In what circumstances will a fraud committed against a client by a migration agent be cause for an adverse decision by the Migration Review Tribunal to be overturned by the Federal Courts?

This issue was considered a few years ago by the High Court, in the case of SZDFE v Minister for Immigration and Citizenship (2007) HCA 35 (2 August 2007). It remains a timely issue. 

As we have seen in the article that I posted earlier this week, it was an important factor in the decision of the case of Singh v Minister for Immigration & Anor, (2014) FCA 2867 which was handed down as recently as December 2014 (in the Singh  case, it was held that an “innocent mistake” by a migration agent in filing an application that was different from the one that his client expected him to make was found to be conduct that was short of fraud, and therefore insufficient to prompt a reversal of an MRT decision.

The number of 457 applications surged 15.3% in the year ending March 2015 but the number of actual grants slipped by over 4.1% according to the latest statistics released by the department of immigration.

There were 40,870 subclass 457 primary visa applications lodged in that time, an increase of 15.3 per cent from 35,440 lodged in the same period in the previous year.

Developer Programmers represented the largest occupation of total primary visa grants (4.9 per cent), a 39.5 per cent increase from the same period in the previous year. Cooks recorded the second largest primary visa grants (4.5 per cent), followed by Café or Restaurant Managers (3.9 per cent), a respective decrease of 18.9 per cent and 11.8 per cent when compared to the same period.

The top three sponsor industries for primary applications granted were accommodation and food services (37%), IT (31%), and professional, scientific and technical services (27%).

India was the top country of origin for sc457 workers. Almost half the number of grants were to applicants from India (24.3 per cent), the United Kingdom (17.5 per cent) and the People’s Republic of China (6.7 per cent). According to the figures around 25% of 457 visa holders are foreign students and travellers.

Given that unemployment rate in Australia is sitting above 6%, the unions have led a campaign against foreign labour despite industry groups saying that the sc457 visa is used to fill actual skill gaps in Australia. The DIBP has however been steadily increasing its scrutiny of sc457 applications in recent times.

The AAT president has warned of delays and backlogs in the migration review decision due to the lack of members while an opinion piece in The Australian suggests that the purge of members may have been due to the tribunals overturning far too many of DIBPs decisions on appeal.

The amalgamation of the Migration Review Tribunal (MRT) - Refugee Review Tribunal (RRT) and Social Security Appeals Tribunal (SSAT) with the Administrative Appeals Tribunal (AAT), is a move that has been described as the biggest shake-up of Australian administrative law in 40 years.

Under the new system, the AAT will hear challenges to government decisions on visa applications and social security benefits, in addition to its existing jurisdiction over workers compensation, disability support, freedom of information requests and veterans’ entitlements.

It is estimated that the new AAT will adjudicate 40,000 applications every year and yet save $7.2 million over four years in “shared back-office functions and property holdings”.

AAT president and Federal Court judge Duncan Kerr will retain leadership of the AAT

What happens when a client thinks that her or his migration agent has submitted an application for one type of visa, when in reality the migration agent has submitted an application for an entirely different type of visa, and the client is not eligible for the visa that has been applied for?  If the application for the visa is refused, and the refusal is then affirmed by the Migration Review Tribunal, can it be said that the review proceedings before the MRT have been “vitiated” so that the decision by the Tribunal should be “overturned”?

These questions were considered by the Federal Circuit Court of Australia in a case that was decided toward the end of last year, Singh v Minister for Immigration & Anor, (2014) FCCA 2867 (16 December 2014). The Court answered them by quoting from an earlier judgment of the Full Court of the Federal Court, Minister for Immigration and Multicultural Affairs v SZFDE, (2006), in which Justice French made the following observations:

“There are sound policy reasons why a person whose conduct before an administrative tribunal has been affected to her or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made”.

TAFE NSW has released a 457 visa contributions report on Training Benchmark A and Training Benchmark B.  To read the full report click on the link below:

457_Visa_report---sydney-tafe.pdf