Australian Immigration Daily News

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.

Moreover, as referenced in the Singh case, a number of cases have come before the courts where arguments have been made that “fraud” should be viewed as a reason for changing the outcome before the MRT (for example: false information submitted to the MRT with the consent of the applicant; paying bribes to get into Australia and apply for a visa; knowingly submitting false information; knowingly concealing details of the applicant’s employment).

The High Court’s decision in SZFDE v Minister tells us that when a fraud by a migration agent interferes with an applicant’s rights to “procedural fairness” before the MRT, an unfavourable determination against the applicant by the MRT can be reversed.

The facts in SZDFE v Minister were that the primary visa applicant was a young married woman from Lebanon who had sought a protection visa; her husband and children based their applications for protection visas on their status as family members of the primary applicant. She had sought protection on the basis of her claim that she had a well –founded fear of persecution due to her published views concerning the position of women in the Islamic tradition.

The visa applicant and her family had engaged a migration agent to assist with an application for review before the MRT after their applications for protection visas had been refused in the first instance by an officer of the Department.  The agent represented himself to be a registered migration agent and a solicitor, and charged the family about $13,400 for his services in the matter. However, prior to the time that the application for review was made to the MRT, the agent’s practicing certificate as a lawyer had been cancelled by the NSW Law Society. Furthermore, the agent’s registration as a migration agent had also been cancelled by the Office of the Migration Agents Registration Authority before the application for review was made. So as a matter of fact the agent was neither lawfully acting as a solicitor or as a RMA.

However, it was not specifically the fact that the agent had misrepresented himself as a solicitor and RMA that led the High Court to conclude that he had committed a fraud which warranted the vacation of the negative decision that the MRT to affirm the refusals of the protection visas.

Rather, it was the advice that the agent gave to the primary visa applicant not to attend a hearing before the MRT that proved decisive.  The agent’s advice in regard to appearing at the hearing was given in the following terms (as recounted in the High Court’s judgment):

“It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the minister. I am worried if you go…you will say something in contradiction to what I will write. Don’t worry. I’m doing what is best for you.”

The High Court observed that it was “open” to draw an inference that the agent’s motives in giving this “advice” were essentially to “cover his tracks” and to protect himself from the possibility that his unlawful conduct in continuing to act as a solicitor and to give migration advice might be discovered if he or the applicant attended the hearing before the MRT.

In the event, the fact that the visa applicant did not attend the hearing at the MRT upon the advice of the agent turned out to be fatal to her application for a protection visa.  The MRT’s decision was based in part on the fact that as a result of her failure to appear at the hearing, she had not “given the Tribunal an opportunity to explore aspects of her claims with her.  A number of relevant questions are therefore left unanswered”.  It was thus plain from the text of the MRT’s decision that the outcome of the hearing could very well have been different if the applicant had attended the hearing, and had thus enabled the presiding Tribunal member to “explore her claims” and to seek answers to the questions relevant to the determination of her visa application.

Thus, what was really critical in the view of the High Court was that the agent’s fraud had had the effect of ”stultifying” (in other words, making meaningless in the circumstances) the provisions of the Migration Act that are intended to ensure that visa applicants are afforded “natural justice” or “procedural fairness” before the MRT proceeds to make a decision.  These provisions, as noted by the High Court, are embodied in section 425 of the Act, which provides that the MRT must invite an applicant to appear before it to give evidence and present arguments relating to the issues unless the MRT considers that it should decide the review in the applicant’s favour on the basis of the material that is before it.

The principle to be drawn from the High Court’s decision in SZFDE v Minister (and from “progeny” of this decision like the Singh case discussed in my earlier post) is that not every type of fraud or mistake by a migration agent will create good enough ground to enable an adverse decision of the MRT to be overturned. However, what is clear is that where the fraud operates to deprive the applicant of their rights to “natural justice” – in other words, their rights to present evidence and arguments in support of their case to the Tribunal – then, in that instance, the fraud will almost certainly lead to the vacation of the negative MRT decision.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837