Ghansham v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 633

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Ghansham v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 633

File number: MLG 1716 of 2018

Judgment of: JUDGE RILEY

Date of judgment: 20 July 2023

Catchwords: MIGRATION – Administrative Appeals Tribunal – temporary partner visa – whether the Tribunal unreasonably failed to inform the applicant that his evidence needed to satisfy the requirements of IMMI 12/116 – whether there was a fraud on the Tribunal.

Legislation:
Migration Act 1958 s.65, 358(1), 425 and 426A

Migration Regulations 1994 reg 1.23, schedule 2 cl.820.221

Legislative Instrument IMMI 12/116

Cases cited:
Hinton v Minister for Immigration and Border Protection (2015) 146 ALD 184; [2015] FCA 408

Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; (2020) 385 ALR 212; [2020] HCA 46

Minister for Immigration v Gupta [2022] FCAFC 51

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; (2007) 96 ALD 510; (2007) 237 ALR 64; (2007) 81 ALJR 1401; [2007] HCA 35

Division: Division 2 General Federal Law

Number of paragraphs: 183

Dates of hearing: 22 and 23 November 2022 and 31 January and 19 April 2023

Place: Melbourne

Counsel for the Applicant: Angel Aleksov

Solicitor for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Jonathan Barrington

Counsel for the Second Respondent: No appearance

Solicitor for the First and Second Respondents: Mills Oakley
ORDERS

MLG 1716 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GHANSHAM GHANSHAM

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

judge riley

DATE OF ORDER:

20 July 2023

THE COURT ORDERS THAT:
1.The application filed on 18 June 2018 and amended on 26 July 2022 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)..

REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION

This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa pursuant to s.65 of the Migration Act 1958 (“the Act”).
The issues before the court are:
(a)whether the Tribunal acted unreasonably in not identifying for the applicant that his claims of family violence needed to be made in accordance with the evidential requirements under legislative instrument IMMI 12/116; and
(b)whether the decision of the Tribunal was affected by the fraud of one or two of the applicant’s migration agents.
In relation to his partner visa application, the applicant had help from three migration agents, namely:
(a)Anthony Lowen Clarke, who was formally appointed as the applicant’s agent and who lodged the initial partner visa application;
(b)Ketan Juvekar, who was formally appointed as the applicant’s agent and who attended the Tribunal hearing with the applicant; and
(c)Ratna Reddy Singareddy, who was not formally appointed as the applicant’s migration agent but who emailed the Tribunal a written submission after the Tribunal hearing.
It was not alleged that Mr Clarke was fraudulent. Sadly, Mr Juvekar died prior to the hearing in this case. The applicant alleged that Mr Singareddy and, possibly, Mr Juvekar perpetrated fraud on the applicant and the Tribunal.
BACKGROUND
In his written submissions filed on 20 October 2022, the Minister set out the background to this matter as follows:
2.The applicant is a male citizen of India. He applied for the visa on 16 June 2014 (which was actually a combined application for the visa and a Partner (Residence) (Class BS) (Subclass 801) visa application). He was sponsored by Ms Gurdeep Kaur, a permanent resident of Australia.
3.On 11 March 2016, the Department wrote to the applicant inviting him to comment on information obtained from a site visit and from Centrelink to which the applicant’s representative provided a response on 29 March 2016.
4.On 25 May 2016, the delegate of the first respondent refused to grant the visa, finding that there was no evidence that the parties saw the relationship as a long-term one, that they drew emotional support and companionship from each other, or that they had a commitment to a shared life together.
5.On 31 May 2016, the applicant sought review of the delegate’s decision with the Tribunal.
6.On 24 February 2018, the applicant’s representative wrote to the Tribunal advising that the sponsor was withdrawing her sponsorship as the relationship had broken down and there was an intervention order preventing the applicant from staying at her house.
7.The applicant subsequently appointed a new migration agent and provided a psychological report dated 6 March 2018 by Carlo Saba and the intervention order as well as documents going to the genuineness of the relationship.
8.On 16 March 2018, the applicant appeared at a hearing before the Tribunal. The Tribunal also took oral evidence from Lovrjot Dhunna, Ravinder Singh, and Gurdial Singh.
9.On 12 April 2018, the applicant’s representative provided to the Tribunal a statutory declaration for family violence by the applicant, an extract from the Magistrates’ Court indicating that the family violence application against the applicant was struck out, and a subsequent report from Carlo Saba dated 6 April 2018.
10.On 8 May 2018, the Tribunal invited the applicant to comment on the section 375A certificate, providing a copy of the certificate with the invitation. The letter explained that the member had found the certificate to be invalid and that the documents covered by the certificate were not relevant as sponsorship had been withdrawn.
11.On 13 May 2018, the applicant responded to the letter, however his response did not address the certificate but rather made submissions as to his family violence claim and the genuineness of the relationship. The applicant’s representative also provided a response on 17 May 2018.
12.On 29 May 2018, the Tribunal affirmed the decision under review.
13.The Tribunal noted that a s 375A certificate was attached to the Departmental file and that it had sent a letter to the applicant informing him of the certificate and that it found it to be invalid. The Tribunal noted that the applicant’s response requested the Tribunal to consider compelling and compassionate circumstances, which it found was not within the scope of the applicant's particular circumstances and therefore did not consider. The Tribunal noted that the applicant provided additional information which did not comment on the certificate and that the applicant’s representative also provided a response. The Tribunal found that the material covered by the certificate was not relevant to the matters at hand, namely whether there had been family violence, and therefore did not provide the material to the applicant to comment.
14.The Tribunal noted that the sponsor had withdrawn her sponsorship of the applicant and the applicant accordingly claimed at the hearing that he was a victim of family violence. The Tribunal noted that the applicant was seeking to establish family violence on the basis of a non-judicially determined claim of family violence pursuant to regulation 1.23(9) and was seeking to rely on the evidence set out in regulation 1.24, namely a statutory declaration under regulation 1.25 and evidence of a type and number specified within Legislative Instrument IMMI 12/116.
15.The Tribunal noted that a statutory declaration and psychologist’s report was provided on 12 April 2018. The Tribunal found that it had received a statutory declaration from the applicant which stated that the sponsor was the perpetrator of the violence, however the psychologist’s report did not mention domestic violence but rather focused on the applicant's challenges in responding to the breakdown of the relationship. The Tribunal also considered the previous report provided by the psychologist but found that this report discussed the claims of violence by the applicant against the sponsor.
16.The Tribunal noted that the evidentiary requirements of IMMI 12/116 required the report from the psychologist to include a stated opinion that the alleged victim was subject to family violence, provide reasons for their opinion, and identify the alleged perpetrator. In the absence of these elements, the Tribunal found the applicant had not provided evidence of the type described in IMMI 12/116. The Tribunal found that the evidence presented did not meet regulation 1.24 and therefore a non-judicially determined claim of family violence had not been made. The Tribunal found that the applicant did not meet clause 820.223(3) and there was no evidence that he met any of the alternative sub criteria.
(citations omitted)
By way of further background, the applicant was married to Ranjeet Kaur on 24 May 2008. The applicant arrived in Australia on 6 February 2009 as a dependent on Ranjeet Kaur’s student visa. The applicant’s dependent student visa was cancelled on 19 October 2010. The applicant and Ranjeet Kaur divorced on 13 August 2013.
The applicant married Gurdeep Kaur, an Australian citizen, on 19 May 2014. On 9 June 2014, the applicant lodged an application for a partner visa, which is the subject of this review. In making that application, the applicant was assisted by a migration agent, Mr Clarke. A delegate of the Minister refused the applicant’s partner visa. The applicant then applied for review by the Tribunal.
On 8 June 2017, the Tribunal invited the applicant to a hearing on 27 June 2017. On 20 June 2017, the Tribunal advised the applicant that the hearing could not proceed on the scheduled date, for reasons that were not explained. On 14 December 2017, the Tribunal invited the applicant to a rescheduled hearing on 16 March 2018.
On 15 December 2017, Gurdeep Kaur wrote to the Tribunal saying that she was not interested in spending the rest of her life with the applicant. By email dated 24 February 2018, Mr Clarke informed the Department that the relationship between the applicant and Gurdeep Kaur had broken down and asked the Department to action the sponsorship withdrawal as soon as possible. By letter dated 24 February 2018, Gurdeep Kaur informed the department that there was an intervention order preventing the applicant from staying at her home and that the applicant had been seeing another woman.
On 13 March 2018, the applicant appointed Mr Ketan Juvekar as his migration agent. Mr Juvekar sent to the Tribunal a psychologist’s report that said that the applicant had reported to the psychologist that:
(a)Gurdeep Kaur had falsely accused the applicant of “beating her up”; and
(b)the applicant was suffering disturbed sleep and other symptoms as a result.
The psychologist’s report was patently inadequate to establish the family violence exception, not least because it said that, according to Gurdeep Kaur, the applicant was the perpetrator of family violence rather than the victim of it. The Tribunal hearing proceeded on 16 March 2018 with Mr Juvekar as the applicant’s agent in attendance.
The Tribunal allowed the applicant time to provide further evidence, which he did, on or about 12 April 2018. He provided a statutory declaration from himself in which he described the family violence he had experienced as mental harassment, arguments and being thrown out of the house. The applicant also provided a further report from the same psychologist in which he said that the applicant had reported significant challenges in managing his emotional and psychological responses to the breakdown of his marriage.
The documents provided by the applicant to establish the family violence exception were unable to meet the requirements of IMMI 12/116 for several reasons, including that the psychologist merely provided letters rather than a statutory declaration.
On 8 May 2018, the Tribunal wrote to the applicant, under cover of a letter to Mr Juvekar, inviting him to comment on certain information and noting that:
This material [under a s.375A certificate] is not relevant as the sponsorship has been withdrawn and as such cl.820.221(1) is not met. The genuineness of the relationship will be considered if and when the statutory requirements for family violence as per cl.829.221(3) (sic) are met.
The applicant’s response to the invitation to comment was under the applicant’s name but sent by email from Mr Singareddy. The applicant had not formally appointed Mr Singareddy as his agent. Subsequently, correspondence between Mr Juvekar and the Tribunal continued.
LEGISLATIVE FRAMEWORK
The parties did not dispute the Tribunal’s description of the basic legislative framework that applied in the present case which was as follows:
2.The applicant applied for the visa on 16 June 2014 on the basis of his relationship with his sponsor, Gurdeep Kaur. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
3.The primary criteria must be satisfied by at least one applicant. … Relevantly to this matter the primary criteria include cl.820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.
…
12.In the present case, the sponsor, Gurdeep Kaur, has withdrawn her sponsorship of the applicant by way of a letter to the Department and Tribunal via her representative and another from herself to the Tribunal both dated 24 February 2018. The reasons given for the withdrawal of sponsorship are that the marriage has broken down. The primary criteria to be satisfied at the time of application are to be found in cl.820.211 and at time of decision cl .820.221. At the time of decision c.820.221(1)(a) requires that the applicant continues to meet the requirements of the applicable clause under 820.211 which in this instance is cl.820.211(2). This clause has under sub-section (c) the requirement that the applicant is sponsored. With the withdrawal of sponsorship the applicant does not meet cl.820.221(1).
13.At the hearing the applicant claimed that his relationship with Gurdeep Kaur was genuine but that he has been the victim of family violence.
14.The regulations allow for such circumstances. While the applicant no longer meets cl.820.221(1) and there is no evidence that he meets subclause (2), the claim is that subclause (3) is enlivened as it states that the applicant meets the requirements if the sponsoring partner or the applicant has suffered family violence committed by the sponsoring partner.
15.Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Family violence is defined in r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).
16.In the present case the applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.
Has a claim of family violence been made under the regulations?
17.Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided.
18.The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116). IMMI 12/116 specifies a minimum of two items of evidence from the list in Schedule 1 to the instrument, and that no more than one of each type may be presented for the purposes of r.1.24(b).
19.A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).
Legislative instrument IMMI 12/116 is as follows:
I, CHRIS BOWEN, Minister for Immigration and Citizenship, acting under paragraph 1.24(b) of the Migration Regulations 1994 (‘the Regulations’):
1.SPECIFY for the purpose of paragraph 1.24(b) the types of evidence as acceptable evidence at Schedule 1.
2.SPECIFY that a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence may be presented for the purposes of paragraph 1.24(b).
This instrument, IMMI 12/116, commences on 24 November 2012, immediately after the commencement of Migration Legislation Amendment Regulation 2012 (No.5).
…
Schedule 1

Type of Evidence includes the following detail

Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is:

·     registered as a medical practitioner and is performing the duties of a medical practitioner, or

· registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse.

·     Identifies the alleged victim, and

·     Details the physical injuries or treatment for mental health that is consistent with the claimed family violence.

Either a report, record of assault, witness statement or statutory declaration that is made by:

·     a police officer of a State or Territory

·     a police officer of the Australian Federal Police

OR
A witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation.

·     Identifies the alleged victim, and

·     Identifies the alleged perpetrator, and

·     Details an incident/s of family violence.

Report or statutory declaration made by an officer of:

·     a child welfare authority, or

·     a child protection authority of a State or Territory.

·     Details fears for the dependent childs’ (sic) safety due to family violence within the household, and

·     Identifies the alleged perpetrator.

Letter or assessment report made by:

·     a women’s refuge, or

·     family/domestic violence crisis centre on the organisation’s letterhead.

·     States that the alleged victim has made a claim of family violence, and

·     States whether the alleged victim was subject to family violence, and

·     Identifies the alleged perpetrator, and details any evidence used to form the opinion.

Statutory declaration made by:

·     a member of the Australian Association of Social Workers, or

·     a person who is eligible to be a member of that Association

who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.

·     States in their opinion the alleged victim was subject to family violence, and

·     Details the reasons for the opinion, and

·     Identifies the alleged perpetrator.

Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.
·     States in their opinion the alleged victim was subject to family violence, and

·     Details the reasons for the opinion, and

·     Identifies the alleged perpetrator.

Statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website.
·     States that the alleged victim has been treated or counselled, by the family consultant or family relationship counsellor, and

·     States that in their opinion the alleged victim was subject to family violence, and

·     Details the reasons for the opinion, and

·     Identifies the alleged perpetrator.

Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their professional capacity.
·     States that they have made, or been made aware of, observations that are consistent with the alleged victim’s claims that they were subject to family violence, and

·     Identifies the alleged perpetrator, and

·     Provides details of those observations.

MATERIAL RELIED UPON

At the hearing before this court, the applicant relied upon:
(a)his initiating application filed on 18 June 2018 and amended on 26 July 2022;
(b)the court book filed on 21 October 2019;
(c)his affidavit affirmed on 29 July 2022;
(d)his written submissions filed on 29 July 2022;
(e)the affidavit affirmed by Carina Ford on 25 October 2022;
(f)his written submissions in reply filed on 25 October 2022;
(g)the affidavit affirmed by Carina Ford on 26 October 2022;
(h)his list of authorities filed on 14 November 2022;
(i)his affidavit affirmed on 22 December 2022;
(j)his closing written submissions on the fraud ground filed on 27 February 2023;
(k)his reply filed on 21 March 2023; and
(l)the Minister’s concession that Mr Juvekar had died.
At the hearing before this court, the Minister relied upon:
(a)his response filed on 3 August 2018;
(b)the court book filed on 21 October 2019;
(c)his written submissions filed on 20 October 2022;
(d)the list of authorities filed on 16 November 2022;
(e)the subsequent list of authorities filed on 22 November 2022; and
(f)his closing written submissions on the fraud ground filed on 14 March 2023.
In addition, oral evidence was received from:
(a)the applicant;
(b)Mr Clarke; and
(c)Mr Singareddy.
MR SINGAREDDY’S EVIDENCE
The applicant subpoenaed Mr Singareddy, who attended court and gave oral and documentary evidence. He was the first witness to give oral evidence. His oral evidence included the following.
Mr Singareddy said that he was a registered migration agent. He said that, until 2015, he ran a Registered Training Organisation (“RTO”). He said that, on about 13 May 2018, some of his former students from the RTO brought the applicant to see him to seek his assistance. He said that the applicant showed him the invitation to comment dated 8 May 2018 from the Tribunal. He said that he was not familiar with the family violence exception in partner visa cases and he had never done a matter of that type before. He said that he told the applicant that he should go to a different migration agent. He said that the applicant told him that he had no money to pay an agent.
Mr Singareddy said that he agreed to help the applicant for no payment, because his former students had brought the applicant to see him. He denied receiving $1,500 in cash from the applicant or any money at all.
Mr Singareddy said that the applicant had some notes in English, Hindi and Punjabi and based on those notes and what the applicant told him, Mr Singareddy typed up the submission sent to the Tribunal on 13 May 2018. Mr Singareddy denied preparing the statutory declaration sent with that submission. He said that the applicant brought a bundle of documents with him.
Mr Singareddy said that the applicant understood “most” things in English.
Mr Singareddy said that, after the Tribunal handed down its decision, the applicant texted him to ask how much it would cost to go to the Federal Court. I read the text messages out aloud in open court. They were in English. A person, who the applicant accepted was him, said, “Hi, sir. How much for the Federal fee?” Mr Singareddy responded, “600”. The applicant replied, “Altogether, I’m broke. That’s why asking have to manage everything.” A couple of weeks later, Mr Singareddy said, “Kindly note BHAI. Don’t forget to bring $150 to $200 for these documents preparation.” The applicant replied saying, “Thanks.” About a month later, Mr Singareddy said, “Passport copy send now. Thank you.” The applicant replied, “Okay” and sent a photograph of a passport. The message trail continued.
Mr Singareddy said that the $600 was the Federal Court filing fee and the $150 to $200 was his fee for helping the applicant to settle his application to the Federal Court. Mr Singareddy said that he was not a lawyer so could not formally make a court application on the applicant’s behalf.
Mr Singareddy said that, about a year later, the applicant again contacted him asking for assistance to arrange for his wife and child in India to come to Australia. Mr Singareddy said that the applicant was still married to this wife when he married the sponsor in the present case. Mr Singareddy produced some documents that he said proved this, but they did not prove that at all.
Mr Singareddy agreed in cross-examination that, after receiving the subpoena in this case from the applicant, he telephoned the applicant and offered to say to the court whatever the applicant wanted. Mr Singareddy later clarified that what he meant to say was that he offered to help the applicant by producing documents or whatever.
THE APPLICANT’S EVIDENCE
The applicant said in his affidavit affirmed on 29 July 2022 various matters including that:
(a)he had engaged Mr Juvekar to help him with his Tribunal case;
(b)he had paid Mr Juvekar $3,000 in cash in a fixed fee arrangement;
(c)Mr Juvekar had never explained to him the family violence provisions;
(d)Mr Juvekar told him to sign a form 1410 statutory declaration which he did, even though he could not read it, because he believed Mr Juvekar to be honest and he trusted him;
(e)Mr Juvekar told him to visit a psychologist, which he did, and he obtained a report from him which he could not read;
(f)he attended a hearing with the Tribunal and understood there would be another hearing;
(g)Mr Juvekar went on holiday but emailed the applicant an invitation to comment and told him the deadline in which to respond;
(h)the applicant sought assistance from Mr Singareddy, who he was referred to by a friend;
(i)he paid Mr Singareddy $1,500 in cash;
(j)Mr Singareddy asked him to sign a form 1040 statutory declaration;
(k)he could not read it;
(l)Mr Singareddy prepared a response to the invitation to comment and sent it to the Tribunal without explaining it to the applicant;
(m)he signed the response because he trusted Mr Singareddy;
(n)his application to this court was filed with the assistance of friends because he had insufficient funds for legal representation; and
(o)he has now had help to pay for legal representation.
The applicant was the second witness to give oral evidence. His evidence was given through an interpreter. His examination in chief included the following:
(a)Mr Singareddy telephoned him recently and said:
The form, we have gone to clean up all and find it. Why have you done it? What help I can provide you? … I will speak in your favour there;
(b)when he saw Mr Singareddy, he did not take a series of documents, he just took “one paper” to which “he needed to reply”;
(c)he paid Mr Singareddy $1,500; and
(d)Mr Singareddy said, “I will fill up this case in one day. 600 or 650 the Federal case, and the rest is mine”.
In cross-examination, the applicant’s evidence included the following:
(a)the applicant said he could speak “very little” English;
(b)when taken to question 28 on his partner visa application form, “Which language(s) may the department use to communicate with you?”, which had been answered with the words, “Hindi and English”, the applicant said, “English I do not know”;
(c)the applicant said that Mr Clarke told him the case was spoiled so he went to see another migration agent, Mr Juvekar;
(d)the applicant denied that the hand writing in the statutory declaration made on 3 March 2018 was his, but he agreed he had signed it;
(e)the applicant said that he did not give Mr Juvekar any information to put in the statutory declaration;
(f)Mr Juvekar came up with the contents of the statutory declaration by himself;
(g)he may have told Mr Juvekar that he had been unable to see his stepson;
(h)he may have told Mr Juvekar that the wife’s allegations were quashed in the Magistrates’ Court;
(i)he could not say whether he said or did not say certain things to Mr Juvekar;
(j)the applicant gave Mr Juvekar CB461, which is a letter signed by Mr Clarke and Gurdeep Kaur to the department and the Tribunal saying that the relationship had ended and asking that the withdrawal be processed as soon as possible;
(k)the applicant said he did not know that his report would be given by Mr Juvekar to the Tribunal;
(l)he said that he went to see Mr Singareddy by himself;
(m)on 8 March 2018, he sent an email [attaching the Tribunal’s invitation to comment] to Kamo Sharma, who is the wife of a friend and a former student of Mr Singareddy, and she sent the email to Mr Singareddy;
(n)he was not sure whether Kamo Sharma went with him to see Mr Singareddy;
(o)he said a friend helped him to pay the $1,500 to Mr Singareddy;
(p)he denied giving any information to Mr Singareddy to include in the submission to the Tribunal;
(q)when asked how Mr Singareddy knew his date of birth and date of marriage, he said that he had provided his file to him, with all his details, but not his full file;
(r)he later said that he had told Mr Singareddy about the home visit by the department, and he had told Mr Singareddy about his wife not attending court and her intervention order application being struck out;
(s)he later said that he had spoken to Mr Singareddy about his situation;
(t)he said that Mr Singareddy asked him for whatever papers he had and he gave them;
(u)he was present when Mr Singareddy printed out the submission and he signed it; and
(v)he does not know why his application to this court uses some of the same words as the submission to the Tribunal prepared by Mr Singareddy.
In re-examination, the applicant’s evidence included the following:
(a)he did not know if he told Mr Clarke that he speaks English;
(b)when he went to see Mr Singareddy, he took with him certain documents he was shown in the court book, being:
(i)CB601, an interim intervention order;
(ii)CB599, the application for the intervention order;
(iii)CB469, the psychologist’s letter dated 6 March 2018;
(iv)CB603, the statutory declaration made on 15 May 2018; and
(v)CB577, the statutory declaration made on 3 March 2018; and
(c)he was 60% to 70% sure he also gave Mr Singareddy CB281, being the delegate’s decision.
MR CLARKE
Mr Clarke attended court and gave oral evidence. He also produced his file. He gave oral evidence after Mr Singareddy and the applicant.
Mr Clarke said in evidence in chief that the applicant still owed him money.
In answer to some questions from the court, Mr Clarke said that:
(a)he did not recall the applicant ever using an interpreter in discussions with him;
(b)“he would have spoken to me in English … I’m sure that Ghansham always spoke to me in English”;
(c)he recalled the applicant reading documents in English, particularly because his usual method of working was to sit with the client where they could both see the computer and could discuss the contents of any letter or submission they were drafting and correct it as they went;
(d)he particularly recalled following that process with the applicant; and
(e)the letter at CB48, being a letter dated 9 June 2014 from the applicant to the department, would have been prepared in that way.
Re-examination by the applicant commenced but the hearing was then adjourned from 22 November 2022 to 31 January 2023 to allow Mr Clarke time to scan his file and provide it to the parties and the court. When the matter resumed, the applicant, without objection, proceeded to cross-examine Mr Clarke (T175.17). Mr Clarke then said:
(a)Gurdeep Kaur’s English was quite proficient;
(b)she would have done interpreting as needed for the applicant, but he also spoke some English; and
(c)Mr Clarke wrote documents under the applicant’s name with the applicant being present and another person to assist as needed with interpretation.
Under “re-examination” by the Minister, Mr Clarke said that:
(a)he gave the applicant copies of documents Mr Clarke had prepared and expected that the applicant would be able to read them in English;
(b)he put in the initial partner visa application that the applicant had functional English, which is 4.5 on the IELTS scale;
(c)he put in the initial partner visa application that the department could communicate with the applicant in Hindi and English because the applicant spoke enough English to be able to understand letters sent to him;
(d)on the Queen’s birthday weekend in 2014, Mr Clarke worked all of the Saturday and all of the Monday with the applicant and he was able to speak enough English to give Mr Clarke instructions for him to be able to prepare documents;
(e)in relation to page 158 of Mr Clarke’s file, where the applicant had said that he did not have very good English and would not have qualified for a student visa himself, that was true, because the applicant would have needed a score of 5 on the IELTS to qualify for a student visa, but he still had functional English;
(f)in relation to page 183 of Mr Clarke’s file, which refers to a telephone call the applicant made to Mr Clarke, the two of them spoke on the phone in English; and
(g)Mr Clarke sent many emails to the applicant chasing up his fees, which amounted to $1,435.30 plus interest.
The applicant then conducted further re-examination of Mr Clarke, during which he said:
(a)to avoid being required to undertake English lessons, at their own cost, applicants for partner visas needed to have at least functional English;
(b)the sponsor was probably always present when Mr Clarke met with the applicant; and
(c)in the phone call mentioned above, he might have spoken to Gurdeep Kaur rather than the applicant.
FINDINGS
The applicant in the witness box did not present as credible. Even making due allowance for his evidence being given through an interpreter, he seemed to be at pains to emphasise that he did not understand what had happened or did not recall events rather than be willing to directly answer questions or make appropriate concessions. For example, he refused to concede that he separated from the sponsor in December 2017, even though the first psychological report he provided to the Tribunal said that he had told the psychologist that he had been “kicked out” of his marriage about three weeks prior to his first consultation, which was on 8 January 2018.
The applicant said repeatedly that he saw Mr Singareddy alone. However, after he was shown an email trail between himself, Kamo Sharma and Mr Singareddy, and after he had conceded that Kamo Sharma was a former student of Mr Singareddy, he said that he was not sure if he saw Mr Singareddy alone. This was not an insignificant concession, because it gave some credence to Mr Singareddy’s claim that the applicant saw him with friends who were Mr Singareddy’s previous students.
The following exchange occurred in evidence in chief:
Counsel:Mr Ratna [i.e., Mr Singareddy] said yesterday that when you first came to see him, or when you came to see him, you brought with you a series of documents.
…
Applicant:       No, I have just taken one paper in there which he need to reply.
Counsel:         Was that an – who was the email from?
Applicant:       Ketan. [i.e., Mr Juvekar]
Counsel: All right. And do you remember what that email was about? Did you know?
Applicant:       No.
Counsel assumed that the one piece of paper was an email. It was evidently the Tribunal’s invitation to comment.
In cross-examination, the applicant persisted in claiming that he had given no information to Mr Singareddy, that Mr Singareddy explained nothing to him, and that Mr Singareddy made up the submission in response to the invitation to comment all by himself. The applicant was asked how Mr Singareddy could have known certain facts to put in the submission (such as the year the applicant came to Australia, or that case officers did a home visit) unless the applicant had given that information to Mr Singareddy. The applicant then conceded that he had given some information to Mr Singareddy, but not “line to line”.
In re-examination, the applicant was taken in the court book to:
(a)CB601, an interim intervention order;
(b)CB599, the application for the intervention order;
(c)CB469, the psychologist’s letter dated 6 March 2018;
(d)CB603, the statutory declaration made on 15 May 2018;
(e)CB577, the statutory declaration made on 3 March 2018; and
(f)CB281, the delegate’s decision.
The applicant was asked whether he gave the above documents to Mr Singareddy. He was 60% to 70% sure he gave the delegate’s decision to Mr Singareddy and entirely sure that he gave the other documents to Mr Singareddy. The applicant was very quick to identify the documents and answer these questions from his own counsel.
The Minister submitted that this was a dramatic turn around. The applicant submitted it was a collateral issue, and he had been clear that his recall was “not great”.
The difficulty with the applicant’s recall being “not great” is that it detracts from his overall reliability as a witness. Similarly, if he can be quite certain about a particular fact at one point in his evidence, and then do a complete about face on that issue at another point in his evidence, it undermines his credibility overall. The court simply cannot be confident in the accuracy of the applicant’s evidence.
The concession that the applicant actually took several documents to Mr Singareddy also undermines the applicant’s claim that Mr Singareddy just made things up without any input from the applicant and put them in the response to the invitation to comment. This in turn suggests that the applicant was not as helpless and kept in the dark as he maintained.
In addition, the applicant’s concession that he gave some information to Mr Singareddy, albeit not “line to line”, gives some support to Mr Singareddy’s account that he and the applicant worked on the submission together, albeit with Mr Singareddy choosing the final verbal formulation.
The speed and certainty with which the applicant identified the documents in the court book that he gave to Mr Singareddy also somewhat undermined his claim to have no knowledge of written English. There is no doubt that the applicant is not proficient in English. However, Mr Clarke recorded in the original partner visa application in 2014 that:
(a)the applicant had functional English, which Mr Clarke said was about 4.5 on an IELTS test; and
(b)the department could communicate with the applicant in Hindi and English.
Both parties accepted that Mr Clarke was a generally credible witness, though I found him to be a little suggestible. He largely agreed with whoever asked him questions. Mr Clarke’s evidence changed somewhat, but he ultimately maintained that he could communicate with the applicant in English and he believed the applicant could understand written English.
It is also noteworthy that the applicant telephoned the Tribunal registry on 10 May 2018: CB589. He authorised the registry in that telephone call to speak to a friend, who then proceeded to make an enquiry. The applicant said this demonstrated he did not speak English, while the Minister said it demonstrated that he did, but that he obtained help with certain procedural aspects of his claim.
The record of the telephone call indicates that the applicant had some facility with spoken English, but that he preferred others to speak for him for serious matters. That is consistent with the applicant having a basic knowledge of what was said to him in English, but preferring Mr Juvekar and Mr Singareddy to write formal submissions for him.

Significantly, the applicant exchanged text messages with Mr Singareddy in English about fees for the Federal Court review of the Tribunal’s decision. Clearly, the applicant had some ability to read and write English.
Overall, I consider that the applicant significantly downplayed his English language ability, to further his case that he was helpless and kept in the dark by Mr Juvekar and Mr Singareddy.
The applicant also said that he made two statutory declarations without having any idea what they said. It is, of course, an offence, and an offence of dishonesty, to knowingly make a false statutory declaration. The applicant would say that he was not aware of that. However, he was aware that he was signing important documents that the Tribunal was going to rely on in deciding his case.
The applicant must have known they were important documents because he had to sign them in front of a pharmacist. He must have known the Tribunal was going to rely on them, because why else prepare them?
The applicant said that he signed the statutory declarations because he simply trusted his migration agents. But why would he have trusted someone who told him nothing about what was in the document or why it was being created? I find this completely implausible. The alternative is that the applicant lied to the court about not knowing what was in the statutory declarations. Frankly, I consider that to be more likely.
Both parties described Mr Singareddy as an unsatisfactory witness and unreliable, though the Minister said that his evidence should be preferred to the applicant’s in certain areas.
The applicant argued that Mr Singareddy’s credibility was completely destroyed because he offered to perjure himself to assist the applicant in the present proceeding. It is true that Mr Singareddy agreed in cross-examination that, after receiving the subpoena in this case from the applicant, he telephoned the applicant and offered to say to the court whatever the applicant wanted. Mr Singareddy soon afterwards clarified that what he meant to say was that he offered to help the applicant by producing documents or whatever.
The applicant’s own version of this telephone call was that Mr Singareddy said to him:
The form, we have gone to clean up all and find it. Why have you done it? What help I can provide you? ... I will speak in your favour there.
It is counsel’s gloss to say that Mr Singareddy offered to perjure himself. The applicant’s own evidence was that Mr Singareddy offered to help, not that he offered to lie for the applicant. Mr Singareddy quickly corrected his own evidence. No one suggested that Mr Singareddy did in fact lie to the court to assist the applicant. It seems to me that the applicant has distorted what Mr Singareddy said to suit his own purposes.
It was common ground that Mr Singareddy’s response to the Tribunal’s invitation to comment was incompetent and incoherent. I accept that.
Mr Singareddy’s oral evidence was often difficult to follow. Also, he claimed to have documents showing that the applicant was still married to another woman when he married the sponsor in the present proceeding. However, the documents he produced did not show that at all. This claim was strange, and was not pursued by the parties. The court is not in a position to decide whether there was any truth to Mr Singareddy’s claim that the applicant is a bigamist. That issue aside, there was nothing to suggest that Mr Singareddy had misled the court or had otherwise been dishonest in his evidence.
The applicant claimed that he paid Mr Singareddy $1,500 in cash for his services and did not obtain a receipt. Mr Singareddy said clearly and consistently that the applicant did not pay him anything at all. The Minister said that the court should accept Mr Singareddy’s evidence on that point. The applicant said that the court should not, mostly because it made “little sense” that Mr Singareddy would provide “free services to a stranger”.
However, as we know, plenty of lawyers provide pro bono legal services. I daresay there are migration agents who do the same, particularly if there is a social connection, as there was in this case. The applicant conceded that he was referred to Mr Singareddy by a friend, who turned out to be Kamo Sharma, one of Mr Singareddy’s former students.
The applicant claimed that Mr Singareddy’s text messages about fees bolstered his claim to have paid Mr Singareddy to prepare the submission. However, the text messages, having been sent after the Tribunal handed down its decision, clearly relate to the proposed Federal Court review, as explained by Mr Singareddy.
Mr Singareddy agreed that he had told the applicant that the Federal Court filing fees would be about $600 and his own fee to settle the application would be $150 to $200. He said that he told the applicant that he would no longer provide services for free. The text messages are consistent with Mr Singareddy’s claim that the applicant paid him nothing for the submission to the Tribunal.
The Minister said that the applicant not paying Mr Singareddy was consistent with his general financial position. The applicant owed, and continues to owe, about $1,400 to Mr Clarke. It seems that the applicant paid Mr Juvekar a flat fee of $3,000. Following the Tribunal’s decision, he had no money to get a lawyer, and filed the present application by himself. He is now assisted by lawyers because, he says, friends are helping him with the fees.
The applicant said this history is consistent with only paying Mr Singareddy a self-evidently very small amount of money, and the history fortified the applicant’s position. I do not accept that $1,500 was a self-evidently very small amount of money for the submission in this case. It seems to me that $1,500 is a lot for a very poor quality written submission by a migration agent.
There was no corroboration that the applicant paid Mr Singareddy for his services. There was no receipt. No friend came forward to say that he had provided the funds. It is not implausible that Mr Singareddy would have provided some limited assistance to the applicant for free, particularly as he was referred to Mr Singareddy by a former student.
Moreover, Mr Singareddy said, without challenge, that he advised the applicant to go to another migration agent, who was more familiar with the family violence exception. Obviously, the applicant did not do so. The most likely explanation for that is that he had no money to pay a migration agent. That is exactly what Mr Singareddy told the court the applicant said to him at the time. I find this evidence entirely plausible.
On balance, I am not persuaded that the applicant did pay Mr Singareddy for his services. I prefer Mr Singareddy’s evidence on this issue.
I do not accept the applicant’s claim that Mr Singareddy prepared the form 1040 statutory declaration. On his own admission, Mr Singareddy knew nothing about the family violence exception and had never done such a matter. I consider that Mr Juvekar had partially prepared form 1040 statutory declaration, expecting an explanatory covering letter to be added to it in due course. I consider that the applicant brought the form 1040 with him when he went to see Mr Singareddy, with the declaration already completed, and then Mr Singareddy sent it to the Tribunal with his written submission.
The applicant argued that Mr Juvekar was aware of the requirements of IMMI 12/116, but did not comply with them because he just wanted to take the applicant’s money and do the least possible amount of work. The Minister argued that the court should find that Mr Juvekar was not aware of the requirements of IMMI 12/116.
Mr Juvekar was not available to give his side of the story. However, taking into account all of the evidence in the case, I consider that Mr Juvekar was aware of the requirements of IMMI 12/116. He arranged for the applicant to make the statutory declaration dated 3 March 2018 on form 1410. That form is headed, “Statutory declaration for family violence claim”. It said prominently, at the beginning:
Before completing this declaration
Please ensure that you have read the explanatory notes that accompany this statutory declaration
Question 7 on form 1410 stated:
What evidence do you have of the family violence that has taken place?
Please describe and attach any relevant evidence.
Note: There are minimum evidence requirements as outlined on Fact sheet 38 Family Violence Provisions available from the department’s website >
The court was not provided with the explanatory notes to form 1410 or fact sheet 38. However, I daresay that they spell out what is required by IMMI 12/116, or at least give clear directions to where to find it. I find it implausible that, having found form 1410, Mr Juvekar would not have followed the instructions and read the explanatory notes accompanying the form and read fact sheet 38.
That conclusion is bolstered by the fact that, at the hearing, he sought further time to provide further evidence. He would not have done so if he was not conscious that the existing material was inadequate, or, indeed, as the applicant submitted, if he wished to do the minimum amount of work.
At the Tribunal, Mr Juvekar was obviously aware of the value of material from a psychologist, and aware that the existing letter was inadequate. He would not have had that awareness if he was oblivious to IMMI 12/116.
It is interesting that Mr Juvekar said to the Tribunal (T32-3), in asking for more time:
How long can you give? Because if you can give a little more, he’s always nervous.
…
I’m sure he will have a breakdown. He’ll not be talking with me for maybe a month or something like that. That’s my problem with my client. He doesn’t see me. When he’s all right, then he comes and sees me and then I have to do everything last minute. That’s why I gave you that bunch today. I mean, sorry. Whatever maximum you can give him on it.
…
That’s if he promises to go there because he'll agree to an appointment and not go there.
This indicates that Mr Juvekar had difficulty getting his client to do what he advised. A corollary of that is that Mr Juvekar may have told the applicant what he had to do to meet the requirements of IMMI 12/116, and the applicant did not understand, or the applicant did not diligently follow the advice he was given or the appropriate documents simply could not be obtained. Further possibilities, available on the evidence, are that Mr Juvekar was incompetent or negligent. Any of these options would not amount to Mr Juvekar being dishonest, or recklessly indifferent to the requirements of IMMI 12/116.
GROUNDS 1 TO 6 AND GROUNDS 1 TO 5.5
Grounds 1 to 6 and grounds 1 to 5.5 in the original application filed by the applicant in person on 18 June 2018 were struck out in the amended application filed on 26 July 2022.
GROUND 5
Ground 5 in the amended application filed on 26 July 2022 was withdrawn at the hearing on 22 November 2022. However, it is perhaps worth setting out, because it was closely related to ground 6, which the applicant continued to press, and because the written submissions on grounds 5 and 6 were combined. Ground 5, which was abandoned, was as follows:
The Tribunal failed to notify the applicant of the decisive issue in the review, being the need to meet the evidential requirements under IMMI 12/116.
Ground 5 was a procedural fairness ground and ground 6 is substantially the same but an unreasonableness ground.
The applicant was correct to abandon ground 5, because it is not a requirement of procedural fairness that the Tribunal specify for an applicant the relevant legislative criteria. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1, the High Court explained that:
Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. (emphasis added)
Moreover, in the present case, the delegate sent the applicant a copy of some of the relevant regulations, including some of those dealing with the family violence exception, in an invitation to comment dated 11 March 2016 and also later as an attachment to the delegate’s decision. The regulations the delegate sent to the applicant, twice, did not reproduce reg.1.24, but did refer to that regulation. Regulation 1.24, in turn, expressly required items of evidence of the type and number specified by the Minister by instrument in writing for paragraph 1.24(b) of the regulations. That requirement alerted anyone reading reg.1.24(b) to look for IMMI 12/116. It will be recalled that, at the time of the delegate’s decision, the applicant and his sponsor still claimed to be in a relationship, and the family violence exception had no application.
In addition, the applicant provided to the Tribunal a statutory declaration made by himself on 3 March 2018 on Form 1410 which was headed, “Statutory declaration for family violence claim”. That form, which was filled out and signed by the applicant, contained item 7 which stated:
What evidence do you have of the family violence that has taken place?
Please describe and attach any relevant evidence.
Note: There are minimum evidence requirements as outlined on Fact sheet 38 Family Violence Provisions available from the Department’s website >
In other words, the applicant, or at least his agent, was in possession of a departmental document that directed him to relevant information to assist him in providing the required evidence to support his family violence claim. Fact sheet 38 was not provided to the court. It seems to have been replaced by a different information resource. The current online information clearly explains what is required and reproduces in clear terms IMMI 12/116. There is no reason to doubt that fact sheet 38 would have done the same.
It follows that a departmental document, in effect, identified for the applicant that his claims of family violence needed to be made in accordance with the evidential requirements under IMMI 12/116. The applicant and his agent had that document. The form 1410 provided by the applicant to the Tribunal obviated any procedural fairness obligations the Tribunal may have had to alert the applicant to the requirements of IMMI 12/116.
GROUND 6
Ground 6 in the amended application filed on 26 July 2022 is:
The Tribunal acted unreasonably in not identifying for the applicant that his claims of family violence needed to be made in accordance with the evidential requirements under IMMI 12/116.
The applicant’s written submissions on the unreasonableness ground were a little difficult to distil, because they were combined with the applicant’s written submissions on the procedural fairness ground, which was abandoned, and the fraud ground, which was pressed.
In any event, the applicant noted that the delegate had refused the applicant’s partner visa application because he considered that the applicant was not in a genuine relationship with Gurdeep Kaur. At the time of the delegate’s decision, there was no suggestion of the family violence exception applying, because the applicant and the sponsor still claimed to be in a relationship.
The applicant noted that, prior to the hearing before the Tribunal, the Tribunal invited the applicant to provide evidence that the relationship was genuine and he provided some further evidence for that purpose.
The applicant then referred to the transcript of the hearing before the Tribunal. The transcript was the attachment marked CF-1 to the affidavit affirmed by Carina Ford on 26 October 2022. GoTranscript prepared the transcript. The Minister did not dispute the accuracy of the transcript.
The applicant noted that, after delays “at the Tribunal’s end” in fixing a hearing, Gurdeep Kaur withdrew her sponsorship. The applicant did not suggest that there was any jurisdictional error related to the delays “at the Tribunal’s end”.
In paragraph 26 of his written submissions, the applicant noted that:
At the hearing, the Tribunal opened as though the issue remained whether the applicant and former sponsor were in a genuine relationship (T3). Yet, the Tribunal informed the applicant of the sponsor’s withdrawal of the sponsorship.
What actually happened is that the Tribunal, after the swearing in of the interpreter, the applicant and a witness, reminded the applicant of the “key elements” the law required it to consider, being the financial aspects of the household, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.
The Tribunal then explained that it had some information to give the applicant that might be a reason for affirming the decision under review. The Tribunal said that the sponsor had written to the Tribunal withdrawing her sponsorship. The Tribunal said that the applicant or the agent could respond straight away or they could seek an adjournment.
The applicant, in his written submissions, seems to have been under the misapprehension that, if the relationship had ended, the question of whether it had ever been genuine was superfluous. That is not correct. That is because the application in the present case was an application for a temporary partner visa. Minister for Immigration v Gupta [2022] FCAFC 51, referred to by the applicant, is distinguishable, because that case concerned an application for a permanent partner visa, which presupposes the existence of a genuine relationship at the time the temporary partner visa was granted.
In the circumstances of an application for a temporary partner visa and a sponsorship that had ended, it was necessary that there had previously been a genuine relationship and that, relevantly, there had been family violence perpetrated by the sponsor against the applicant. Even if there had been family violence as defined, there still needed to have been a genuine relationship for the applicant to get the temporary partner visa. The Tribunal was entirely correct to have proceeded as it did to that point.
The applicant then said in his written submissions:
27. In response to this puttage, the agent said:
Migration Agent: [unintelligible 00:10:59] already [unintelligible 00:11:00] We are not denying the fact that they’re in a relationship or they’re not in a relationship, that she hinted to this department, but that in fact, further proves the fact that she’s leading you into harassment. You understand it’s a little bit of [unintelligible 00:11:13].
28. Unintelligible indeed.
This statement was not completely unintelligible. The agent clearly corrected himself, and ultimately conveyed, as the Tribunal understood:
We are not denying the fact that … they’re not in a relationship …
The balance of the passage is difficult to comprehend, but that may be because the audio was poor, rather than because the agent was not making sense. The Tribunal seemed to understand what the agent had said, because the Tribunal’s response was, “Okay, okay.” The Tribunal did not say to the agent, here, or elsewhere during the hearing, words to the effect of, “I don’t follow what you’re saying”.
The applicant did not refer to the next words in the transcript, which were the agent saying, “I’m sorry for that.” The applicant then noted that:
29. The following exchange next occurred (T6):
Tribunal: No, no, that’s fine now. As the migration agent in this, so you’re saying if that they’re not denying the fact that there is no ongoing relationship, so it would make it very difficult then for this appeal to proceed?
Migration Agent: Yes.
Tribunal: You accept that?
Migration Agent: I accept that, but you have to defend the ground on which we’re likely to--
Tribunal: Fair enough. Okay. Let’s go through that then. Let’s just then begin with-- Yes, those different grounds, do you want them to be here aired here in the hearing, or do you want to make it the submission [unintelligible 00:11:56]?
30.It is unclear what this means. The Tribunal seems to have been content to let the applicant develop his case for why there was a genuine relationship. But that seemed to be otiose in light of the withdrawal of the sponsorship, unless some exception applied (family violence, Australian citizen children, death of the sponsor). If an exception applied, then it might be necessary to consider whether the relationship was genuine at some point in time in the past. But where the only conceivable exception was a family violence claim, and where the regulations required such claims to be in a prescribed form, it would make little sense to examine the detail of a relationship until the family violence claim was made in the prescribed form.

This criticism is unjustified, because the Tribunal had already noted that, with the sponsorship being withdrawn, it would be very difficult for the applicant to succeed. Then, Mr Juvekar conceded that there was no ongoing relationship but suggested that there was another basis on which the applicant would seek the visa. The Tribunal said “Fair enough”, and asked if the applicant wished to “air” the grounds in the hearing or subsequently. That is all perfectly fine.
The applicant criticised the Tribunal’s approach of exploring whether the relationship was genuine before being in possession of a valid family violence claim. However, the Tribunal explained why it did that. It was because the applicant had brought a number of witnesses with him to the hearing to address the question of the genuineness of the relationship. The Tribunal said to the witness, Mr Duna, at T10, that the Tribunal wished to hear from him at that hearing so as to not waste his time by requiring him to come to another hearing. The same perfectly valid reasoning applied to hearing the evidence from the applicant himself and his other witnesses.
The applicant did not refer in his written submissions to the next few passages. However, Mr Juvekar then said at T6 that the applicant would get a final report from a psychologist and he would get some other affidavits from friends to prove that “she”, presumably the sponsor, was ill. The transcript indicates that Mr Juvekar said some other things which the transcript records as unintelligible, but which the Tribunal appeared to have understood at the time. This unintelligibility seems to be an issue with the quality of the audio rather than Mr Juvekar saying something unintelligible.
It appears that Mr Juvekar may have referred to a submission, because the Tribunal then noted that it had received “both submissions” on the morning of the hearing. The Tribunal gave one back to Mr Juvekar, presumably because one was a copy of the other.
The “submission” seems to have been:
(a)the psychologist’s report dated 6 March 2018 which referred to the sponsor’s allegations that the applicant had beaten her up, and his distress at the end of his relationship (CB469);
(b)a statutory declaration from Ravinder Singh saying that relationship was genuine and the applicant now had mental health issues (CB471); and
(c)an order from the Broadmeadows Magistrates’ Court saying that the sponsor’s family violence application against the applicant had been struck out (CB472).
The Tribunal then said at T7:
How about if I hear from you the basis upon which you are going to make submissions? I will read these submissions and then we will adjourn at a suitable period of time that you require. Let’s proceed in that way. Please give me a summary, either--
The applicant then continued in his written submissions, saying:
31.The agent’s understanding of what was occurring at the hearing seems to be best recorded in the following passage (T7):
Migration Agent: Honorable Member, why these people are here are two. See, we have basically a requirement in the law, legislation, that when the domestic violence occurred, she was in a different relationship with [unintelligible 00:13:25].
Tribunal: Yes.
Migration Agent: Okay, so we’re here to prove that it was indeed a relationship, they lived together, we have photographs to prove that they have been putting things together the son-- basically, according to my analysis, or the psychologist’s analysis, the main reason for his wife to behave in both ways sometimes she’s in very much love and sometimes it’s just because her past.
32.This could be read as the agent understanding the issue as whether there existed a genuine relationship at the time of relevant family violence having occurred, and that his client needed to prove both matters: (i) relevant family violence; and (ii) a genuine relationship at a relevant point in the past. But that is far from clear.
33.Of course, however, a competent migration agent would not be in any doubt about this being the issue. It was the only way left for the applicant to succeed. So, that the agent was not clear about this is concerning.
What can actually be seen in the first of these passages is that Mr Juvekar mentioned domestic violence. It seems to me to be clear that Mr Juvekar was well aware that both family violence and a prior genuine relationship needed to be established. The Tribunal hearing proceeded on that basis and the applicant would eventually seek to provide material to satisfy both issues. There is no proper foundation for the applicant’s suggestion that Mr Juvekar did not understand this.
The applicant then said in his written submissions at paragraph 34:
The next event at hearing was the Tribunal receiving evidence from two witnesses directed to the genuineness of the relationship. The Tribunal then turned to the applicant and said at T14:
Tribunal: All right. I certainly will. What I’d like to do now is just to hear from you, Mr. Ghansham a little bit, but then as discussed, then we’ll adjourn until another time to get the psychologist’s report and for me to review all of this material.
The Tribunal’s statement, “I certainly will”, was directed to a witness, who had asked the Tribunal to consider the application “really quickly”. The applicant continued in his written submissions:
35.The “psychologist’s report” mentioned here by the Tribunal seems to be a reference to the agent’s comments at the start of the hearing, back on page 6:
Migration Agent: Maybe nice she’s gone too, now she’s got another appointment, and then he do the final report from the psychologist and some other affidavit from friends to prove that she was ill [unintelligible 00:12:34].
36.This is confusing. A statutory declaration from a psychologist setting out certain matters is one of the acceptable forms of evidence for making a valid family violence claim under IMMI 12/116. But a mere report is not. And one psychologist’s statutory declaration (or report) is not enough to make a valid claim.
37.It is not clear whether the psychologist’s report discussed was intended to be directed to the making of a valid family violence claim, or to the question whether a genuine relationship existed when family violence occurred.
38.Or, if it was utterly mis-directed, perhaps because the agent misconceived the issue – but one would be slow to think that a registered migration agent could be confused about such a straightforward application of the regulations.
The Tribunal’s reference to a psychologist’s report is not confusing. Mr Juvekar had said that he was going to get one. It is true that the report had to be in the form of, or appended to, a statutory declaration. However, to refer to it as a report was a convenient shorthand that did not signify any fundamental misapprehension of what was required. The important point is that the Tribunal was giving the applicant time to provide whatever further information he wished. There was no reason for the Tribunal to suppose that, with sufficient time, the applicant would not attempt to put in material of the appropriate types and in the appropriate form.
The applicant continued in his written submissions:
39.      At T26, the Tribunal says:
Tribunal: Okay, I think we will proceed as what we had said when your representative and that is that I need to receive the psychological report.
Interpreter: [Punjabi language]
Tribunal: Then depending on that, and depending on the information that was submitted to me today, which is quite substantial. I’ll either decide to have another hearing when we can go through all of this in detail or write to you.
40.      After some more evidence is received, the following is said at T28:
Tribunal: Okay. No problem. We’re just wrapping up now. As I mentioned before, I think the best thing is to wait for the final psychological report for me to go through this material. I just want to, for clarity’s sake, focus on this date of birth issue, just so everyone’s clear. [That issue was about the applicant’s awareness of the age of his stepson, Gurdeep Kaur’s son.]
41.      After yet more evidence, the following is said at T32:
Tribunal: No, no, no. I understand that. Thank you Madam interpreter for your time. Thank you everyone for coming. We will proceed to arrange a future time. How long do you want to submit the psychological report? I’ll wait for that before I set a future hearing date.
42.      And at T33:
Tribunal: Okay. I'm wondering with regards to the psychologist report, so we have one already. I was under the impression that we’re looking for like, this is a draft. We are looking for a final.
43.Recalling this is a reference to CB 469, which is not compliant with IMMI 12/116. It is far from clear what the Tribunal had in mind at this stage.
44.This was a strange hearing. The Tribunal did not tell the applicant anything about the consequences of his agent’s concession that the relationship had broken down. The consequences were straightforward – meet an exception of fail.
45.The Tribunal did not say anything about the making of a valid family violence claim.
46.The applicant’s agent mentioned the issue of family violence obliquely, with discussion to the effect that a fresh “psychologist’s report” would be furnished to the Tribunal to supplement, confirm or perhaps finalise the “draft” report at CB 469. The discussion did not direct attention to IMMI 12/116, which is flabbergasting.
47.It is necessary to recall that it was not decisive that, on the day of the hearing, the applicant should have presented the evidence required for the valid family violence claim. He could have sought an indulgence of time in which to supply that evidence. As it happened, an indulgence was provided, and it seems a second hearing contemplated.
48.It was also not strictly irrelevant for the Tribunal to assess whether there was a genuine relationship. That would have been a necessary finding if a valid family violence claim was to be advanced,¹ and the Tribunal would have [been] entitled to examine this issue before examining whether there was a valid family violence claim (this would be odd given the relative burden of the former and latter, but it was possible and would have been lawful).
FN 1:    Minister for Immigration v Gupta [2022] FCAFC 51
The Tribunal referred to a final psychological report because Mr Juvekar had said at T6 that he intended to get one. What the Tribunal had in mind was clearly to give the applicant time to provide whatever documents he wished.
This was not a strange hearing. The Tribunal did tell the applicant the consequences of his relationship breaking down. The Tribunal said at T4 and T5 that it wanted the applicant to comment on information that the relationship had broken down because:
Subject to your comments, this may lead the Tribunal to find that you are not in an ongoing genuine relationship.
…
If so, this would be the reason or part of the reason for the Tribunal to affirm the matter.
…
As you are aware, an adjournment is also available to you. How would you prefer to proceed?
It is true that the Tribunal during the hearing did not tell the applicant anything about the family violence exception. The Tribunal did not need to, because Mr Juvekar had demonstrated that he was aware of the exception and indicated that he wanted more time to file appropriate documents, which the Tribunal gave him. The Tribunal said at T26:
I’ll either decide to have another hearing when we can go through all of this in detail or write to you.
Ultimately, the Tribunal decided to write rather than have another hearing. The applicant does not take issue with this, except obliquely.
As mentioned above, Gupta is distinguishable. The Tribunal could deal with the issues in whatever order it preferred. It made perfect sense for the Tribunal to hear evidence about the genuineness of the relationship while the relevant witnesses were in attendance.
The applicant then said in his written submissions at paragraph 49:
Against this background, the applicant’s first agent furnished a further psychologist’s report and a statutory declaration from the applicant (CB 575-581).
On 12 April 2018, Mr Juvekar sent the Tribunal an email attaching a letter dated 6 April 2018 from the same psychologist as before and a statutory declaration from the applicant.
The letter said that the applicant had attended on the psychologist a number of times. The psychologist said that the applicant reported being unable to come to terms with the breakdown of his relationship and met the diagnostic criteria for “adjustment disorder with depressed mood, chronic”.
The statutory declaration made by the applicant was on departmental form 1410 and was headed, “Statutory Declaration for Family Violence Claim”. In response to item 5, “Describe the relevant family violence you have experienced , including dates of individual incidents and the frequency of the violence”, the applicant said:
Mental harassment, frequent arguments over the love of me for the stepson …
I was also thrown out of the house and I am not allowed to meet my beloved stepson. …
The applicant’s written submissions continued:
50.The import of this communication is unclear. On one view, the agent was simply following through with the promise to furnish an additional psychologist’s report for some unclear purpose, but not for the purpose of making a valid family violence claim. But that does not square with the supply of the document at CB 577-581, which is the correct form of a statutory declaration required from the applicant for making a valid family violence claim. This document indicates conclusively that the agent must be (sic) known that the applicant needed to make a valid family violence claim to get the visa.
Mr Juvekar’s precise purpose in sending those documents to the Tribunal is not clear, because he died prior to the hearing before this court. The applicant attempted to subpoena him to give evidence and produce documents. Obviously, the subpoena could not be served on him. It may have been possible for the applicant to subpoena whoever was holding Mr Juvekar’s business records. However, the applicant did not do that.
It is noteworthy that Mr Juvekar told the Tribunal at T32-33, in answer to a question about how long he required to produce the further documents:
How long can you give? Because if you can give a little more, he’s always nervous.
…
I’m sure he will have a breakdown. He’ll not be talking with me for maybe a month or something like that. That’s my problem with my client. He doesn’t see me. When he’s all right, then he comes and sees me and then I have to do everything last minute. That’s why I gave you that bunch today. I mean, sorry. Whatever maximum you can give him on it.
…
That’s if he promises to go there because he’ll agree to an appointment and not go there.
In other words, Mr Juvekar told the Tribunal that his client, in at least some respects, was not following his advice.
More importantly for present purposes, as noted above, the statutory declaration that the applicant completed contained item 7 which stated:
What evidence do you have of the family violence that has taken place?
Please describe and attach any relevant evidence.
Note: There are minimum evidence requirements as outlined on Fact sheet 38 Family Violence Provisions available from the Department’s website >
In other words, the applicant, or at least Mr Juvekar, was in possession of a departmental document that directed him to relevant information to assist him in providing the required evidence to support his family violence claim.
Notwithstanding the clear words of item 7 on form 1410, the applicant’s response was:
Declarations from friends, police reports, court orders and report from psychologist etc along with photos.
The applicant did not attach any documents to his statutory declaration, even though item 7 in the form 1410 asked him to do so.
In any event, the applicant then said in his written submissions:
51.So, was it an attempt at making a valid family violence claim? It can’t have been an honest attempt to do so, since the agent did not tell the applicant anything about this procedure, and since it was plainly inadequate – the psychologists report was only one item of evidence when two were required, and the psychologists report was plainly not a compliant item of evidence anyway.
52.So, what was the agent doing, other than taking money and shirking the required work?
These paragraphs seem to go more to the fraud point. However, we do not know that Mr Juvekar did not tell the applicant anything about the evidentiary requirements. He has died, so cannot put his side of the story. What we do know is that Mr Juvekar told the Tribunal that the applicant did not do exactly as advised by Mr Juvekar, and we do know that the applicant, or at least his agent, was in possession of the form 1410, which referred to the relevant evidential requirements.
The next thing that happened, is that on 8 May 2018, the Tribunal wrote to Mr Juvekar seeking his comments in relation to a s.375A certificate which covered certain material and said:
This material is not relevant as the sponsorship has been withdrawn and as such cl.820.221(1) is not met. The genuineness of the relationship will be considered if and when the statutory requirements for family violence as per cl.829.221(3) are met.
In other words, following the hearing, the Tribunal clearly alerted the applicant to the need to satisfy the statutory requirements for establishing family violence in accordance with cl.829.221(3) of schedule 2 of the Migration Regulations 1994. That reference contained a fairly obvious typographical error. It should have been a reference to cl.820.221(3). While the Tribunal did not expressly mention IMMI 12/116, the Tribunal did expressly say that there were relevant statutory requirements, which, obviously, a reasonably competent migration agent could have tracked down, even with the typographical error.
The applicant continued in his written submissions at paragraph 53:
The original agent then goes on holiday. The applicant retains a different agent, who furnished to the Tribunal another document, at CB 590-598. This was in response to the Tribunal identifying certificate material and giving the applicant an opportunity to comment (see CB 586).
It is not entirely clear that Mr Juvekar went on holiday. Mr Singareddy said in oral evidence that the applicant came to him because the applicant could not find Mr Juvekar. Mr Juvekar died a little before 4 February 2022. It is possible that in May 2018 he was sick.
In any event, the applicant contacted Mr Singareddy, who sent the Tribunal an email on 13 May 2018 enclosing:
(a)a seven page written submission which reads as if it had been written by the applicant himself;
(b)Gurdeep Kaur’s application and summons for an intervention order against the applicant;
(c)the interim intervention order made against the applicant protecting Gurdeep Kaur;
(d)a statutory declaration made by the applicant on 13 May 2018 on form 1040 which simply referred to the enclosed covering letter (which is presumably the written submission); and
(e)a translation of an information report in which Gurdeep Kaur reported to the police in India that her previous husband, Ramesh Kumar, kidnapped her son.
The statutory declaration made by the applicant on 13 May 2018 was headed “Statutory declaration relating to family violence”. It said in large letters at the beginning:
Before completing this declaration
Please ensure that you have read the explanatory notes that accompany this statutory declaration
Part D of the form said:
Part D — Competent person to complete
9 Your full name
10 What occupational group of competent persons do you belong to?
(Competent persons are prescribed in the Migration Regulations, as outlined on page 3 of the guidelines at the front of this form.)
Please attach to this form evidence that you meet the prescribed definition of a competent person (eg. evidence that you are a member of the Australian Association of Social Workers; evidence that you are a registered nurse and that you are currently employed as a registered nurse.)
11What evidence is there that indicates to you that the alleged victim is the victim of relevant family violence?
Please give details, citing:
•specific incidents of family violence, including details of physical violence and threats of violence; and, if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
•the name of the person whom the conduct of the alleged perpetrator was towards; and
•identification of the relationship between the alleged victim and the person wham the conduct was towards;
•dates on which the incidents occurred;
•the impact of these incidents on the alleged victim, including physical, emotional and state of mind.
For information about what you are required by the Regulations to provide, please refer to the definition of relevant family violence on page 2 and Responsibilities of competent persons on page 3 of the guidelines at the front of this form.

The explanatory notes accompanying the form 1040 were not provided to the court. However, I daresay that they accurately set out the requirements of IMMI 12/116. The applicant was in possession of form 1040, because he signed it. He either was in possession of the explanatory notes, or he, or at least his agent, was alerted by the form to their existence and importance. The applicant may not have been able to read them, but his agent certainly could.
In any event, the applicant continued in his written submissions:
54.The document at CB 590-598 set out pertinent claims of family violence against the former sponsor (see under the heading “2. Family Domestic Violence” on CB 593-594). The claims are generic and imprecise. But the overall message of this heading and its contents is tolerable clear. Oddly, the document also referred to intervention orders, but these were against the applicant and not helpful to him (later, these were removed). More oddly, the document addressed matters that were irrelevant to the case at hand.
55.At CB 595, this document acknowledges the end of the relationship and mentions, non sequitur, Form 1040 and attaches a blank form of that kind (CB 603-607) signed by the applicant. Was the second agent seeking to make a valid family violence claim? Again, it can’t have been an honest attempt for the same reasons as the first agent.
As noted above, the statutory declaration made by the applicant on 13 May 2018 was not completely blank. It gave the applicant’s name and address, ticked a box saying that he was claiming family violence against himself, identified Gurdeep Kaur as the perpetrator of the family violence and answered two questions by referring to the attached or enclosed covering letter. That seems to be a reference to the written submission emailed to the Tribunal on 13 May 2018.
The applicant continued:
56. The original agent returns from holiday, seemingly picks up the file, and at CB 613, responding to the invitation to comment in relation to the certificate material, refers again to domestic violence; but he does not take any step to assist the applicant to make a valid claim.
57.It was in these circumstances that the Tribunal came to make its decision.
In oral submissions, the applicant argued that Mr Juvekar and Mr Singareddy were so incompetent that the only reasonable course for the Tribunal was to go back to the applicant and say:
Are you trying to make a valid family violence claim? If so, do you wish to submit the required evidentiary material?
That is almost exactly what the Tribunal did in its post-hearing invitation to comment dated 8 May 2018 where it said:
This [s.375A] material is not relevant as the sponsorship has been withdrawn and as such cl.820.221(1) is not met. The genuineness of the relationship will be considered if and when the statutory requirements for family violence as per cl.829.221(3) (sic) are met.
The applicant conceded that the Tribunal had done enough to put a competent migration agent on notice of the requirements to establish the family violence exception. However, the applicant submitted that the material provided by Mr Juvekar and Mr Singareddy was so inadequate that the Tribunal should have asked the questions quoted above, and that might have prompted the applicant to get a better migration agent.
The applicant relied on Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; (2020) 385 ALR 212; [2020] HCA 46. In that case, the High Court reiterated the high threshold required to make out a case of legal unreasonableness: [27]. The High Court found that the high threshold was met in CHK16, because the Immigration Assessment Authority knew in that case that the agent had lodged submissions that were not about the applicant but were about a completely different person. The High Court considered that, if the Authority had written to the agent, pointing that out, the agent may well have provided submissions about the correct person: [30].
The High Court considered that the high threshold was not met in DUA16, because the submissions in that case only concerned a few references to the incorrect person, and the Authority disregarded them.
CHK16 is distinguishable. That is partly because CHK16 is so extreme, as the High Court acknowledged. In addition, it is because, in the present case, the Tribunal had no reason to suppose that the applicant could ever provide the appropriate evidence. He had been to a psychologist multiple times, and the psychologist’s letters only addressed the allegation of the applicant perpetrating family violence against Gurdeep Kaur, and the claim of the applicant suffering psychological distress from the breakdown of his relationship. This was not a case where there were mere technical deficiencies in the psychologist’s evidence that could be readily corrected.
Moreover, although the applicant had been given as much time as he wanted to provide additional evidence, there was not a hint that he would ever be able to provide a second type of evidence of the sort mentioned in IMMI 12/116, including:
(a)a medical report;
(b)a statement made to the police;
(c)a report from a child protection authority; or
(d)a statutory declaration made by a social worker.
Additionally, the applicant, and his agent, had in their possession form 1410 and form 1040 that both referred to the evidentiary requirements for establishing family violence. The applicant, and his agent, also had the benefit of the material sent by the delegate, twice. If the applicant was not able to gather the appropriate evidence with all of that information, it is difficult to see how the Tribunal could have said anything more to point the applicant in the right direction.
While the Tribunal could have spoken directly to the applicant at the hearing, it was not unreasonable at that point for the Tribunal to have waited to see what the applicant provided. Following the hearing, the Tribunal did write to the applicant, via his agent, and mentioned the statutory requirements for establishing family violence.
I am not persuaded that it was unreasonable, in all of the circumstances of this case, for the Tribunal to have not taken further steps to alert the applicant to the requirements of IMMI 12/116. It is, of course, for the applicant to make out his case. The form 1410 and the form 1040 pointed the applicant in the right direction. It was not unreasonable for the Tribunal to form the view in the present case that the evidentiary material required by IMMI 12/116 was not provided because it was not obtainable. This ground is not made out.
GROUND 7
Ground 7 in the amended application filed on 26 July 2022 is:
The decision of the Tribunal is affected by the fraud of the applicant’s migration agents.
Particulars
a.The case concerns a partner visa application, where the sponsor withdrew her sponsorship during the Tribunal review. At the hearing before the Tribunal, it is possible, but far from clear, that the applicant was seeking to obtain the partner visa under the family violence exception. At the conclusion of the hearing the review was adjourned to allow for further material to be furnished; it is far from clear that this was to be the material required for making a valid family violence claim.
b.Some material was furnished, but it was not adequate to make a valid family violence claim was not furnished (sic). Instead, allegations of family violence were made through, essentially, correspondence to the Tribunal.
c.The applicant was not told by his agents about the required components of a valid family violence claim and so, did not know that the Tribunal was not being provided with the required materials.
d.The applicant put forward, to his agents and to the Tribunal, evidence that he had been the victim of family violence. The agents then put forward half-baked material, prepared by themselves and falsely represented as being from the applicant directly, which identified the issue of family violence.
e.But they did not even attempt to make a valid family violence claim. The post-hearing material was obviously deficient under IMMI 12/116.
f. The agents received money for doing this.
g.No competent or honest migration agent would submit material of that kind, nor accept money for such woeful service. It cannot sensibly be said that the agents were confused in any way. They both referred to one of the required forms for making a valid family violence claim.
h.The only rational inference presently available is: to extract money from the applicant without having to do much work.
i.It cannot have been mere incompetence or negligence. The agents seemingly knew of the existence of statutory requirements for making valid family violence claims, were afforded time by the Tribunal to attend to assisting the applicant to obtain the required information under IMMI 12/116, and chose to do nothing about it.
j.They seemingly received money on a false basis, in that they never intended to do the work that was required to make a valid family violence claim. For, had they intended to guide the applicant through that process, they would have at least written to the applicant's psychologist with instructions that he prepare a statutory declaration addressing IMMI 12/116.
k.They seemingly deceived the applicant into believing that he would receive competent and honest services, took his money, but never intended to provide the required services. This fraud deceived the Tribunal into believing, falsely, that the applicant had put forward his best attempt to meet the evidential requirements for making a valid family violence claim.
l.This stultified the exercise of its jurisdiction in that it wrongly believed the applicant had put forward his best case, and it deprived the applicant of a second hearing as contemplated in the first hearing.
It is a very serious matter to allege fraud. Fraud must be clearly alleged and clearly proved, to the Briginshaw standard, although it can be established by proper inferences. The applicant accepted that his case for fraud was entirely circumstantial. Where other inferences are equally open on the evidence, an applicant will not succeed in an allegation of fraud.
The seminal case on fraud by migration agents is SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; (2007) 96 ALD 510; (2007) 237 ALR 64; (2007) 81 ALJR 1401; [2007] HCA 35 where the High Court held:
51.No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.
52.The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj.
53.The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
(citations omitted)
The critical facts in SZFDE were that the migration agent, having taken payment from the applicants, advised them not to attend a hearing before the Tribunal in case it emerged that he was not registered as a migration agent.
The applicant in the present case particularly relied on DUA16. In that case, the High Court said:
1.… CHK16 and DUA16 paid a registered migration agent to provide submissions on their behalf. It was found, and it is now common ground, that the agent’s conduct was fraudulent because it consisted of her concealing from her clients that she intended to use a pro forma submission with the belief that if she disclosed that to her clients they would not have been prepared to pay for her professional services. The agent acted fraudulently in up to 40 cases including in the cases of CHK16 and DUA16.
2.In the case of CHK16, the agent, acting fraudulently, provided submissions where the entirety of the personal circumstances concerned the wrong person. The Authority was unaware of the agent’s fraud. The Authority noticed that the submissions concerned the wrong person yet did not seek to obtain the correct submissions and any new information about the correct applicant. Instead, it had regard to the submissions concerning generic information and legal issues but disregarded the information concerning the personal circumstances of the wrong person.
3.In the case of DUA16, the agent, again acting fraudulently, provided submissions that contained information relevant to DUA16’s application and some information relevant to a different applicant. The Authority, constituted by a different member and again unaware of the fraud, concluded that those latter references had been included by mistake.
4.… For the reasons below, the decisions were not vitiated by the agent’s fraud. …
…
15.The insistence by this Court in SZFDE that a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Tribunal, was appropriate because grounds of judicial review arise by implication from the statute which provides the jurisdiction to make the decision. Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently, so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, “there are sound reasons of policy” why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.
16.In the Federal Circuit Court, Judge Riethmuller correctly concluded that in the cases of both CHK16 and DUA16 the Authority had not been misled by the extraneous material nor had it been precluded from considering other material that was before it. However, his Honour set aside both decisions of the Authority on the basis that the proper performance of the Authority’s functions had been stultified by the conduct of the agent.
17.An appeal to the Full Court of the Federal Court was dismissed by a majority of the Court. In the majority, Mortimer J found that the agent had made a series of false representations to the Authority which misled the Authority about (i) what the agent had been instructed to put to the Authority, (ii) the factual nature of the claims and their connection with applicable country information, and (iii) whether CHK16 and DUA16 had anything at all to say about why the Authority should accept the factual basis for their claims and its connection with the country information. Her Honour concluded that the Authority’s review had been subverted in each case because it determined the review by reference to matters which included the fraudulently provided submissions. Wheelahan J generally agreed with Mortimer J, observing that the main feature of the first respondents’ cases was that in the discharge of its statutory review function the Authority took account of submissions that contained false information and which were prepared in the ostensible discharge of a retainer that was procured dishonestly. Griffiths J dissented. His Honour held that the Authority had been aware of the errors in the submissions and the Authority had not proceeded on the basis of a presumption of regularity.
18.In this Court, the Minister correctly submitted that, as a ground of judicial review, fraud must affect a particular duty, function, or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense. In oral submissions, CHK16 and DUA16 submitted that the agent’s fraud had stultified the “core review function” in s 473CC. The only particular aspect of that core review function that was said to have been stultified was that the Authority had requested submissions in a Practice Direction and had received fraudulent submissions.
19.The duty in s 473CC to conduct a review is contained in Div 2 of Pt 7AA. The Authority is required to affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation. Section 473CC says nothing about the manner of conducting the review: the effect of sub-s (1) is to impose a duty on the Authority to reach a decision, with subs (2) providing for the decisions that may be reached. The manner in which the review must be conducted is the subject of Div 3 of Pt 7AA.
20.Whether or not the duty in s 473CC is properly described as a “core review function”, it was a duty that was performed by the Authority. The Authority affirmed the decision of the delegate with respect to CHK16 and DUA16 respectively. Whatever effect the fraud might be said to have had on the manner or process of decision-making in the abstract, it did not prevent or affect the Authority’s duty to conduct a review in accordance with the process described in Div 3 and to reach an outcome.
21.The only particular power of the Authority upon which CHK16 and DUA16 relied as having been stultified by fraud was the power in s 473FB for the President of the Authority to issue Practice Directions. But although CHK16 and DUA16 were correct that the Authority had requested submissions in a Practice Direction made under that power, and that the Authority had received fraudulent submissions, the power to make Practice Directions was entirely unaffected by the agent’s fraud. The effect of the agent’s fraud on the action that either CHK16 or DUA16 would have taken to provide submissions and new information according to the Practice Direction did not affect the President's power to issue Practice Directions in the first place.
22.In each of these appeals, the agent’s fraud did not contribute in any adverse way to the exercise of any duty, function, or power by the Authority. The approach of Griffiths J in dissent was correct. …
(citations omitted)
DUA16 makes it clear in paragraph 18 that an essential element of a fraud claim is that:
… as a ground of judicial review, fraud must affect a particular duty, function, or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense.
In his written submissions filed on 1 August 2022, the applicant said at paragraph 20 that:
In these circumstances, there is a valid allegation that the agents engaged in public law fraud. They seemingly deceived the applicant into believing that he would receive competent and honest services, took his money, but never intended to provide the required services. This fraud deceived the Tribunal into believing, falsely, that the applicant had put forward his best attempt to meet the evidential requirements for making a valid family violence claim. And this led to the withholding of a second hearing. This stultified the exercise of its jurisdiction.

This argument cannot succeed. A second hearing would not have assisted the applicant. What he had to do, to put forward a valid family violence claim, was submit certain types of documents. A further hearing would have been superfluous.
In his written submissions in reply filed on 26 October 2022, the applicant said at paragraph 10 that:
… any fraud of the kind alleged obviously stultified the Tribunal’s jurisdiction to consider whether a valid (in the sense of compliant) “family violence claim” had been made by the applicant.
This argument is exactly what the High Court warned against in DUA16, namely, an allegation of fraud in the abstract. Moreover, the Tribunal clearly was able to consider whether a valid (or compliant) family violence claim had been made. No such claim was made.
At paragraph 8 and following of his closing written submissions on the fraud ground filed on 27 February 2023, the applicant identified the particular duty, function or power that he relied on as s.358(1) of the Act. That subsection provides that:
Documents to be given to the Tribunal
An applicant for review by the Tribunal may give the Tribunal:
(a)a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b)written arguments relating to the issues arising in relation to the decision under review.
Obviously, s.358(1) of the Act does not expressly give the Tribunal a duty, function or power. It gives the applicant an opportunity.
The Minister noted in his closing written submissions on the fraud ground filed on 14 March 2023 at paragraph 70 that s.358(1) of the Act does not impose a reciprocal duty on the Tribunal to consider material provided under s.358(1) of the Act. The authority cited for that proposition was Hinton v Minister for Immigration and Border Protection (2015) 146 ALD 184; [2015] FCA 408, where McKerracher J said:
43.Although s 358 of the Migration Act permits the applicant to provide “a written statement in relation to any matter of fact the applicant wishes the Tribunal to consider”, it is difficult to see, on a plain reading or as a matter of policy, that s 358 creates a corresponding duty on the Tribunal to consider a statement provided by an applicant. That is partly because of the content of s 359, which I will come to …
…
45.Secondly, if there were to be such a duty, it would have been easy for the legislature to express it in the clear terms of the statutory command which immediately follows s 358 in s 359 of the Migration Act. It provides:
359 Tribunal may seek additional information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
...
(emphasis added by McKerracher J)
While Hinton only refers to a duty on the Tribunal, there is similarly no reason to consider that s.358(1) of the Act imposes a power or function on the Tribunal. Of course, the Tribunal has the general power, function and duty to consider the matter before it. However, that just takes us back to the warning of the High Court in DUA16 that, to vitiate a Tribunal decision, the fraud must affect a particular statutory duty, function or power, rather than the process of decision making in an abstract sense.
The applicant’s response to Hinton is at paragraphs 25 and following of his written submissions in reply on the fraud ground filed on 21 March 2023. The applicant argued that s.358(1) of the Act is a critical provision. However, even if it is, Hinton is binding on this court. Its effect, in combination with DUA16, is that the particular statutory provision identified by the applicant does not provide a sufficient foundation for the fraud argument.
It follows that ground 7 must be dismissed.
For completeness, I will briefly address some other matters. The applicant’s final summary of his argument on fraud in his closing oral submissions was that the present case was like SZFDE. That was said to be because, in SZFDE, the Tribunal was misled into thinking that the applicant did not wish to attend the hearing and, in the present case, the Tribunal was misled into thinking that the applicant’s best case was as set out in the document provided by Mr Singareddy on 13 May 2018.
The Tribunal in its reasons for decision in SZFDE said that:
The applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.
Obviously, the applicant not attending the hearing in SZFDE could have made a very significant difference in that case. However, in the present case, it seems unlikely that the applicant could have put forward a significantly better case. It will be recalled that IMMI 12/116 requires two items of evidence, each of a different type from the list in the schedule to IMMI 12/116. As the Minister pointed out, there is nothing to suggest that the applicant, if properly advised, could have put forward appropriate evidence as required by IMMI 12/116. The Tribunal, in all the circumstances of this case, could have reasonably formed the view that the applicant did not have an appreciably better case to put. That is especially so in circumstances where Gurdeep Kaur had said that the relationship ended because the applicant was in a relationship with another woman, and the applicant’s complaint to the psychologist was that his relationship with Gurdeep Kaur had ended, not that she had perpetrated family violence against him. Those circumstances did not completely exclude the possibility of family violence, but they do diminish the likelihood of it having occurred, or of the applicant being able to procure the appropriate evidence. It appears therefore that the conduct of Mr Juvekar and Mr Singareddy did not cause any practical injustice.
The Minister submitted, if the applicant had been disabled by fraud from providing appropriate documents under IMMI 12/116, that would not have subverted s.358(1) of the Act. That was said to be because such documents are not “a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider”. I do not accept that argument. I consider s.358(1)(a) of the Act to be broad enough to include the statutory declarations and other documents described in IMMI 12/116.
Mr Singareddy did not defraud the applicant because he told him that he knew nothing about the family violence exception and advised him to find another migration agent who had the appropriate knowledge and experience. The applicant said that he could not get another agent because he had no money to pay them. The applicant, contrary to his claims, did not pay Mr Singareddy any money at all. Mr Singareddy did not defraud the applicant. Mr Singareddy did not have a dishonest intention, or a reckless indifference, such that his conduct could have amounted to a fraud on the Tribunal. Mr Singareddy simply attempted to help the applicant, albeit in an inept way. That is not fraud.
I do not accept that the applicant has proved, on the Briginshaw standard, that Mr Juvekar defrauded the applicant or the Tribunal. It seems to me to be reasonably likely that Mr Juvekar tried to advise the applicant in accordance with IMMI 12/116, but the applicant did not understand what was required, or did not bother to do what was required, or did not in reality meet the requirements of IMMI 12/116. Mr Juvekar did not have the dishonest intention, or reckless indifference, necessary to establish fraud. He had a difficult client who did not always act in his own best interests. Mr Juvekar was not fraudulent.
It is also important to remember paragraph 53 of SZFDE, which is as follows:
The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
(citations omitted)
The present case does not concern any provision of the Act as central as s.425 and s.426A of the Act. As French J, as his Honour then was, observed, bad or negligent advice or other mishaps do not vitiate a Tribunal decision.
CONCLUSION
As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.
Associate:
Dated: 20 July 2023

File number:	MLG 1716 of 2018
Judgment of:	JUDGE RILEY
Date of judgment:	20 July 2023
Catchwords:	MIGRATION – Administrative Appeals Tribunal – temporary partner visa – whether the Tribunal unreasonably failed to inform the applicant that his evidence needed to satisfy the requirements of IMMI 12/116 – whether there was a fraud on the Tribunal.
Legislation:	Migration Act 1958 s.65, 358(1), 425 and 426A Migration Regulations 1994 reg 1.23, schedule 2 cl.820.221 Legislative Instrument IMMI 12/116
Cases cited:	Hinton v Minister for Immigration and Border Protection (2015) 146 ALD 184; [2015] FCA 408 Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; (2020) 385 ALR 212; [2020] HCA 46 Minister for Immigration v Gupta [2022] FCAFC 51 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; (2007) 96 ALD 510; (2007) 237 ALR 64; (2007) 81 ALJR 1401; [2007] HCA 35
Division:	Division 2 General Federal Law
Number of paragraphs:	183
Dates of hearing:	22 and 23 November 2022 and 31 January and 19 April 2023
Place:	Melbourne
Counsel for the Applicant:	Angel Aleksov
Solicitor for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the First Respondent:	Jonathan Barrington
Counsel for the Second Respondent:	No appearance
Solicitor for the First and Second Respondents:	Mills Oakley

MLG 1716 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GHANSHAM GHANSHAM Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	judge riley
DATE OF ORDER:	20 July 2023