Federal Court of Australia

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 740

ORDERS

THE COURT ORDERS THAT:

1.    Dispensing with rr 9.63, 9.64 and 9.66(3) of the Federal Court Rules 2011, the First and Second Appellants be appointed the joint litigation representatives of the Third Appellant for the purposes of this appeal.

2.    The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

3.    The appeal be dismissed.

4.    The First and Second Appellants pay the costs of the First Respondent to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

Introduction

1    On 24 June 2022, I made the following orders:

(1)    Dispensing with rr 9.63, 9.64 and 9.66(3) of the Federal Court Rules 2011, the First and Second Appellants be appointed the joint litigation representatives of the Third Appellant for the purposes of this appeal.

(2)    The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

(3)    The appeal be dismissed.

(4)    The First and Second Appellants pay the costs of the First Respondent to be agreed or taxed.

2    These are the reasons for orders 3 and 4. The other orders were procedural in nature.

3    This is an appeal from the judgment and orders of Judge Blake made on 26 August 2021, dismissing an application for judicial review of a decision of the Second Respondent (the ‘Tribunal’) dated 6 May 2016: Kaur v Minister for Immigration and Border Protection [2021] FCCA 1981. The Tribunal had affirmed a decision of a delegate of the First Respondent not to grant to each of the appellants a subclass 485 Skilled (Provisional) (Class VC) visa (‘skilled visa’).

Background

4    The background is not in dispute and is taken from the written submissions of the First Respondent.

5    The Appellants are citizens of India. The Second Appellant is the First Appellant’s husband. The Third Appellant is their child. On or around 1 July 2009, each of the First and Second Appellants entered Australia as the holder of a student visa. The Third Appellant was born in Australia on 27 October 2010.

6    On 17 October 2011, the appellants applied for the skilled visas. The migration agent whom the Appellants engaged was Mr Jeetinder Singh Aijan of S & S Migration. The Tribunal observed that there has been numerous media reports and court judgments concerning the allegedly fraudulent activities of S & S Migration. Only the First Appellant (the ‘appellant’) claimed to meet the primary criteria for the grant of a skilled visa. The appellant’s husband and her child claimed to satisfy the secondary criteria on the basis of their membership of her family.

7    The Appellants’ visa applications were made online, and stated that the appellant did not receive assistance in completing the form and did not refer to her migration agent. However, it was not in dispute that the Appellants’ visa applications were lodged online by Mr Aijan. The completed visa application form stated that the appellant had not undertaken an English test within the 24 months prior to the date of the application, but stated that the appellant had obtained a skills assessment from Trades Recognition Australia (‘TRA’).

8    In correspondence to the appellant dated 21 May 2012, a delegate of the First Respondent invited the appellant to comment on adverse information. Among other things, the delegate stated that:

It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications with the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.

In addition, as part of your application you answered ‘yes’ to the question ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’ Further, in your application you provided the following reference indicating a successful skills assessment TRA10/947578420. This reference was referred to TRA for verification. TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.

The delegate’s letter also advised that the appellants could withdraw their application at any stage during processing by advising the department in writing. The Appellants did not withdraw their applications.

9    On 16 July 2012, the appellant’s representative responded to this correspondence. The representative lodged written submissions and a statutory declaration of the appellant dated 9 June 2012. The representative argued that:

(1)    the appellant had approached her former migration agent, Mr Jeetinder Singh Aijan of S & S Migration, to extend her student visa and remain in Australia with her family until she had finished her course;

(2)    the appellant had been the victim of fraudulent conduct by S & S Migration;

(3)    the appellant had no involvement in or awareness of the conduct of Mr Aijan in making a skilled visa application and giving information in the skilled visa application about a TRA skills assessment;

(4)    the appellant had not authorised the making of a skilled visa application;

(5)    the skilled visa application was therefore not valid; and

(6)    there was therefore no power to make a decision to grant or refuse the visa under s 65 of the Migration Act 1958 (Cth) (the ‘Act’).

10    On 28 February 2013, another delegate of the First Respondent refused to grant each of the Appellants a skilled visa (the ‘delegate’s decision’). The delegate relevantly found that the appellant did not satisfy the criteria for the grant of a skilled visa in two ways.

11    First, the delegate found that the appellant had not undertaken an English language ability test within the 24-month period immediately before the skilled visa application was made. The delegate therefore found that the appellant did not satisfy the criterion in cl 485.215 of Sch 2 to the Migration Regulations 1994 (Cth) (the ‘Regulations’).

12    Secondly, the delegate stated that TRA had confirmed that no skills assessment existed for the appellant. The delegate therefore found that the appellant did not satisfy the criterion in cl 485.221 of Sch 2 to the Regulations.

13    On 4 March 2013, the appellants applied to the Migration Review Tribunal (as it then was) for review of the delegate’s decision.

14    On 16 April 2014, the Migration Review Tribunal affirmed the delegate’s decision. On 29 April 2014, the appellants applied for judicial review of that decision of the Migration Review Tribunal. On 13 July 2015, the Federal Circuit Court (as it then was) ordered by consent that that decision be set aside and the matter be remitted to the Tribunal, on the basis that the Migration Review Tribunal failed to consider substantively the appellant’s statutory declaration of 9 June 2012.

15    Upon remittal, the Tribunal conducted a hearing on 2 May 2016. At the hearing, the appellant gave evidence and made submissions with the assistance of an interpreter. Among other things, the appellant gave evidence that she had instructed Mr Aijan of S & S Migration to apply on her behalf for a further student visa. She claimed that, contrary to her instructions, Mr Aijan had applied for a skilled visa, of which she only became aware later, in 2012.

16    There was no dispute before the Tribunal that the appellant did not and could not satisfy the criteria for the grant of a skilled visa. In particular, it was not disputed that she did not and could not meet the English language ability and skills assessment requirements. The appellant instead claimed that the skilled visa application was not valid. She claimed that she had never authorised Mr Aijan or S & S Migration to make the skilled visa application.

17    On 6 May 2016, the Tribunal affirmed the delegate’s decision to refuse to grant a skilled visa to each of the Appellants.

Tribunal decision

18    The Tribunal found that the skilled visa application was valid. The Tribunal found that the appellant had given inconsistent evidence over time about her involvement with Mr Aijan and S & S Migration and therefore had “general reservations about her claims”: see [22]-[27] of its reasons. In particular, the Tribunal found that the appellant’s evidence during the 2 May 2016 hearing was inconsistent with a previous submission by her representative that she was “persuaded by the fraudster to apply for a 2 year work permit” and with her previous evidence that Mr Aijan had told her that it was not possible to extend her student visa and that he would “do something else” for her. The Tribunal invited her to comment on these inconsistencies: see [21]-[22].

19    The Tribunal ultimately found that “in essence she agreed to whatever it was that Mr Aijan promised”, and so found that the appellant had authorised Mr Aijan and S & S Migration to make the skilled visa application. In particular, the Tribunal stated that:

[43]    The visa application in the present case was evidently made online. The Tribunal accepts that Ms Kaur did not sign any visa application. The visa application that was lodged contained a number of false statements. Nevertheless, considering the whole of the evidence, the Tribunal finds that Ms Kaur provided her passport and relevant information to Mr Aijan and paid him. Ultimately she was indifferent to the precise nature and contents of the visa application. The Tribunal considers the evidence Ms Kaur gave the MRT on 1 April 2014 to be the more likely version of events. It may be that her intention initially was to obtain a further Student visa, but she went along with what Mr Aijan said he would actually be able to do for her. Significantly, Ms Kaur did not approach the Department after she was told that Mr Aijan had absconded after defrauding a number of clients.

[44]    On the basis of the whole of the evidence, the Tribunal finds that Ms Kaur gave Mr Aijan general authority to act as her agent and to make the visa application and that he acted within the scope of the authority. Section 98 of the Act does not enable her now to disavow the application.

20    Section 98 of the Act provides:

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 to be filled in or if it is otherwise filled in on his or her behalf.

21    The Tribunal continued:

[45]    If Mr Aijan was not a registered migration agent that of itself would not constitute fraud in the relevant sense. Ms Kaur's evidence tends to show that the advice Mr Aijan gave was bad or negligent advice at least. A high level of satisfaction would be required for a finding of fraud on the part of the agent: see especially Kaur and Prodduturi at [31] and Singh at [48]. There would in any event not be fraud of the nature of the fraud in SZFDE…

22    I will return to the above paragraphs of the Tribunal’s reasons later in these reasons.

23    The Tribunal also observed that any false information in the skilled visa application was not acted upon or relied upon by any decision-maker in rejecting the skilled visa applications.

24    Having found that the skilled visa application was valid, the Tribunal found that the appellant could not, by her own admission, satisfy the skills assessment and English language criteria in, respectively, cl 485.214 and cl 485.215 of Sch 2 to the Regulations. The Tribunal found that, as a consequence, the appellant’s husband and child could not satisfy the secondary criteria for the grant of a skilled visa.

25    As the delegate had not considered the application of public interest criterion 4020 (‘PIC 4020’), the Tribunal did not consider whether the Appellants satisfied PIC 4020: see [18]-[20] of its reasons. Accordingly, neither the delegate nor the Tribunal made the finding that the Appellants did not satisfy PIC 4020, and neither decision-maker refused the Appellants’ skilled visa applications because the Appellants did not satisfy PIC 4020.

26    PIC 4020 is the public interest criterion in cl 4020 of Sch 4 to the Regulations which is required to be satisfied as a criterion for the skilled visa, and at the relevant time provided as follows:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

Before the Federal Circuit Court

27    The first and second appellants appeared at a hearing before Judge Blake on 19 August 2021 and made oral submissions with the assistance of an interpreter. They alleged that they were the victims of a fraud perpetrated by their agent, that they only ever sought a student visa and not a skilled visa, and that their son would suffer if they were required to return to India given the stage of his education.

28    On 26 August 2021, Judge Blake made orders dismissing the application with costs. His Honour noted that the grounds relied upon by the appellants were unparticularised, and that this was a sufficient basis for those grounds to be dismissed. Nonetheless, noting that the appellants were unrepresented his Honour also considered the reasons of the Tribunal in the context of the grounds of judicial review.

29    With respect to the first ground, his Honour found that it was open to the Tribunal to find that the application for the visa was valid. His Honour found that the Tribunal carefully considered the evidence of the appellant and that it was open to it to conclude that the appellant gave Mr Aijan general authority to act as her agent, that she was indifferent to the nature and content of the visa application, and that the fraud of Mr Aijan did not stultify the Tribunal’s decision making under the Act.

30    With respect to another two grounds, his Honour found that in determining that the visa application was valid the Tribunal took into account all relevant matters and did not take into account any irrelevant matters. His Honour further found it was open to the Tribunal to find that the appellant did not satisfy the criteria for the granting of the visa, noting that the concessions made by the appellant meant that she was never going to satisfy those criteria.

31    Then his Honour found that three other grounds took issue with the Tribunal’s consideration of, and weight given to, the appellant’s evidence and did not disclose any jurisdictional error. His Honour found that the Tribunal carefully considered the appellant’s evidence and weighed that evidence carefully in making its findings, including giving consideration to whether any discrepancies in the appellant’s case may be the result of an imperfect memory.

32    Finally, his Honour found that the ground alleging denial of procedural fairness to the Appellants could not succeed and that there was nothing which suggested that the conduct of the Tribunal was unfair or unjust or that the appellant was otherwise denied procedural fairness. Other grounds (not relevant to this appeal) were dismissed.

The appeal before the Federal Court

33    On 17 September 2021, the appellants filed a Notice of Appeal from the judgment and orders of Judge Blake made on 26 August 2021.

34    The grounds of the appeal were as follows (omitting particulars):

1.    His Honour failed to consider that the first appellant is not meeting the criteria as outlined in the clauses 485.214, 485.215 and 485.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) and therefore did not meet the criteria for the grant of the visa.

2.    His Honour should have found that the Tribunal denied the Appellant procedural fairness in making its decision.

3.    His Honour should have found that the Tribunal misconstrued the Regulations by looking into meeting the criteria for IMMI 11/036 and requirements for the undertaking of skills assessment. His Honour should have found that the Tribunal committed jurisdictional error when it failed to ask correct questions with regard to the validity of the visa application.

4.    His Honour should have found that the Tribunal committed jurisdictional error when it failed to consider that the appellants did not sign any authority forms such as Form 956 (Appointment of registered Migration Agent) or Form 956A (Appointment of authorised recipient). His Honour fell into error as it determined that S&S Migration made a valid visa application despite the fact that they were acting without any from the appellants.

5.    His Honour was procedurally unfair and/or unreasonable by dismissing the Appellant grounds for seeking the judicial review of the second respondent’s decision.

35    Generally grounds one, three, four and five (and their particulars) relate to the Appellants’ contention that the Tribunal ought to have found that the visa application was invalid. Ground two is an allegation that the Appellants were denied procedural fairness.

36    The First and Second Appellants appeared before me but did not file or serve any written submissions in support of the appeal. Before me those appellants made submissions that in reality involved me undertaking a merits review. The oral submissions also referred to the current position of their son, the Third Appellant. The oral submissions did not address the relevant issues raised in the grounds of appeal.

37    The factual findings made by the Tribunal need to be carefully considered.

38    It is to be recalled that the appellant retained Mr Aijan of S & S Migration to lodge a visa application on her behalf and paid him a fee to do so. Contrary to what is suggested in grounds one and four, it was open to the Tribunal to conclude that the appellant verbally provided a general authority to Mr Aijan to make the skilled visa application. That is, the absence of any written authority is not determinative of the question as to whether an authority was given.

39    Then it was open to the Tribunal to conclude on the basis of the material before it (and in particular, the inconsistencies in the appellant’s evidence identified by the Tribunal) that the appellant authorised the lodging of a skilled visa application, that the skilled visa application was therefore valid, and so no error on the part of the primary judge is established.

40    There was reference made by the Minister to the authorities relating to fraud: see Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1; [2017] FCAFC 213 (‘Maharjan’); Gill v Minister for Immigration & Border Protection (2016) 248 FCR 398; [2016] FCAFC 142 (‘Gill’); and Kaur v Minister for Immigration & Border Protection (2019) 269 FCR 464; [2019] FCAFC 53 (‘Kaur FC’). I do not regard it as necessary to recite the principles in these authorities, as in my view the position on this appeal as to the facts is clear.

41    However, I would recall the principle as stated in Kaur FC at [56]:

… the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud no[r] ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.

42    In Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 (‘Katragadda’), the plurality judgment (Mortimer and Charlesworth JJ) emphasised the importance of the appellant needing to prove an entitlement to the declaratory relief sought. Their Honours said at [57] to [59]:

[57]    The appellant had to prove he was entitled to the declaratory relief he sought, in relation to the invalidity of his skilled visa application. To discharge that burden he was required to prove that the third party fraud (the existence of which was not disputed by the Minister) stultified the decision making process required by the Act about the skilled visa application. That aspect of his burden is not in issue on this appeal.

[58]    There might be several ways to describe the burden of proof that was in issue. The appellant was required to prove, consistently with s 140 of the Evidence Act, that he was not “involved in” the fraud, or was not “complicit” in it. The appellant needed to prove he had no actual knowledge of the fraud being perpetrated by the third party and that he was not recklessly indifferent to it: the fraud here being lodging of a skilled visa application with numerous false statements and representations in it, including that the appellant was capable of satisfying the key visa criteria for a skilled visa.

[59]    The Federal Circuit Court concluded that the appellant had not discharged that burden of proof. That conclusion would be a sufficient basis for dismissing the application for judicial review. And, if there be no error in the conclusion, that would be a sufficient basis to dismiss this appeal.

43    Justice Lee similarly said at [75] to [78]:

[75]    To obtain declaratory relief, Mr Katragadda had the burden of proving fraud stultified the relevant decision-making process. This was uncontroversial in the present case. But although such proof of stultification was necessary, it was not sufficient: he was also required to establish his agent’s conduct constituted a fraud on him.

[76]    … In the present context, with the particular role of the migration agent operating within, and regulated by, the Migration Act 1958 (Cth), private law analogies drawn from the common law of agency can be pushed too far; but when one remembers that fundamental to the concept of agency is the arming of an agent to act or speak on behalf of the principal in dealing with a third party, the notion that it is for the principal to prove that the principal was not complicit in the agent’s wrongdoing in making representations to a third party makes perfect sense. This is the case, notwithstanding that issues of fraud in a public law context are sui generis.

[77]    Hence, it was always for Mr Katragadda to discharge the evidentiary and persuasive burden of proving that he was the innocent victim of fraud in the sense that he did not have a state of mind which meant that he was complicit. This required proof of a fact… Further, as Sir Owen Dixon emphasised in a number of cases: when the law requires proof of any fact, the tribunal of fact “must feel an actual persuasion of its occurrence or existence before it can be found” (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 361 with emphasis added); a party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 (at 403)); and the “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied” (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (at 305)).

[78]    When this is understood, it might be thought that it was distracting for the primary judge to approach the issue on the basis of making a finding as to whether Mr Katragadda was indifferent, rather than the addressing the question, which properly reflects the reality of the forensic contest, as to whether, in accordance with s 140(1) of the Evidence Act 1995 (Cth), Mr Katragadda adduced sufficient material to persuade the Court, on the balance of probabilities, of the fact that he had not been complicit.

44    Each of Gill, Kaur FC and Katragadda concerned allegations of fraudulent conduct by S & S Migration. The Full Court of this Court in Maharjan has previously stated (at [40]):

There have been many cases in this Court and in the Federal Circuit Court involving the conduct of S & S Migration in visa applications. Various arguments have been made, and the decisions reflect the arguments made, and the fact finding, in each case. There have been no uniform outcomes, despite the underlying substratum of apparently dishonest conduct by S & S Migration which forms a backdrop to many cases.

45    The critical matter that is decisive in the appeal before me is the finding of the Tribunal, after assessing the evidence before it in detail, that it had “general reservations about [the appellant’s] claims” so that the appellant’s version of events was not accepted. In my view, the Tribunal’s credibility findings were reasonably open. The consequent finding of the Tribunal is not one of fraud, but that the appellant effectively authorised the migration agent to act at large, or as the Tribunal said, “in essence she agreed to whatever it was that Mr Aijan promised” and was “indifferent to the precise nature and contents of the visa application”.

46    The Tribunal did not accept that she was an innocent victim of any fraud. That is, it was not satisfied that the appellant had proved that she was not complicit in the migration agent’s conduct nor that she was not indifferent to the agent acting unlawfully or dishonestly. Rather, the appellant was found to have given the relevant information to the agent and let the agent choose the type of visa to be applied for (at least), or alternatively, to have actively consented to the application for a skilled visa. In addition, it was found to be significant that, once informed of the false statements in her application, the appellant did not seek to withdraw the application. These findings of fact are apparent from the following paragraphs of the Tribunal’s reasons:

7.    Essentially, Ms Kaur’s case is that the visa application is not valid − that it was lodged by a person named Mr Jeetinder Singh Aijan who held himself out as a registered migration agent when he was not and who did not follow Ms Kaur’s instructions to apply for an extension of her Student visa.

…

21.    In her oral evidence given on 2 May 2016, Ms Kaur insisted that she instructed Mr Aijan to apply for an extension of her Student visa but that he applied instead for the Subclass 485 visas. Ms Kaur maintained this position despite other evidence and information to the contrary that the Tribunal invited her to comment on, as set out below.

…

26.    Some of the above discrepancies in Ms Kaur’s case may merely be the result of an imperfect memory. The Tribunal does not accept that to be a reasonable explanation for the contradictions regarding the essential basis on which Ms Kaur instructed Mr Aijan. Her claim that she asked Mr Aijan to extend her Student visa and that he said he would do that is contradicted not only by her evidence to the MRT on 1 April 2012 but also by what her former representative said in his email to the MRT dated 31 March 2012. Whether or not Ms Kaur initially asked Mr Aijan to help her obtain an extension of her Student visa, considering the whole of the evidence, the Tribunal does not accept that Ms Kaur proceeded on the basis only that he would do that. Rather, whether Ms Kaur was “persuaded” to apply for a “work permit” or whether she agreed to Mr Aijan doing “something else” (that is, something other than applying for an extension of her Student visa) for her, the Tribunal finds that in essence she agreed to whatever it was that Mr Aijan promised. Obviously, as Ms Kaur confirmed that she visited Mr Aijan on her own, her husband, had he attended the hearing, would not have been able to give any direct evidence about that.

27.    The Tribunal accepts that Ms Kaur did not receive the Department’s first email, sent to the “wrong” email address in February 2012. But the Tribunal notes that Ms Kaur made no approach to the Department between the time she said she lost contact with Mr Aijan and the time she received the Department’s second email in May 2012. Ms Kaur’s explanation for that was not satisfactory and contributes to the Tribunal’s general reservations about her claims.

…

36.    A finding of fraud is a serious matter: SZFDE at [38]. Suspicion of fraud does not constitute proof: SZLIX at [23]. A high level of satisfaction is required: SZLIX at [33] citing Briginshaw v Briginshaw [1938] HCA 34. Care should be taken in drawing an inference of fraud from established facts: SZLIX at [26]−[30] citing Holloway v McFeeters [1956] HCA 25. In Singh, cited above, a case with some similar features to the present one, the Court did not interfere with a finding by the Federal Circuit Court that the agent (S&S Migration) did not act fraudulently (as opposed to mistakenly or negligently) in lodging an application for a Skilled visa.

…

43.    The visa application in the present case was evidently made online. The Tribunal accepts that Ms Kaur did not sign any visa application. The visa application that was lodged contained a number of false statements. Nevertheless, considering the whole of the evidence, the Tribunal finds that Ms Kaur provided her passport and relevant information to Mr Aijan and paid him. Ultimately she was indifferent to the precise nature and contents of the visa application. The Tribunal considers the evidence Ms Kaur gave the MRT on 1 April 2014 to be the more likely version of events. It May be that her intention initially was to obtain a further Student visa, but she went along with what Mr Aijan said he would actually be able to do for her. Significantly, Ms Kaur did not approach the Department after she was told that Mr Aijan had absconded after defrauding a number of clients.

…

44.    On the basis of the whole of the evidence, the Tribunal finds that Ms Kaur gave Mr Aijan general authority to act as her agent and to make the visa application and that he acted within the scope of the authority. Section 98 of the Act does not enable her now to disavow the application.

45.    If Mr Aijan was not a registered migration agent that of itself would not constitute fraud in the relevant sense. Ms Kaur’s evidence tends to show that the advice Mr Aijan gave was bad or negligent advice at least. A high level of satisfaction would be required for a finding of fraud on the part of the agent: see especially Kaur and Prodduturi at [31] and Singh at [48]. There would in any event not be fraud of the nature of the fraud in SZFDE. Further, the false information was not acted upon by any decision−maker see Kaur and Prodduturi at [39].

47    The Tribunal’s findings of fact were reasonably open and should not be disturbed. In those circumstances, s 98 of the Act does not enable the Appellants to deny the validity of their skilled visa applications. This is consistent with this Court’s finding in SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [16] that “[t]he appellant authorised and caused his migration agent to fill in the visa application form on his behalf. While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies.”

48    There is otherwise no dispute that the appellant did not and could not satisfy the criteria for the grant of a skilled visa.

49    Therefore, grounds one, three, four and five of the appeal are without merit.

50    However, having regard to the above factual findings, I note that neither the delegate nor the Tribunal in fact made a finding that the appellant did not satisfy PIC 4020. This may be relevant to any future visa applications the Appellants may make which requires the satisfaction of PIC 4020.

51    I will deal with ground two more briefly.

52    Ground two asserts that the Tribunal denied the Appellants procedural fairness, as it did not afford them the opportunity to give detailed evidence as to the authority (or lack of authority) provided to the agent for lodging the visa application. The appellant appeared at a hearing before the Tribunal on 2 May 2016 at which she was afforded the opportunity to present evidence and arguments in support of her application, including the allegation that the visa application was not valid. It is apparent from the Tribunal’s summary of the appellant’s oral evidence that she was afforded the opportunity to give evidence about her dealings with Mr Aijan and her claim that she did not provide Mr Aijan with the authority to lodge a skilled visa application. The assertion that such an opportunity was not afforded to the appellant should be rejected. Ground two is therefore also without merit.

53    I would therefore dismiss the appeal with costs.

Associate:

Dated:    29 June 2022