Zhang v Minister for Immigration and Border Protection [2016] FCA 921

Zhang v Minister for Immigration and Border Protection [2016] FCA 921

The appeal was dismissed because Trivedi and Patel were not distinguishable: the Tribunal made no finding that the appellant was unaware of Kevin's submission of the fraudulent document, and in any event a visa applicant's knowledge of fraudulent conduct by an agent is not material to the operation of PIC 4020. Grounds 2 and 3 were not permitted to be raised because they advanced a case not run below and depended on factual issues the Minister had not been required to meet. There was no finding by the Tribunal or the primary judge that Kevin perpetrated fraud on the appellant or the Department.

Jurisdiction
Australia
Judgment Date
09 August 2016
Procedural Posture
Migration Appeal From Decision of the Federal Circuit Court of Australia / Appeal to the Federal Court of Australia From Dismissal of an Application Under S 476 of the Migration Act 1958 (cth) Challenging a Tribunal Decision Affirming Refusal of a Skilled (residence) (class Vb) Subclass 885 Visa
Outcome
Appeal dismissed.
Legal Topics
['public Interest Criterion 4020' 'bogus Document' 'fraud by Migration Agent' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'skilled (residence) (class Vb) Subclass 885 Visa']
['migration Law' 'administrative Law' 'practice and Procedure'] ['public Interest Criterion 4020' 'bogus Document' 'fraud by Migration Agent' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'skilled (residence) (class Vb) Subclass 885 Visa']

Case Brief

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Procedural Posture

Migration Appeal From Decision of the Federal Circuit Court of Australia / Appeal to the Federal Court of Australia From Dismissal of an Application Under S 476 of the Migration Act 1958 (cth) Challenging a Tribunal Decision Affirming Refusal of a Skilled (residence) (class Vb) Subclass 885 Visa

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in applying Trivedi and Patel and in concluding that PIC 4020 could apply even if the appellant lacked knowledge of the bogus IELTS document submitted in support of his visa application.' 'Whether the appellant should be permitted to raise new appeal grounds alleging that the agent acted outside the scope of agency and that fraud had been perpetrated on the appellant and through him on the Department.' 'Whether the Tribunal or primary judge made or was required to make a finding that the appellant was the victim of fraud by the person called Kevin.']

Ratio Decidendi

The appeal was dismissed because Trivedi and Patel were not distinguishable: the Tribunal made no finding that the appellant was unaware of Kevin's submission of the fraudulent document, and in any event a visa applicant's knowledge of fraudulent conduct by an agent is not material to the operation of PIC 4020. Grounds 2 and 3 were not permitted to be raised because they advanced a case not run below and depended on factual issues the Minister had not been required to meet. There was no finding by the Tribunal or the primary judge that Kevin perpetrated fraud on the appellant or the Department.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs, including the costs thrown away by the adjournment granted on 5 July 2016 arising from the late production of the amended notice of appeal, as agreed or assessed."]