Verma v Minister for Immigration

[2014] FCCA 1687

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERMA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1687

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – allegation of third party fraud on Tribunal – necessity to take evidence from applicant concerned – consequences of findings on credibility – no fraud found on Tribunal – no jurisdictional error disclosed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.98; 474; 476(1); 477

Plaintiff 157/2002 (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64
SZIVK v Minister for Immigration & Citizenship [2008] FCA 334
Minister for Immigration & Citizenship v SZKIX (2008) 245 ALR 501
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393

Applicant: MANOJ VERMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 318 of 2013

Judgment of: Judge Brown

Hearing date: 21 July 2014

Date of Last Submission: 21 July 2014

Delivered at: Adelaide

Delivered on: 4 August 2014

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Mr D'Assumpcao

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the application filed on 29 October 2013 is dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY-SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 318 of 2013

MANOJ VERMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Manoj Verma “the applicant” instituted proceedings, in this Court, on 29 October 2013, seeking to review a decision of the Migration Review Tribunal “the MRT” not to grant him a Skilled (Residence) (Class VB) Visa pursuant to the provisions of the Migration Act 1958. 

2. The applicant prepared his own application and supporting affidavit.  In terms of the former document, the applicant utilised a pro forma document, which he completed by hand. 

3. Under the heading on the form Final Orders Sought by the Applicant he ticked a box against the following statement: An order that the decision of the Tribunal or Minister be quashed.  However, the applicant specified no grounds in support of this application.

4. The applicant’s affidavit was similarly brief.  It stated as follows:

   “I want to get the decision of Migration Tribunal reviewed.  See copy attached”. 

   Attached to the affidavit was a copy of the decision of the MRT, relevant to the applicant.  The decision is dated 20 September 2013.  In addition, the applicant has provided a letter from the MRT, which accompanied the decision. 

5. The application was given a first return date of 29 November 2013.  On this day the applicant appeared in person before the Court’s Registrar.  Procedural directions were made, including that the first respondent, the Minister for Immigration & Border Protection (“the Minister”) file and serve the court book, containing all documents relevant to the decision under review, by 10 January 2014. 

6. In addition, the applicant was granted leave to file any further material, including an outline of any submissions, which he wished to make, prior to the hearing of his application, which was scheduled for 21 July 2014. 

7. The applicant did not avail himself of the opportunity to file any further material or to provide an outline of submissions.  The timeframe for the filing of submissions was ten business days prior to the hearing.  On the date scheduled for the hearing of the matter, the applicant again appeared on his own behalf. 

8. In response to a question from the Court, as to what were his grounds for challenging the relevant decision, the applicant indicated that he had been duped by a migration agent retained by him.  In particular, the applicant asserted that he had not been aware that the migration agent in question had applied for the relevant visa, on his behalf, nominating as his skilled occupation painting trades worker. 

9. Essentially, the applicant indicated that both he and the Department of Immigration & Border Protection had been the victim of a fraud perpetrated by the migration agent, who had not been authorised to apply for the visa in question.  Accordingly, by necessary implication, the applicant contends that the decision of the MRT is vitiated by this fraud.

10. This assertion of fraud, made by the applicant, had not previously been raised by him, with either the Court or the Minister’s legal representatives.  It was not supported by any evidence and came axiomatically at a very late stage in the proceedings.  It was not an issue raised before the MRT itself. 

11. In these circumstances, I elected to take oral evidence from the applicant, during which he was cross-examined by the counsel for the Minister, Mr D’Assumpcao. 

12. The primary purpose of this exercise was to enable me to make some assessment of the credibility of the applicant, in respect of the issue of the alleged fraud occasioned to him and, by necessary implication, to the Court itself, by his previous migration agent. 

The content of the initial visa application

1. The relevant general skilled migration applicant form in question was apparently completed electronically. [1]  As such, it does not include a formal mechanism for adoption through signature.  However, an applicant is asked to respond in the affirmative if he or she has read and understood the contents of the form and whether he or she has read and understood the information supplied in conjunction to the application. 

   [1]  See casebook at page 6-19

2. The visa application form, submitted on behalf of the applicant, answers these questions in the affirmative, particularly in respect of a declaration that the information supplied is complete, correct and up to date in every detail.  The form in question indicates that it was generated on 26 June 2011 at 2:15am (Eastern Standard Time).

3. In his evidence, the applicant conceded that much of the information contained in this form was correct and relevant to him.  This information included his residential address; the identity and description of his relatives; his electronic contact details, including mobile phone and email address. 

4. In addition, the visa application form indicated that the applicant had completed a certificate in printing and graphic arts at Cambridge International College, which he commenced on 5 May 2008 and completed on 10 July 2009. 

5. The document in question also indicated that the applicant had completed a certificate in business management, provided by Durban International College, which had been completed on 12 June 2011. 

6. In the form, each putative applicant is advised that he or she is required to provide evidence of a suitable skills assessment applicable to the visa being applied for.  The form further notes that failure to provide such an assessment may result in any potential applicant being to have failed to supply the criteria relevant to such a visa. 

7. In this case, the applicant ostensibly nominated painting trades worker as his nominated occupation and Trades Recognition Australia as the applicable assessing authority, with the assessment having been made on 20 June 2011.  A reference number is provided in support of this latter assertion. 

8. In his sworn evidence, the applicant asserted that he had never studied painting.  It was his evidence that he had studied computer animation.  Accordingly, it was his position that the nominated occupation, on the visa application form, had no relevance to him. 

9. The applicant asserted that he had approached the migration agent concerned, whilst he had been a student and entitled to remain in Australia pursuant to a student visa.  He had approached the agent in order to seek his advice as to the “next step” to enable him to continue to reside in Australia. 

10. In these circumstances, the applicant asserted that the migration agent had inserted the details of his purported nominated occupation, without reference to him personally, and in doing so had misled him and defrauded him of a significant amount of money. 

11. The applicant indicated that he had seen the migration agent between twenty and twenty-five times.  He conceded that he had been present, whilst the agent in question had completed the electronic form in question.  He denied any knowledge of the nomination of painting as his relevant application in question, asserting that he had trusted the agent to follow the appropriate processes to secure his ultimate gaol, which was to be legally able to remain in Australia. 

Administrative processes following the visa application

1. Ostensibly, the visa application form was completed by the applicant independently.  As such, the form in question recorded his name and contact details as the person whom the department was to contact in the event it had any queries in respect of the application in question. 

2. On 3 November 2011, a case officer from the department wrote to Mr Verma, by email, advising him that he needed to provide a skill assessment for his nominated occupation.  A follow-up email was sent on 3 January 2012.

3. In his evidence, the applicant confirmed that the email and mailing address indicated on the letter and subsequent email were correct.  He was somewhat equivocal about receipt of the correspondence in question, indicating that he could not specifically remember the first letter but was not in a position to deny that he had received it. 

4. I accept that the applicant did not respond to the correspondence in question.  Against this background, a delegate of the Minister declined to grant the skilled residence visa because the applicant had not provided the relevant evidence that he had satisfied the relevant assessment of his skills in the nominated occupation. 

5. Given the prerequisite criterion attaching to the granting of the visa in question and the clear absence of any proof of the required skill assessment, the decision made by the delegate was the only one open to it.  It was this decision, made on 3 November 2011, which was subject to review by the MRT. 

The application to the MRT

1. The application for review was received by the MRT on 19 July 2012.  In his evidence, the applicant conceded that he completed this form himself.  In particular, he identified his signature, against the date 19 July 2012, as appearing on the document in question, underneath a printed pro forma declaration that the applicant in question understood the information supplied in the form, which was complete and correct in every detail. 

2. The application contained the applicant’s postal address and a mobile telephone number, each of which the applicant confirmed as being correct and current at relevant times, in his sworn evidence. 

3. The applicant confirmed his personal address as being the appropriate one for the MRT to send correspondence.  In addition, the details of any authorised representative for the applicant were left blank. 

4. The application before the MRT was listed for hearing on 20 September 2013. The applicant was invited to appear before the Tribunal in a letter dated 26 August 2013.  He was further advised that he could attend the hearing by telephone and was asked to advise if the number provided by him was appropriate for this purpose. 

5. In his sworn evidence, the applicant did not deny that he had received this invitation letter.  He also indicated, in my assessment in a singularly unconvincing manner, that he had been sick on 20 September 2013 and so unable to respond to telephone calls made to him by the MRT. 

The hearing before the MRT

1. The record of the MRT indicates that the applicant was called, on four separate occasions, between 2.01pm and 3.26pm on 20 September 2013 but the applicant did not respond to any of the calls in question. 

2. In these circumstances, the MRT declined to delay the hearing process any further, as it was satisfied that the applicant had been appropriately advised of the hearing in question and had neither requested a postponement of it nor put forward any reason for his non-attendance.

3. The Tribunal further found that the applicant had not provided any evidence that his skills had been assessed by Trades Recognition Australia as being suitable for his nominated skilled occupation as a painting trades worker. 

4. On this basis, it was found that the applicant did not satisfy the appropriate criterion for the grant of a Skilled (Residence) (Class VB) Visa under section 65 of the Migration Act 1958.

The legal framework

1. Pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.

2. However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Act, which are of an administrative nature are “privative clause decisions”.

3. The decision of the MRT, which the applicant seeks to review in this case is such a “privative clause decision” as defined by section 474 of the Act. 

4. Pursuant to the section, privative clause decisions are final and conclusive and as such are not open to being challenged, appeal against, reviewed, quashed or called in question in any court and as a consequence, they are not to be subject to any prerogative writ. 

5. However, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error of have been made in bad faith.[2]

   [2]  See Plaintiff 157/2002 (2003) 211 CLR 476

6. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the tribunal’s power.[3]

   [3]  See Craig v South Australia (1995) 184 CLR 163

7. Jurisdictional error is a complex concept.  It does not entail a merits review or a re-hearing of the facts of the case concerned.  In addition to the matters listed above, it can encompass a breach of procedural fairness or a denial of natural justice, including bias or the appearance of bias.

8. Pursuant to section 477 of the Act, any application to this court, in relation to a migration decision, must be made within 35 days of the date of that decision.  In the case of the current matter, the application was filed a few days after the time prescribed.

9. Pursuant to section 477(2) of the Act, the court has a discretion to extend the applicable time frame, if it considers that it is necessary to do so “in the interests of the administration of justice”.  

10. The relevant decision of the MRT was made on 20 September 2013.  The relevant application was made on 29 October 2013.  In his sworn evidence, the applicant indicated that he alone prepared this application, as he has severed his relationship with his former migration agent. 

11. This application was filed on 29 October 2013.  Accordingly, it is four days out of time.  In his application, the applicant has not provided any reason for this delay in application.  In his sworn evidence, he indicated that “technically I did not know what to do.” 

The credibility of the applicant

1. I appreciate that the applicant is unrepresented in these proceedings and does not speak English as his first language.  However, in my assessment, he has a reasonable understanding of the English language. 

2. Certainly, in his original application, he did not indicate a requirement for an interpreter.  To the contrary, under the heading on the pro forma application, under the heading “language spoken” he has ticked the box indicating that he does not require an interpreter. 

3. In addition, it was another requirement of the skilled visa in question that the applicant provide evidence of proficiency in English in the form of a successful English language proficiency test.  The applicant provided an English test result, which indicated that he was proficient in the English language. 

4. The proceedings before the court have been on foot for a significant period of time.  The applicant has failed to provide any submissions in support of his position advanced at hearing until the day scheduled for it. 

5. On the basis of the applicant’s own sworn evidence, he was aware that his allegedly duplicitous migration agent had provided incorrect information to the Department, certainly at the time of his application to this court.  Yet he did not raise this as a ground for review in his application.  In this context, I found his evidence that he did not know what to do about this situation to be unconvincing and lacking in credibility.

6. I accept that the applicant reads English.  His evidence is that he has lived at the same address, in suburban Adelaide, throughout the process of visa application and the subsequent review process.  In these circumstances, in my view, it beggars belief that the applicant was not aware that his original visa application indicated that he was seeking a skilled visa on the basis of his professional expertise as a painter.

7. Even if the migration agent in question played a significant part in the compilation of the initiating visa application, it is clear from the form in question that the applicant himself was to be the conduit of any further information required by the Department to pursue such application. 

8. As a consequence, the applicant was provided with notices indicating that he was required to provide proof that he had some form of relevant professional qualifications to the Department.  However, it is clear that the applicant chose to do nothing about these requests.  Certainly, he did not seek any clarification from the relevant departmental officers or, at an early stage, indicate that his professional skills were not in painting. 

9. Even if I accept the applicant’s evidence that the migration agent assisted him in compiling the initial visa application form in question and was responsible for completing significant portions of it, it seems axiomatic that the applicant was recklessly indifferent to the contents of the form, which was despatched on his apparent imprimatur.

10. The form gives the person completing it electronically, the opportunity to indicate whether he or she is being given assistance to complete the form and whether that assistance is being provided by a migration agent.  The application indicates “no” in response to these issues.

11. The applicant concedes that his signature, executed by he himself, appears on the application for review filed with the MRT.  Again, the form in question makes no reference to any form of external professional assistance in the completion of the application in question. 

12. The applicant declined the invitation of the MRT to appear before it.  I did not believe the applicant’s evidence that he was “too sick” to attend the hearing in question by telephone.  Rather, this statement seemed to me to constitute a recent invention to explain why the issue of the alleged mala fides of the migration agent in question had not been raised sooner or before the MRT directly.   

13. All in all, I did not find the applicant’s evidence, in respect of why the visa application form, ostensibly completed by him, contained an occupation irrelevant to the qualifications obtained by the applicant in the course of his studies in Australia, to be credible. 

14. In addition, I did not believe that he had been duped or tricked by his migration agent for any prolonged period of time.  In this context, the applicant provided no credible explanation as to why he had not complained about his advisor until the morning of his application for judicial review. 

1. The evidence is clear that the applicant personally received notification, from the Department, that he was required to provide proof of his skills in respect of the occupation nominated by him.  He did nothing about this.

2. Further I find he ignored the invitation from the MRT to appear before it and give evidence.  In all these circumstances, I find it implausible that the applicant was the victim of any protracted process of fraud perpetrated by his migration agent. 

The legal principles applicable

1. As a consequence of the High Court’s decision in SZFDE v Minister for Immigration & Citizenship [4] courts such as this, conducting a process of judicial review, are duty bound to take allegations of fraudulent behaviour, arising from proceedings before tribunals, such as the MRT, seriously. 

   [4]  SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64

2. This is because allegations of fraud, in the field of public law, if left unchecked, might have the effect of calling into question the propriety of the decision making process itself, which would not be in the public interest.

3. As such, in my view, I was obliged to conduct the inquiry which I did.  Necessarily this involved the taking of evidence from the applicant, although he had not previously been put on notice that this may occur. This was because otherwise, in the absence of evidence in respect of the issue of fraud raised by the applicant, it was inevitable that his application would fail, as it had no other intrinsic merit.[5]

   [5]  See SZIVK v Minister for Immigration & Citizenship [2008] FCA 334 at [26] – [27] per Finkelstein J

4. In SZFDE a family had applied for a protection visa, with the assistance of a migration agent. The agent advised the family not to attend a hearing before the tribunal concerned as he (the agent) claimed that the Tribunal was not currently accepting any visa applications and would therefore dismiss their applications.

5. At the relevant time the migration agent in question had had his registration as a migration agent cancelled and his practising certificate as a lawyer suspended.  At first instance, it was accepted that he had been fraudulent, extracting money from the family under false pretences and falsely inducing them not to attend before the Tribunal to give evidence as to their circumstances.

6. In the High Court it was found that the fraud of the migration agent had had the effect of subverting the invitation extended by the Tribunal, to the relevant individuals in question to give evidence, with the consequence that the Tribunal had not been able discharge its obligation to accord procedural fairness to them. 

7. This failure was a matter of the highest magnitude and stultified the Tribunal’s legislatively mandated requirement to accord natural justice to the applicants concerned.  It was characterised as being in the nature of a fraud on the Tribunal itself and to have rendered its subsequent decision no decision at all.

8. However, the High Court placed a significant gloss on this principle.  It said as follows:

   “…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.”[6]

   [6] Ibid at 77 [53] approving French J (as he then was) in the proceedings before the Full Court of the Federal Court.

9. In all these circumstances, it seems apposite that the Court, exercising a judicial review function in respect of a tribunal such as the MRT, must proceed extremely cautiously in cases in which an applicant raises allegations of fraud or some other species of mala fides on the part of a person or persons said to have been providing advice to him.

10. Very often the allegations of fraud are inchoate, as here.  In addition, again as here, they arise at an extremely late stage of proceedings and are unsupported by any form of independent evidence regarding the fraud in question. 

11. In particular, the migration agent in question has not been examined or put on notice of the allegations made in respect of his or her conduct.   Indeed, I have not been provided with any formal evidence indicating whether the agent in question is or is not registered pursuant to the provisions of the Migration Act.  

12. In these circumstances, the court must be cautious about unreasonably drawing inferences concerning fraud on the part of the migration agent against whom allegations arise.  The situation in this case is markedly different to that which prevailed in SZFDE, where the fraud of the migration agent was established in evidence before the court.

13. No such fraud has been definitively established against the person named by the applicant in his evidence given at the hearing of this matter.  In addition the alleged agent was not previously identified in any affidavit material filed by the applicant or disclosed in the application for the original visa or in the application to the MRT, which the applicant acknowledges he personally signed.

14. In any event, even if the applicant’s evidence is taken at its highest, in my view, there has been no fraudulent subversion of the MRT’s invitation process in this case.  The applicant concedes that he received the requisite invitation to give evidence before the Tribunal, but chose not to respond to it, for a specified reason, which I have found to be dubious.  The invitation in question was forwarded to the applicant at his correct postal address, which patently originated with the applicant himself, rather than any appointed agent.

15. In this context, the following comments of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZKIX[7] appear apposite.  This too was a case in which allegations of fraud were raised against a purported migration agent, which were said to have vitiated the Tribunal’s decision-making function.  The Full Court said as follows in respect of the evidence given by the applicant concerned to the Federal Magistrates Court (as this court was formerly known):

    “The state of the evidence before the Federal Magistrate was, in our view, such that it revealed little about the alleged agency of the migration agent, but it suggested much about the veracity of the respondent.  While the confused picture that emerged in the hastily conducted hearing may have engendered real suspicion in the Federal Magistrate – a suspicion obviously exaggerated by his Honour’s experience with what he considered to be relatively comparable cases – that suspicion did not constitute proof of the serious allegations being made in the show causes application.”

    [7]  Minister for Immigration & Citizenship v SZKIX (2008) 245 ALR 501 at [23]

16. In my view, all of these considerations apply in the current matter.  Undoubtedly the hearing in question was hastily convened.  This was because the applicant raised his claims orally only when his case was called on for hearing. 

17. In my assessment, the applicant’s evidence was, at times, confused and, at others, unreliable.  As such, there is no proof that the migration agent, against whom the allegations of a lack of propriety are made, behaved fraudulently or indeed that he or she inserted the relevant occupation in the original visa application.

18. The behaviour, sought to be castigated by the High Court in SZFDE, was characterised, by the High Court, as fraud on the tribunal.  For reasons relating to public policy, particularly the probity of their decision making processes, it is imperative that the integrity of tribunals, such as the MRT, be maintained.

19. Accordingly, to be relevant in judicial review proceedings, such as these, the fraud alleged must not only be satisfactorily established but also relate to the decision making process of the tribunal concerned, particularly its overall integrity. 

20. As the High Court approved,  there are equally sound policy reasons which militate against a court, such as this one, too readily vitiating any decision of a tribunal, in cases where issues are raised relating to alleged poor advice or some other unspecified mishap on the part of the applicant concerned. 

21. In my view, these concerns must be heightened in cases where there are issues concerning the complicity of the applicant in the behaviour complained of – either in a direct sense or through reckless or negligent conduct on the part of the applicant concerned.

22. In this case, the evidence of the applicant is that he engaged the migration agent in order to secure some form of legal entitlement to remain in Australia following the completion of his studies, in respect of which some form of student visa had been earlier issued to him.  As such the instructions provided by him to the agent were general in nature.

23. The application, on its face, originated with the applicant personally, as in answer to the question did you receive assistance in completing this form a negative answer is provided.  The applicant concedes that he was present during the process in which the electronic visa application form was completed and provided correct information, germane to him, in respect of many of the questions posed on the form. 

24. If this evidence is correct, on his own case, it seems to me that the applicant was, at best, recklessly indifferent to the entire contents of the form or was negligent in not checking the form’s contents prior to its despatch.  As such, it seems difficult to draw any other conclusion than that the applicant was complicit in any deception visited upon the Tribunal. 

25. In my view, this cannot be held to a fraud on the tribunal, in the sense envisaged in SZDE.  Given his involvement, on his own case, in the commission of the original visa application and the application to the MRT which followed it, the filing of both documents cannot be said to characterise a fraudulent omission vis-à-vis the applicant.[8]

    [8]  See SZLIX (supra) at [33]

26. This consideration, in my view, engages the provisions of section 98 of the Migration Act which provides as follows:

    “A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it be filled in or if it is otherwise filled in on his or her behalf.”

    Associated with this provision is Regulation 2.07 of the Migration Regulations 1994 which requires a visa applicant to complete any required form in accordance with directions.

27. In the circumstances, which prevail in this case, the question arises as to whether it is appropriate for the court to, in effect, allow the applicant to disown his visa application and subsequent application to the MRT by giving credence to his implied assertion that there was no proper hearing before the Tribunal because the original application was invalid.

28. In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs[9] an applicant for refugee status was found to have fraudulently used a pseudonym and claimed to have a nationality different to that which he had.  Later, he asserted that he had not personally signed of filled in the application and therefore it did not satisfy the strict requirements of the Act.

    [9]  NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199

29. The Full Court rejected this contention. It held that the applicant in question, as a consequence of section 98, was fixed with responsibility for the false document.  As such, the application was found to comply with the provisions of the Act and to be therefore valid.  Rather, it was characterised as a false application which was in formal terms, a valid application.[10]

    [10]  See NAWZ (supra) at [18]

30. Even if I was prepared to accept that the applicant did not know that his agent had ascribed to him painting skills without his knowledge, which I am not, given the involvement of the applicant in the commission of the original visa application, in my view, the aforesaid formulation is applicable to the application in question. 

31. In formal terms, the application was valid.  As a consequence, both the delegate and later the MRT were bound to consider it in such terms.  Accordingly, in my assessment, it cannot be said that the relevant decision of the MRT which resulted was no decision at all.

32. In SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [11] Bennett J said as follows:

    “The applicant authorised and caused his migration agent to fill in the visa application on his behalf.  While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies.”

    [11]  SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 at [16]

Conclusions

1. I have found that the allegations of fraud, raised by the applicant, have no credibility.   In addition, regardless of these allegations, I have further found that it cannot be said that the application for the visa concerned is anything other than valid and therefore the decision not to refuse the visa was amenable to review by the MRT.

2. In these circumstances, I am satisfied that the applicant has not been able to demonstrate any jurisdictional error which can be attributed to the MRT in the discharge of its review function pursuant to the provisions of the Migration Act.

3. For all these reasons, the application should be dismissed and the applicant ordered to pay the first respondent’s costs fixed in the sum of $6,646.00.

I certify that the preceding ninety nine (99) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  4 August 2014