Bajwa& Ors v Minister for Immigration

[2016] FCCA 3167

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAJWA& ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3167

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.338, 347, 348

Migration Regulations 1994, reg.4.02

First Applicant: AMANJIT KAUR BAJWA

Second Applicant: JASWINDER SINGH

Third Applicant: AMRITPAL KAUR BAJWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2576 of 2014

Judgment of: Judge Riethmuller

Hearing date: 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Melbourne

Delivered on: 15 July 2016

REPRESENTATION

The Applicants appeared In Person

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The Application be dismissed.

2. The First and Second named Applicants pay the First Respondent’s costs fixed in the sum of $6,194.00; AND THAT enforcement of such costs to be stayed until the latter of 3 months or the determination of any further visa application or review thereof by the applicant (provided it is lodged within 3 months), or the conclusion of any proceedings against their former migration agent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2576 of 2014

AMANJIT KAUR BAJWA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore)

(As corrected)

1. This is an application for judicial review of a decision made by the Migration Review Tribunal as it was then called on 29 November 2014. 

2. The matter has a very unfortunate history, as is set out in the statement that the applicant made to the department, which appears at page 64 of the court book.  From that long and detailed statement it appears clear that at best, a registered migration agent had acted negligently and at worst fraudulently, in obtaining large amounts of money from the applicant on the promise of managing her visa application to obtain a work visa in Australia.

3. The particular migration agent, I am told, has already been the subject of proceedings by the Department with respect to other matters.  Even if he is no longer a registered agent, if he was registered at the time he would have had an insurance policy under the compulsory insurance scheme for registered agents.  It appears to me that the applicants would have a cause of action, at least on their version of events, against him and his insurer for damages as a result of the events that took place.  This, however, does not answer the question I am required to determine, which is whether or not the applicants can obtain orders to judicially review the decision of the Tribunal made 29 November 2014. 

4. The application to the Tribunal was made on 9 July 2013 to review a decision of a delegate with respect to a subclass 457 temporary work (skilled) visa. 

5. The Tribunal only has jurisdiction to consider reviews pursuant to sections 347 and 348 of the Migration Act 1958.  These sections must be read in conjunction with section 338 and regulation 4.02 of the Migration Regulations 1994.  The sections and regulation are very difficult to read and follow.  In substance, for this particular type of visa application, the Tribunal only had jurisdiction to consider reviewing the delegate’s decision if the applicant was: (a) at the time of application to the Tribunal, sponsored by an approved sponsor; or (b) there was an application for a review of a decision not to approve a sponsor that was pending but not yet determined.  In simple terms – the applicant could only apply to the Tribunal if she either had an approved sponsor or there was an application by a sponsor for approval or a review pending with respect to a decision not to approve a sponsor. 

6. In this case the sponsor’s application had been refused on 14 May 2013.  Therefore at the time that the first applicant applied to the Tribunal in July 2013 there was neither an approved sponsor, nor any pending application for sponsorship, nor any pending application to review the decision not to approve the sponsor that the applicant had relied upon.  The Tribunal wrote to the applicants, asking them to comment on the validity of the application.  The applicant referred to the allegations that she had made to the department about the conduct of the agent in 2013 as she had no answer to this defect in the application.

7. Even if I were to proceed on the basis that the agent had acted fraudulently, it is difficult to see how that fraud amounts to a fraud upon the Tribunal in this case.  That is, even if the agent had fraudulently taken the applicant’s money and fraudulently concocted the application for a sponsor, the applicant herself remained in the position where she was not able to invoke the jurisdiction of the Tribunal.  This is a somewhat-different scenario to a fraud on a Tribunal where an agent, for example, fraudulently advises a person not to attend the Tribunal, thereby resulting in the Tribunal’s conduct of the hearing miscarrying, not through any fault of the Tribunal but as a result of a fraud perpetrated by another resulting in the Tribunal not according a person procedural fairness.  A similar argument cannot be made in circumstances such as this case.  In the circumstances I see no error on the part of the Tribunal and therefore must refuse the application for judicial review. 

8. I also note that the applicant has since obtained a nomination from a pizza restaurant, which application was made on 27 June 2016, in an effort to put her visa application back in order.  This is not sufficient, (given the way that the Regulations work) to enable the matter to be referred back the Tribunal with an order from this court overturning the decision of 29 November 2014 as a sponsor is required at the time of the application, not just at the time of the Tribunal decision.  It may well, however, be a significant factor if the applicant makes application for the exercise of a ministerial discretion in her case, given the circumstances that have taken place.  It may also be a matter that would be relevant in determining what, if any, alternative visa application she may be able to pursue in order to obtain a visa to remain in Australia with her husband and child. 

9. The applicant also raised before me issues concerning the circumstances that she and her family may find themselves in if they must return to India, given that the marriage between the applicant and her husband is between different castes and the fear that they express concerning the events that might take place if they were to return.  These are again not matters that would found judicial review of this particular decision but may found a basis for some form of protection visa.  However, these are matters that would need to be carefully considered by the applicant and/or any adviser. 

10. Finally I note that the solicitor for the Minister has undertaken to provide details of community legal services that may provide some assistance to the applicant, although it appears that she has attended upon other lawyers who have given her correct advice about this particular proceedings and its inability to succeed.  It seems to me that her best current avenues are pursuing a claim against the agent and/or the insurer and obtaining advice about what form of visa application she is most likely to be successful in if she applies for a new visa. 

    [further argument ensued]

11. In this matter the Minister has been entirely successful, and therefore costs ought to follow the event.  The amount sought is less than the scale amount at $6,194.  I would therefore order that the applicant pay the Minister’s costs fixed in that amount. 

12. Having regard to the circumstances that have led to the case coming before the court, the likelihood that any unpaid costs order may impede a subsequent visa application, the circumstances of the applicant and her husband, and the extent of the amounts of money that were extracted from them by the agent who caused or at least contributed to these difficulties, it seems to me that in this case the circumstance warrants consideration of when those costs ought to be paid.  In this case I am persuaded that it is appropriate to stay the recovery of the costs until the conclusion of any subsequent visa application and review thereof, if the application is made within three months, and alternatively the conclusion of any proceedings against the migration agent.  The stay should only operate until the earlier of the two events nominated. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  7 December 2016

Correction

Paragraph 2 of the Orders has been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to include the words “or the conclusion of any proceedings against their former migration agent.”