Australian Immigration Daily News

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”.

In other words, it was the decision of the Federal Circuit Court in the Singh case that an apparent “mistake” by a migration agent in filing the wrong type of visa application would not be sufficient grounds for the Court to set aside a decision of the MRT which affirmed the Department’s refusal of the application.

The facts in the Singh case were as follows: The applicant approached a migration agent and told him that he wanted to”convert” his visa from a “student dependent visa to a student visa” so that he could study for an automotive diploma. According to the applicant, he was told by the migration agent that the agent would consider his situation and advise him. 

 In the event, the visa application that the migration actually submitted was an application for a “Skilled (Provisional)” visa (subclass 4885). The criteria for the grant of this visa included a requirement that the applicant possess a “competent” level of proficiency in English. However, the application form that was submitted to the Department declared that the applicant had not undertaken an English language test. When the Departmental officer who was reviewing the application asked for evidence of the applicant’s (Mr Singh’s) English language ability, no evidence was provided.  The Departmental officer then refused the application, and the MRT affirmed the refusal.

It is important, in understanding the decision of the Federal Circuit Court, to note that the Court found that there was no evidence that the migration agent had acted either “unlawfully” or “fraudulently” in lodging the application for the skilled provisional visa rather than for a student visa. It is clear that the consequences where there has been an “innocent mistake” by a migration agent are different than where there has been “fraud” against either the client or the administrative or judicial review authority: a mere “mistake” by the agent may not be sufficient grounds for a decision to be overturned. In contrast, where there has been demonstrable “fraud” it may have the effect of “unraveling” the whole of the proceedings, and may thus result in a decision of the MRT being overturned or set aside.

I should note that in an article that will be forthcoming shortly, I will be devoting further attention to the question of how “fraud” by a migration agent can affect the outcome of review proceedings. In that article, I will be providing a review and analysis of the High Court in SZFDE v Minister for Immigration and Citizenship, (2007) HCA 35 (2007) 232 CLR 189.

Returning to the Singh case: The judgment of the Federal Circuit Court states that Mr Singh became aware that the application that had been made was not for a student visa, but was for a skilled provisional visa, even before an application for review was made to the MRT.  Nonetheless, he did not notify the MRT that an incorrect visa had been applied for. The applicant’s failure to take “remedial action” to let the MRT know about the mistake turned out to be fatal to his appeal in the Federal Circuit Court. The Court concluded that both the Departmental officer who had reviewed the application, and the MRT, were entitled to assume that the migration agent had acted within the scope of his authority, and thus to determine the application for a skilled provisional visa as if that were the visa that the applicant actually sought to obtain.

The proceedings that were conducted in this case before the MRT and the Federal Circuit Court seem hard, at least from the perspective of an “outsider” to the litigation, to be difficult to understand.  It appears that it would have been extremely unlikely for the MRT to remit the case back to the Department for the grant of a student visa when the application that was made was for a skilled visa.  Thus it seems that the only rational course that would have been open to the MRT would have been to assess whether the application satisfied the criteria for a skilled visa. Since it did not and could not due to the applicant’s failure to demonstrate that he possessed the required level of proficiency in English, the only alternative that was available to the MRT would have been to affirm the Department’s refusal.

The judgment of the Federal Circuit Court does not discuss why the applicant continued with these review proceedings after it was discovered that an application had been lodged on his behalf for which he was not eligible.  It does appear that the review proceedings were “doomed to failure” from the start, and that it would have been far more sensible, once it was learned that the “wrong” application had been filed, simply to submit the application for the visa that the applicant had wished to obtain.

There are, in any event, some pretty clear lessons for both RMAs and clients alike from this decision.  It is obviously essential that there be frank, open and honest communication between the RMA and the client about what type of visa is being sought.  RMAs obviously need to be conscientious to follow the client’s instructions about what type of visa is to be applied for (and to circulate the application to the client for final approval before it is submitted to the Department). Likewise, clients can put themselves at risk by engaging an agent and leaving the process entirely in the agent’s hands: it is the client’s future after all, and the agent should insist that the client be a full participant, and fully informed about, the visa application process.

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