DEVI v Minister for Immigration - [2016] FCCA 2467

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2467

Catchwords:
MIGRATION – Where migration agent engaged in fraud – whether fraud gave rise to jurisdictional error – where applicant not eligible nor ever would be eligible for visa sought in application – whether relief sought futile.

Legislation:

Migration Act 1958 (Cth), s.98

Migration Regulations 1994 (Cth) Schedule 2 cll. 485.214; 485.221(1), 485.224, Schedule 4 cl. 4020(1), 4020(4)

Cases cited:
Kaur v MIBP; Prodduturi v MIBP [2013] FCCA 1805
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
Sran v MIBP [2013] FCCA 37
Singh v MIBP [2014] FCCA 1816

First Applicant:

RANI DEVI

Second Applicant:

VIRENDER KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 601 of 2015

Judgment of:

Judge Jarrett

Hearing date:

21 September 2016

Date of Last Submission:

21 September 2016

Delivered at:

Melbourne

Delivered on:

23 September 2016

REPRESENTATION

The Applicants appeared in person with the assistance of a Hindi interpreter.

Counsel for the First Respondent:

Ms Lucas

Solicitors for the First Respondent:

Australian Government Solicitor

The Second Respondent entered a submitting appearance.

ORDERS

The application filed on 25 March, 2015 be dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 601 of 2015

RANI DEVI

First Applicant

VIRENDER KUMAR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 1 April, 2011 the first applicant and the second applicant, her spouse, applied for Skilled (Provisional) (Class VC) visas. Or at least so it seemed. On 14 April, 2012 a delegate of the first respondent refused to grant the applicants the visas. On 9 March, 2015 a migration review tribunal affirmed the delegate’s decision. The applicants now seek judicial review of the tribunal’s decision.
The visas applied for had two subclasses – subclass 485 and subclass 487. The applications were assessed by the first respondent’s delegate against the criteria for each subclass. The first applicant sought to demonstrate satisfaction of the primary criteria applicable to the grant of the requested visa. The second applicant relied upon being part of the first applicant’s family unit and did not seek to demonstrate satisfaction of any of the primary criteria for the grant of the relevant visas.
To secure the visas the first applicant needed to meet, amongst other criteria, the requirements of cl. 485.214 and cl. 485.224 of Schedule 2 to the Migration Regulations 1994 (Cth). The former required her to demonstrate that, as at the time of her visa application, she had applied for a skills assessment by a body called Trades Recognition Australia. The latter, by reference to public interest criteria 4020 (in Schedule 4 to the Regulations), required the tribunal to be satisfied that there was no evidence before the Minister that the applicant had given or caused to be given to the Minister a bogus document or information that was false or misleading in a material particular in relation to the application for the visa.
The applicants’ visa applications were lodged by a migration agent. The first applicant’s application claimed that she had applied for a skills assessment by TRA at the time of her visa application. The visa application included a reference number that purported to be a reference number for her skills assessment application with TRA. However, that information was false. She had made no such application. The first respondent’s delegate, and subsequently the tribunal, determined that the first applicant had not satisfied PIC 4020(1) because she had provided false and misleading information to the Department as part of her application. Her application was refused on that basis. Consequently, so too, was that of the second respondent.
The applicants claim that they did not authorise the relevant migration agent to make the visa applications on their behalf, or to submit any false information to the first respondent’s Department. Before me, the first applicant reiterated that she had not provided any false information to the Department, nor had she intentionally mislead the Department about anything. It was all the doing of the migration agent, who had since left the country and returned to India.
The issue in this application is whether the tribunal committed any jurisdictional error when it determined that the applicants were fixed with the conduct of the agent so that it could be properly said that the first applicant had given, or caused to be given, to the Minister information that was false or misleading in a material particular in relation to the application for the visa.
Both the first respondent’s delegate and the tribunal decided that the applicants were bound by the conduct of the agent and determined that the first applicant had given or caused to be given to the Minister information that was false or misleading in a material particular in relation to the application for the visa.
Although I am not concerned with the delegate’s decision, it is worth recording that the delegate determined that the first applicant met neither cl. 485.214 nor cl. 485.224 of Schedule 2 of the Regulations. She was not entitled, therefore, to a subclass 485 visa. The delegate determined that because the applicants had not paid the requisite fee, there was no valid application for a subclass 487 visa.
The tribunal had access to the material before the first respondent’s delegate and additional material, including a written statement from the applicants and further oral evidence from the first applicant obtained at a hearing held by the tribunal for that purpose.
The applicants’ gave evidence that they had met with an agent called Jeetender at an organisation called S & S Migration who promised the applicants that he would provide them with a 4-year work visa which would enable them to work and study. He did not however, explain the visa requirements to the applicants. They paid him $2,500 and he took the first applicant’s academic documents, her IELTS results and the applicants’ passports. The applicants did not fill out any of the visa application details themselves. The agent lodged the applications for them on 1 April, 2011.
They also gave evidence that Jeetender did not show them the 457 visa application form and they did not ask to see it. They told the tribunal that they had applied for their student visas themselves, with some help from agents. The first respondent said that they were able to fill out those detailed applications themselves but stated that Jeetender told them he would take care of the work visa applications so they did not fill anything out themselves.
The first applicant told the tribunal that she was able to enrol in other courses after she received a letter confirming that she had a bridging visa A. She gave evidence that she thought that what Jeetender had told her was correct and she did not attribute any significance to the fact that the bridging visa A letter referred to the fact that it had been granted due to their application for a General Skilled Migration (GSM) visa (of which a subclass 457 visa was one type).
The applicants gave evidence to the tribunal that after hearing rumours that Jeetender had left the country for good, they became unsettled about the status of their visa application and approached the Department for clarification. They were advised that they had applied for a subclass 485 visa and they realised that the email address provided in the online application form for them was fake, as was the TRA reference, as neither of them had applied to the TRA at any time.
As to the visa applications, the tribunal found:
a)that the applicants authorised S & S Migration to make the visa applications on their behalf;
b)that they were indifferent to its contents, in that they did not ask to see the application forms, and
c)that the applicants caused the false and misleading information to be given to the Minister “through their engagement of S & S Migration and the operation of s.98 of the Migration Act 1958 (Cth)”.
The tribunal concluded that there was evidence that the first applicant caused to be given to the Department information that was false or misleading in a material particular and therefore did not meet PIC 4020(1).
The tribunal considered whether it should waive the requirements of PIC 4020(1) (as it might do: see PIC 4020(4)), but determined not to do so. No complaint is made before me about that aspect of the tribunal’s decision. Having regard to the tribunal’s reasons for decision, nor could there be.
The applicants’ ground of review contained in the Application for Review is a complaint that the tribunal did not properly consider the first applicant’s evidence that they were the victims of Jeetender’s fraudulent conduct. The ground, as expressed by the applicants, is:
The MRT erred in not giving consideration to the evidence that the Applicant being myself did not instruct S & S Migration to lodge any TRA application. The MRT also erred in that not considering the Applicant being myself never instructed the Migration Agent S & S Migration to provide any fraudulent document to the First Respondent. Accordingly MRT failed to give consideration to the evidence as a matter of law.
The tribunal plainly gave consideration to the applicants’ evidence. Indeed, the tribunal accepted the applicant’s evidence. It was on the basis of the applicants’ evidence that the tribunal made the findings that it did. Those findings were open to the tribunal having regard to the evidence before it. Moreover, the legal consequences of those findings as identified by the tribunal were correct having regard to the authorities considered by the tribunal, namely Kaur v MIBP; Prodduturi v MIBP [2013] FCCA 1805; Prodduturi v MIBP [2014] FCA 624; Sran v MIBP [2013] FCCA 37 and Singh v MIBP [2014] FCCA 1816.
Moreover, PIC 4020(1) and 4020(4) aside, because the applicant had neither applied for nor obtained a skills assessment from TRA at the relevant times, she could not demonstrate satisfaction of cl. 485.214 or cl. 485.221(1) of Schedule 2 to the Regulations and the tribunal was bound to affirm the delegate’s decision to refuse the visas in any event. Thus, the present application lacks any utility because even if this Court was to set aside the tribunal’s decision for the reasons advanced by the applicants, the tribunal upon a rehearing of the application would be bound to affirm the delegate’s decision: cf. Prodduturi v MIBP [2014] FCA 624 at [30] – [39].
The tribunal’s decision is not attended by jurisdictional error. The application for review must be dismissed with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 September, 2016.

Date: 23 September 2016