reckless was, as described by Griffiths J at [49], that she provided a pro forma submission on behalf of her clients to the Immigration Assessment Authority but “concealed from [her clients] that she intended to use a pro forma submission, believing that had she disclosed that to them, they would not have been prepared to pay for her professional services”. Mortimer J at [101]-[102], in addition to agreeing with the analysis of Griffiths J, added that the agent “was recklessly indifferent to the truth and accuracy of the filed submissions”.
In Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 (SZLIX) the applicant’s agent did not notify the applicant of the applicant’s hearing date before the Tribunal. As a result, the applicant did not attend the hearing. The Full Court considered whether the agent’s conduct was merely negligent, or alternatively fraudulent or dishonest. The Full Court stated at [33]:
… an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Pt 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE at [51] . 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.
Application of principles to evidence before Court
Mr Guan asserted in paragraph 5 of the 28 March Submission that the Agent’s failure to respond to the 30 March 2020 Letter within the requested time (14 April 2020) “was not merely careless or negligent but constituted conduct that was either reckless or dishonest”. Mr Guan repeated in paragraph 7 that the Agent’s behaviour “amounted to dishonest or reckless conduct”. However, Mr Guan did not explain in his written or oral submissions why the Agent’s conduct was, or should be characterised as, “reckless” or “dishonest”.
The evidence before the Court is consistent with a conclusion that, as stated in the first respondent’s written submission, “the Agent’s failure to provide the Tribunal with the requested documents [was] due to oversight, negligence or inadvertence”.
In considering whether the Agent’s conduct was “reckless” or “dishonest”, some observations concerning the evidence before the Court are as follows.
First, it appears that on 30 or 31 March 2020 the Agent promptly forwarded to the Employer’s director a copy of the 30 March 2020 Letter, and the Agent then communicated with the director over the next two weeks to collect documents to provide to the Tribunal in response to the 30 March 2020 Letter. This conduct is not supportive of an inference that the Agent:
(a)intended to not provide to the Tribunal within the requested time documents requested in the 30 March 2020 Letter; or
(b)was otherwise reckless or dishonest.
Second, it appears from the Agent’s email on 4 May 2020 that, on becoming aware of the Tribunal’s decision concerning the Employer, within two hours he forwarded to the Tribunal in the Visa Applicant’s matter the documents intended to be provided to the Tribunal in the Employer’s matter. For example, the Agent stated in his email dated 8 April 2021:
The AAT has affirmed the decision on 1 May 2020, but we received the email on 4 May 2020. We … provided the required documents to the AAT via an email on 4 May 2020 at 2:32 pm. We put it under case number 1816155.
Again, this conduct is not supportive of an inference that the Agent:
(a)intended to not provide to the Tribunal within the requested time documents requested in the 30 March 2020 Letter; or
(b)was otherwise reckless or dishonest.
Third, there is no evidence before the Court that the Agent misled, deceived or acted dishonestly towards the Employer’s director or the Visa Applicant. To the contrary, the evidence before the Court indicates that the Agent co-operated with the director and Visa Applicant in agreeing to admit his oversight and negligence to the Tribunal: see letter dated 26 October 2020 and email dated 8 April 2021.
In a context where:
(a)an applicant in this Court for judicial review of the Tribunal’s decision, “as the moving party bears the onus of establishing jurisdictional error on the part of the Tribunal” and “it [falls] to the [applicant in the court proceeding] to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error”: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67]; and
(b)as stated by the Full Federal Court in SZLIX at [33] and cited with approval by the Full Federal Court in SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; 222 FCR 73 at [52], there is a level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 where fraud is alleged,
I am not satisfied that the Agent’s conduct in not providing to the Tribunal the documents requested in the 30 March 2020 Letter, or otherwise responding to the 30 March 2020 Letter, within the requested time, was dishonest, reckless, or fraudulent in any other way.
As in SZLIX at [29] and [30], “it is not possible properly to infer from the material [before the Court] that it was the agent’s dishonest failure that resulted in” the Tribunal not receiving a response to the 30 March 2020 Letter within the requested time and “there is no substratum of facts which would justify an inference that the agent dishonestly omitted” to respond to the 30 March 2020 Letter within the requested time.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2 in amended application
Particular (a)
It is contended in particular (a) in ground 2 that “the Tribunal failed to take any reasonable step to inquire about or obtain the missing documents when none were received by 14 April 2020”, for example by “contact[ing] the applicant or the agent (by phone or email) to alert them to the omission”. Mr Guan expanded on the point in paragraph 15 of the 28 March Submission as follows:
In this case, the Tribunal was aware that the Applicant had failed to respond to its invitation. However, it did not take any steps to verify whether the Applicant intended to respond or whether an error had occurred, even though it was aware that the Applicant had previously been in active communication via a migration agent. The Tribunal proceeded under s 359C of the Migration Act 1958 (Cth) to determine the matter without inquiring into the absence of the response, despite the availability of simple means to do so, such as contacting the Applicant directly.
Section 359C(1) of the Act provided at the time of the Tribunal’s decision:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
Cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 indicate that the Tribunal must exercise its procedural powers reasonably. This includes the procedural power in s 359C(1) to “make a decision on the review without taking any further action to obtain the information”.
The Tribunal at [6] considered whether to take further steps to obtain information from the Employer. The Tribunal stated at [4] and [6]:
[4]The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 14 April 2020 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
[6]The Tribunal is satisfied that the invitation to provide information was sent to the correct email. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made any contact with the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.
In Sino-Aus Motor Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 686 (Sino-Aus) at [88] Downes J stated:
Turning to the facts of this case, the Tribunal was satisfied that the statutory procedure for inviting the appellant to provide further information had been followed. As the appellant had, without explanation, failed to respond to the invitation, “the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under [s 359C(1)] to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with” the appellant: SZVFW at [69].
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW) at [97] Nettle and Gordon J stated:
The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision‐maker has a genuinely free discretion which resides within the bounds of legal reasonableness.
Mr Guan did not explain in his written or oral submissions why the present matter was not a case where the Tribunal “would ordinarily act reasonably in deciding in the exercise of the discretion under [s 359C(1)] to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with” the Employer: Sino-Aus at [88]. Mr Guan did not identify any aspect of “the subject matter of the particular review, the course the review has taken, the Tribunal’s approach throughout the review … and the other surrounding circumstances” (SZVFW at [97]) which might support a conclusion that the Tribunal did not act reasonably. Although Mr Guan asserted in paragraph 15 of the 28 March Submission that the Employer “had previously been in active communication via a migration agent”, a review of evidence before the Court does not support this assertion.
Further, I consider that the Tribunal at [4] and [6] provided “an evident and intelligible justification” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44] and [47]) for not taking further steps to try to obtain information from the Employer before making its decision.
Particulars (b) and (c)
It is contended in particulars (b) and (c) in ground 2 that “the Tribunal did not notify the applicant that it intended to decide the matter adversely due to the absence of the new financial information” and “the Applicant was never informed that the missing documents would be decisive to the outcome”. Mr Guan did not develop this particular in his written or oral submissions. The 30 March 2020 Letter notified the Employer:
(c)of the date by which he must provide the requested documents to the Tribunal, being 14 April 2020;
(d)of the consequences if the Employer did not provide the requested documents by that date, being that the Tribunal “may make a decision on the review without taking any further action to obtain the information”; and
(e)of the fact that the Tribunal “must be satisfied that all of the relevant criteria in r 5.19 of the Regulations are met at the time of its decision”.
I consider that the 30 March 2020 Letter put the Employer on notice of the adverse consequences for the Employer if the Employer did not provide the requested document to the Tribunal within the requested period. Mr Guan did not explain why the notice in the 30 March 2020 Letter was inadequate. I consider that the Tribunal was not required to provide further notice to the Employer in order to accord the Employer procedural fairness or act in a way that was legally reasonable.
Particular (d)
It is contended in particular (d) in ground 2 that “there is no indication that the Tribunal gave proper consideration to the evidence that was before it or that it weighed the nomination criteria against the information available (e.g. the Applicant’s previously submitted financial records)”. Mr Guan did not develop this particular in his written or oral submissions. The Tribunal at [12] stated that the Employer “has not provided any current information about its financial capacity to comply with the requirements to provide the nominee with two years of full time employment”. Mr Guan did not disagree with this statement by the Tribunal. It appears to follow from this sentence that, contrary to the contention in particular (d), the Tribunal considered the evidence before it. The Tribunal must have considered the evidence before it in order to conclude that none of the evidence before it comprised “current information about [the Employer’s] financial capacity to comply with the requirements to provide the nominee with two years of full time employment”. To the extent that Mr Guan complains that the Tribunal did not give “proper” consideration to the evidence, that the Tribunal was not persuaded by the evidence does not, without more, mean that the Tribunal did not give “proper” consideration to the evidence in a manner which might constitute jurisdictional error.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Conclusion
It follows from the above that the application in the Employer Proceeding must be dismissed.
CONSIDERATION IN VISA APPLICANT PROCEEDING
If there is no jurisdictional error in the Tribunal’s decision concerning the Employer, then there is no jurisdictional error in the Tribunal’s decision concerning the Visa Applicant. It follows that the application in the Visa Applicant Proceeding must be dismissed.
COSTS
I will hear submissions on costs following the delivery of judgment.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 6 May 2025
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