Gill v Minister for Immigration

[2013] FCCA 2122

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2122

Catchwords:
MIGRATION – General skilled visa – whether the decisions of the Minister’s delegate and the Migration Review Tribunal were affected by fraud.

Cases cited:
Minister for Immigration and Citizenship vSZLIX (2008) 100 ALD 443; (2008) 245 ALR 501; [2008] FCAFC 17
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

Applicant: INDERJIT SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 473 of 2013

Judgment of: Judge Riley

Hearing date: 20 November 2013

Date of last submission: 20 November 2013

Delivered at: Melbourne

Delivered on: 11 December 2013

REPRESENTATION

Counsel for the Applicant: Tom Hurley

Solicitors for the Applicant: Ravi James Lawyers

Counsel for the First Respondent: Mr B D Kaplan

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The application filed on 12 April 2013 and amended on 23 October 2013 be dismissed.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 473 of 2013

INDERJIT SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for writs of certiorari and mandamus in respect of:

   a)a decision made by a delegate of the Minister; and  

   b)a decision made by the Migration Review Tribunal.

2. The applicant claimed that those decisions were vitiated by fraud on the part of the applicant’s migration agent.  The applicant said that an unregistered migration agent by the name of Mr Narendra Sharma had applied on the applicant’s behalf for a general skilled migration visa when the applicant had in fact wanted a student visa.  

3. In the application to the Tribunal, there was a statement that the applicant needed a Punjabi interpreter.  The court arranged an interpreter for the applicant.  However, at the commencement of the hearing, his counsel said the statement in the application to the Tribunal was an error.  Counsel said that the applicant did not need an interpreter as he is fluent in English.  The interpreter was allowed to leave and the cross examination of the applicant proceeded without the assistance of an interpreter.

Grounds of the application

1. The first ground of review in the application filed on 12 April 2013 and amended on 23 October 2013 is:

   The Migration Review Tribunal (‘the Tribunal’) acted in excess of or did not have jurisdiction to review the purported decision of the delegate because there was no valid visa application and therefore no valid decision by the delegate.

   Particulars

   (a)The application form was lodged online by Mr Narender Sharma.

   (b)The applicant was not told of the lodgement of the application, did not see it and was not given a copy of it.

   (c)The applicant did not know of the visa or sub-class contained in the application.

   (d)The applicant was at the relevant time unable to satisfy the criterion for the visa applied for in the application.

   (e)The answers to many of the material questions contained in the application were incorrect and were not provided by, or with the knowledge or consent of, the applicant.

2. The second ground of review in the application filed on 12 April 2013 and amended on 23 October 2013 is:

   In the alternative, the Tribunal acted in excess of or did not have jurisdiction to review the purported decision of the delegate or the decision of the Tribunal was otherwise vitiated because the purported decision of the delegate was vitiated by the fraudulent conduct of Mr Narender Sharma. This Court has jurisdiction in relation to the decision of the delegate because, by reason of the fraud, the decision of the delegate was not a privative clause decision or a purported privative clause decision for the purposes of s 476(2)(a), s 476(4) and s 5E of the Migration Act.

   Particulars

   (a)Mr Narender Sharma (‘Mr Sharma’) represented to the applicant that he was a migration agent.  Mr Sharma is not and was not at the relevant time a registered migration agent.  Mr Sharma knew that the representation by him was incorrect and that the applicant would rely upon it.

   (b)Mr Sharma provided erroneous advice to the applicant as to which visa class was appropriate to the applicant.

   (c)Mr Sharma requested fees from the applicant which the applicant paid.

   (d)Mr Sharma represented to the applicant that he would take care of the documents.

   (e)If the applicant had known that Mr Sharma was not a migration agent he would not have paid him any money or consulted him.

   (f)In breach of s 280 of the Migration Act, Mr Sharma gave immigration assistance to the applicant.

   (g)The information provided in the online visa application in support of the application was materially incorrect and was not based on information which the applicant had provided.

   (h)The applicant was unable at the relevant time to satisfy the criteria for the visa class applied for in the online application.

   (i)The contact information provided in the online application form was materially incorrect in that it contained an e-mail address different from the one which the applicant had provided to Mr Sharma.

   (j)Mr Sharma did not request the applicant to complete, the applicant did not complete, and the applicant was unaware of, an approved form appointing Mr Sharma as the applicant’s authorized representative.

   (k)By reason of the provision of the incorrect e-mail address, the applicant never received any communications from the Respondent’s Department.

   (l)Mr Sharma did not inform the applicant of:

   (i)   the filing of the online application or

   (ii)    the request from the Department dated 14 May 2012 for further information.

   (m)Mr Sharma did not provide to the applicant and the applicant did not see

   (i)the online application;

   (ii)the request from the Department dated 14 May 2012 for further information;

   (iii)the decision record of the delegate refusing the visa application;

   (n)The delegate was entitled to assume that the application was brought upon advice with the knowledge and consent of the applicant.

   (o)By reason of the conduct of Mr Sharma the application was not brought upon advice with the knowledge and consent of the applicant and the applicant was placed in a position where he was unable to apply for a visa of the correct class.

   (p)By reason of the above, the fraudulent conduct by Mr Sharma was a fraud on the delegate or in the alternative was a fraud which otherwise vitiated the decision of the delegate.

3. The third ground of review in the application filed 12 April 2013 and amended on 23 October 2013 is:

   In the alternative, the decision of the Tribunal was vitiated by the fraudulent conduct of Mr Narender Sharma.

   Particulars

   (a)The applicant relies upon the Particulars to Ground 2 and the following particulars.

   (b)Mr Sharma did not provide to the applicant a copy of the application to the Tribunal.

   (c)The applicant did not complete the application to the Tribunal.

   (d)Mr Sharma did not inform the applicant of the time limit in bringing the application to the Tribunal.

   (e)Mr Sharma knew or ought to have known of the time limit for bringing an application to the Tribunal.

   (f)By reason of the conduct of Mr Sharma the applicant applied for a visa of the wrong class and was prevented from bringing an application to the Tribunal within time to review the decision of the delegate.

Mr Sharma

1. The material before the court raised a number of variations on the name Narendra Sharma, being:

   a)Narendra Sharma;

   b)Narender Sharma;

   c)Narinder Sharma;

   d)Narendra Kumar Sharma;

   e)Narender Kumar Sharma; and

   f)Narinder Kumar Sharma.

2. The Minister initially sought to dispute that the applicant’s migration agent was unregistered.  However, the court reminded counsel that, as a model litigant, the Minister should not dispute a fact which he knows to be true, and the Minister is taken to know all the matters that officers in his portfolio know.  It was ascertained that the Migration Agents Registration Authority is within the Minister’s portfolio.  After some enquiries were made, it was ascertained that, other than Narendra Kumar Sharma who is registered as a migration agent in Queensland, there was no migration agent who had been registered in Australia in 2011, 2012 or 2013 with the name:

   a)Narendra Sharma;

   b)Narender Sharma;

   c)Narinder Sharma;

   d)Narendra Kumar Sharma;

   e)Narender Kumar Sharma; or

   f)Narinder Kumar Sharma.

3. In closing submissions, the Minister’s counsel initially sought to submit that the court could find that the applicant’s general skilled migration visa application had been lodged by the applicant himself, rather than by Mr Sharma.  However, when reminded that he had not put that proposition to the applicant in cross examination, counsel withdrew that submission.

4. As the applicant’s evidence on the point was not challenged, I accept that Mr Sharma lodged the general skilled protection visa on the applicant’s behalf on 10 August 2011.

5. In cross examination, the applicant was shown two photographs of the Narendra Kumar Sharma who is a registered migration agent in Queensland.  The applicant denied that he had ever seen the person in the photographs before.  He said that he had met the Mr Sharma who acted for him on a number of occasions.  As neither of these points were challenged, I accept the applicant’s evidence about them.  That is, I accept that the applicant met, a number of times, the Mr Sharma who acted for him and that he has never seen the Narendra Kumar Sharma who is a registered migration agent in Queensland. 

6. Consequently, I find that the Mr Sharma who lodged the general skilled visa application for the applicant is not the Narendra Kumar Sharma who is a registered migration agent in Queensland.  Rather, the Mr Sharma who lodged the applicant’s general skilled visa application is not, and was not at any material time, a registered migration agent.

7. On 8 November 2013, Judge Burchardt, in whose docket this matter originally was, made orders that the applicant attempt to serve “Mr Narender Sharma” by 11 November 2013 and file an affidavit in relation to the attempted service by 12 November 2013. 

8. On 12 November 2013, Ms Chan, who said she was a lawyer “attached” to the applicant’s solicitors, affirmed an affidavit in which she said:

   Arrangements were made to attend to service of the documents as per orders of the Court on Mr Narender Kumar Sharma at the address ascertained to be 15 Coppin Street, Richmond VIC 3121.

9. The applicant confirmed in oral evidence that his migration agent’s name was Mr Narendra Sharma.  Ms Chan did not explain why an attempt was made to serve Mr Narender Kumar Sharma.  Nor did Ms Chan explain how it was ascertained that an appropriate address at which to attempt service was 15 Coppin Street Richmond.  She said in cross examination that her principal had instructed her to arrange to attempt service at that address.  However, she said that he did not tell her specifically how he had ascertained that address.  Ms Chan said that she had not undertaken an electoral roll search for Mr Sharma. 

10. An affidavit of attempted service affirmed by a process server was also filed on 12 November 2013.  Leaving aside matters of supposition and hearsay, it basically said that service on Mr Sharma at 15 Coppin Street Richmond was attempted but was unsuccessful.

11. Towards the end of his cross examination, it emerged that the applicant had two mobile telephone numbers for Mr Sharma.  My associate, in open court, with the agreement of the parties, telephoned both of those numbers.  However, both calls went through to a message service without identifying the person whose message service it was.

12. The applicant initially said that he did not give those telephone numbers to his solicitors to facilitate service of Mr Sharma but later said he might have.  Later again, the applicant said that his solicitors had called Mr Sharma on the mobile telephone numbers but then said that he was not sure that he had given the telephone numbers to his solicitors.  The applicant’s evidence on this point was internally inconsistent.  It detracts from his credibility.

13. In any event, there was no evidence that the solicitors used the mobile telephone numbers in an effort to locate Mr Sharma.  I consider that, on the evidence, the efforts made by the applicant and his solicitors to locate and serve Mr Sharma were wholly inadequate.  An obvious line of enquiry, being the telephone numbers, was not pursued.  There was no evidence of usual searches, such as electoral roll and white pages searches, being undertaken.  There was no explanation of why service was attempted at 15 Coppin Street Richmond.  The inadequate efforts to serve Mr Sharma detract from the applicant’s credibility.

14. Needless to say, Mr Sharma was not before the court to respond to the allegation of fraud made against him. 

The visa application

1. The applicant is a citizen of India, who is now 24 years old.  He came to Australia on 1 May 2009 as the holder of a TU572 student visa valid to 20 September 2011.  He completed a short automotive engineering course, returned to India for a time, and came back to Australia on

   
   

   9 November 2010.

2. The applicant said in his affidavit affirmed on 23 October 2013:

   3.I first met Mr Narender Sharma in late November or early December 2010.  I was referred to him by a friend of Punjabi origin.  He told [me] that he was an Elder in the Punjabi Community in Melbourne and assisted many Punjabis with their criminal and migration matters.  He requested me to meet him at the foyer of 550 Lonsdale Street, Melbourne.  Then he sat with me at a table situated on the pavement of Lonsdale Street, attached to a coffee shop/restaurant in that building.  He told me his office was in the building.  We spoke in Punjabi.

   4.Mr Sharma told me he was a migration agent and other agents work with him.  He said he had lots of contacts with other migration agent lawyers and that he also had contacts within the Department of Immigration where he said he was well known.

   5.I told Mr Sharma that I wished to study automotive engineering in Australia.  He told me that this would be difficult and also expensive.  He said that I could not get a student visa.  He said that he would get me a visa with work rights instead, which will allow me to stay for approximately 2 years, and if needed, study party time in the evenings.  I believed what he told me.

   6.He told me that he would charge a fee for his work.  He said it would cost me $2,500.00.  He asked for, and I gave him, my passport, my certificate 3 in Automotive Mechanical Technology and my IELTS certificate.  Now produced and show to me are copies of those documents.  I also gave him my residential address, telephone number and e-mail details.  My e-mail address was and remains [email protected].

   7.About 2 months later, Mr Sharma telephoned me and we arranged to meet again.  He told me over the telephone that his fee would be $2,500.00 and that I should bring that money with me when I next met him.  I agreed.

   8.I met Mr Sharma again in the foyer at 550 Lonsdale Street.  I gave him the $2,500.00 in cash.  He asked me to sign a single page.  There was no hand-writing on the page.  He did not tell me what it was.  He said he was “doing the paperwork” for my application.

   9.Later Mr Sharma telephoned me and told me that my bridging visa was ready, that I should come and pick it up and that my application was fine.

   10.Following some inquiries by me about the progress, Mr Sharma rang me and told me that my application for the visa had been refused, and not to worry, as he would arrange to lodge a review to the Migration Review Tribunal.  …

   …

   13.It is on or about late May 2013 I saw a copy of the decision by the delegate from the office of my lawyers.  This was shown to me from a Court Book filed in this case.

   14.I first saw the visa application form also in late May 2013, from the Court Book.  …

   15.Some of the information in the visa application form is incorrect.  I knew nothing of this.  If I had known I would have made it plain to Mr Sharma that I do not hold a TRA assessment and that the visa class for which he applied was not appropriate.  He also included an e-mail address which was not my address.  Mr Sharma never gave me any form to sign appointing him as my authorised representative.  I have since been advised that I could have applied for a student visa.

   16.I have since been informed that migration agents are required to be registered.  If I had known that Mr Sharma was not a migration agent and was not a registered migration agent I would never have allowed him to act for me but would instead have asked him to introduce me to a registered migration agent.

   17.I have been shown a letter from the Department dated

   
   

   14 May 2012.  This letter is in the Court Book at pages 12 to 16.  The first time I saw this letter was in late May at my lawyer’s office.  Mr Sharma never told me of any request from the Department for further information.

3. It was not put to the applicant that the evidence set out above was not true. I accept that evidence.

4. There was no evidence that the applicant would actually have qualified for a student visa at the relevant time.  That is, there was no evidence that Mr Sharma was wrong in saying that the applicant could not get a student visa. The applicant said in cross examination that he was happy for Mr Sharma to fill out the application form for him for the visa with work rights. 

5. The applicant agreed in cross examination that he gave Mr Sharma “free rein” to conduct his migration matters for him.

6. On 10 August 2011, Mr Sharma lodged an online application on behalf of the applicant for a general skilled migration visa, nominating motor mechanic as his occupation.  There was no mention in the application of Mr Sharma.  The application, being made online, was not signed by or on behalf of the applicant. 

7. In relation to paragraph 8 of the affidavit affirmed on 23 October 2013, there was virtually no explanation given to the court of what the single page that the applicant signed might have been.  The applicant said in cross examination that it was one of a “bunch” of pages that might have been an application form.  He said he did not read the document but just signed it.  He said that Mr Sharma said it was for visa purposes.  That evidence was not challenged and I accept it.

8. The application included the applicant’s correct street address and telephone number.  However, it also indicated the applicant’s agreement to the department communicating with him by email at the address [email protected].  The applicant denied that was his email address.  It was not put to the applicant that that evidence was not true and I accept it.  As Mr Sharma later learned that the visa application had been refused, I infer that Mr Sharma had access to emails sent to that email address.

9. The department sent the applicant a letter dated 14 May 2012 requesting further information, including evidence of competent English, a skills assessment and evidence of completion of 400 hours of work experience.  The applicant did not have a skills assessment and had not completed 400 hours of work experience.  It was common ground that the applicant did not meet the basic requirements for the general skilled migration visa. 

1. The department sent the letter dated 14 May 2012 by email to the address given in the application, namely, [email protected].  The applicant denied receiving that email.  That evidence was not challenged and I accept it.

2. The department sent a letter dated 22 October 2012 by email to [email protected] saying that the applicant’s general skilled visa application had been refused.  The reasons given were that the applicant had not provided evidence of competent English or a skills assessment.

3. The applicant said in oral evidence that what he had wanted all along was a student visa.  He said early in his cross examination that Mr Sharma had told him that he would make an application for a student visa for him after getting the visa with work rights.  Towards the end of his cross examination, the applicant said that he believed that Mr Sharma had already made an application for a student visa on his behalf. 

4. I do not accept the applicant’s late claim that he believed that Mr Sharma had made an application for him for a student visa.  That claim was not made:

   a)in either of the applicant’s affidavits;

   b)in either of his solicitor’s affidavits;

   c)in his written submissions which were prepared by counsel; or

   d)in his counsel’s oral submissions.

5. Indeed, in oral submissions, the applicant’s counsel submitted that the applicant had been confused on this point.  Counsel submitted that the proper finding was that the applicant had wanted a student visa but Mr Sharma had persuaded him to make an application for another type of visa.

6. The applicant’s claim that he believed that Mr Sharma had made an application for him for a student visa was a matter of recent invention.  It was inconsistent with the applicant’s own evidence that he believed Mr Sharma when he said that the applicant could not get a student visa and that Mr Sharma would get him a visa with work rights in the first instance and get him a student visa later.

7. I do not accept that the applicant was confused in relation to his claim that he believed that Mr Sharma had made an application for him for a student visa.  The applicant was adamant about this matter and said it repeatedly and with conviction.  I consider that his evidence on this point was false.   

Whether there was a fraud on the delegate

1. The applicant, at paragraph 15 of his written submissions, said that the fraud on the Minister’s delegate consisted of the alleged fact that:

   Mr Sharma had no actual or implied authority to complete the online visa application form as completed on behalf of the applicant.

2. The evidence does not support that contention.  The applicant’s own affidavit evidence was that:

   a)he wanted a student visa but Mr Sharma told him that he could not get one;

   b)Mr Sharma told him that he would get him a visa with work rights;

   c)the applicant immediately afterwards gave Mr Sharma:

   i)his contact details;

   ii)his passport;

   iii)his automotive engineering certificate; and

   iv)his IELTS results; and   

   d)the applicant when requested about two months afterwards gave Mr Sharma $2,500 and signed the document Mr Sharma gave him.

3. That evidence does not indicate that the applicant did not authorise Mr Sharma to apply on his behalf for a visa with work rights.  It indicates the opposite, that the applicant did give Mr Sharma that authority. 

4. Indeed, the applicant said in oral evidence that when Mr Sharma told him that he could get him a visa with working rights, the applicant said:

   Okay, I believe you, yes.

5. The applicant also said in oral evidence that he was “happy” for Mr Sharma to complete the application form on his behalf for a visa with work rights.

6. As the applicant’s counsel said in closing submissions, Mr Sharma persuaded the applicant to apply for a visa with work rights rather than a student visa.  That is what Mr Sharma did.  He had the applicant’s authority to do that. Nevertheless, the applicant said at paragraph 15 of his written submissions that Mr Sharma’s fraud on the applicant:

   vitiated the actual and ostensible authority provided to Mr Sharma by the applicant.

   and resulted in a fraud of the delegate.

7. It may be true that Mr Sharma’s fraud on the applicant vitiated Mr Sharma’s authority to lodge the online application on behalf of the applicant.

8. However, the question remains whether lodging the online application amounted to a fraud on the delegate.

9. The leading case on fraud in migration matters is SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189; (2007) 96 ALD 510; (2007) 237 ALR 64; (2007) 81 ALJR 1401; [2007] HCA 35. In SZFDE:

   a)the applicant's adviser claimed to be a registered migration agent when he was not;

   b)he charged the applicant a fee for his services in breach of s.281 of the Migration Act 1958 (“the Act”);

   c)he advised the applicant not to attend the Tribunal hearing for the spurious reasons that:

   i)the Tribunal was not accepting any visa applications at the time;

   ii)the applicant might say something at the hearing that would be inconsistent with what the adviser wished to say in a s.417 application; and

   iii)the adviser was doing what was best for the applicant, namely, making a s.417 application;

   d)the applicant accepted that advice;

   e)the adviser’s real reason for advising the applicant not to attend the hearing was that the adviser was not entitled to represent the applicant and her attendance at the Tribunal hearing might expose the adviser to a penalty of up to 10 years imprisonment;

   f)the adviser sent a response to hearing invitation form to the Tribunal saying that the applicant did not wish to attend the hearing; and

   g)in rejecting the applicant's claims, the Tribunal relied heavily on the fact that the applicant did not attend the hearing to enable the Tribunal to explore certain aspects of her claims.

10. In these circumstances, the High Court held at [51] that the agent had undoubtedly been fraudulent in his dealings with the applicant. In addition, the agent had stultified the operation of the critically important natural justice provisions in the Act. The consequence was that, by reason of the agent's fraud, the Tribunal “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review.” Consequently, there was a fraud on the Tribunal and the decision made by the Tribunal was no decision at all.

11. The High Court went on to say at [53] that:

    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.

12. The High Court noted at [32] that:

    the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.

13. However, that is not to say that a decision of the Tribunal can only be vitiated by fraud in the manner that arose in SZDFE. The High Court noted at [8] that “fraud is infinite in variety”.

14. In Minister for Immigration and Citizenship vSZLIX (2008) 100 ALD 443; (2008) 245 ALR 501; [2008] FCAFC 17, Tamberlin, Finn and Dowsett JJ said at [32] to [33]:

    32We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent’s acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal’s discharge of its imperative statutory functions in a manner which is adverse to a person seeking review can in turn be characterised as a “fraud on the tribunal”.

    33The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Part 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 and 368; [1938] ALR 334 at 342-2 and 344-5 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud. (emphasis added)

15. SZLIX makes three points that are presently relevant.  The first is that the actions of an unregistered migration agent do not constitute a fraud on the Tribunal, or a delegate, simply because the agent was unregistered.  The second is that a failure to notify, such as Mr Sharma’s failure to notify the applicant of the letter dated 14 May 2012, is not necessarily a fraud on the Tribunal or a delegate.  The third is that the untoward actions of an agent may be merely negligent or incompetent rather than fraudulent.

16. In the present case, it is not known why Mr Sharma did not tell the applicant about the letter dated 14 May 2012 requesting further information.  In the light of the Briginshaw principle, it does not seem to me to be proper on the basis of the evidence before the court to infer that Mr Sharma failed to convey the contents of that letter to the applicant for fraudulent reasons.  Unlike SZFDE, there does not seem to have been any particular benefit to Mr Sharma in not conveying that information to the applicant.  Mr Sharma may simply have been negligent or incompetent.

17. Moreover, it was common ground that the applicant did not have the information requested in the letter dated 14 May 2012 and was not in a position to get it.  Consequently, whether Mr Sharma conveyed to the applicant the contents of the letter dated 14 May 2012 could not have made a difference to the delegate’s decision.  As such, the failure to convey that information could not have “disabled [the delegate] from the due discharge of its imperative statutory functions”.  Consequently, it is difficult to see how it could have constituted a fraud vitiating the delegate’s decision.

18. There was no evidence that, if Mr Sharma had applied for a student visa on the applicant’s behalf, the student visa application would have been successful.  That is, there was no evidence that the applicant, at relevant times, met the criteria for the grant of a student visa.  Moreover, there was no evidence that the applicant, at relevant times, could have met the criteria for any type of visa at all.  In these circumstances, it has not been established that the actions of Mr Sharma prevented, or tended to prevent, the delegate from carrying out his statutory functions.

19. The applicant’s fundamental complaint is that Mr Sharma persuaded him to apply for a visa for which he was not eligible and took his money for that purpose.  It is not known why Mr Sharma applied on the applicant’s behalf for a general skilled visa for which the applicant was not eligible. Mr Sharma may simply have given the applicant bad or negligent advice.  It is by no means self-evident in the circumstances of this case that there was a fraud on the delegate. 

20. In the absence of any specific evidence of fraud on the delegate, as opposed to a fraud on the applicant, I can only conclude that the evidence before the court does not warrant a finding of any such fraud.  Consequently, on the facts, I do not accept the applicant’s claim that the delegate’s decision was vitiated by fraud. 

21. In these circumstances, it is unnecessary to consider the Minister’s arguments that this court has no jurisdiction to review the delegate’s decision even in circumstances of fraud.

Whether there was a fraud on the Tribunal

1. The applicant conceded that if the delegate’s decision were not vitiated by fraud, the Tribunal’s decision would have to stand.  That is because the application to the Tribunal was not made within time.  Consequently, the applicant conceded that, even if the Tribunal’s decision were vitiated by fraud, and the matter were remitted for rehearing, the same decision would have to be made.

2. As such, there is little to be gained by considering whether the Tribunal’s decision was vitiated by fraud.  However, for completeness, I will make findings of fact based on the evidence concerning the review by the Tribunal.

3. The applicant said in his affidavit affirmed on 23 October 2013:

   10.Following some inquiries by me about the progress, Mr Sharma rang me and told me that my application for the visa had been refused, and not to worry, as he would arrange to lodge a review to the Migration Review Tribunal.  He asked me to sign a page of a document.  He said that was for the Tribunal.  He did not show me the whole document.  He told this would cost extra money.  He did not give me a copy of the decision and never showed it to me.  He said that his fee would be $1,000 and that I also needed to give him $1600 for the lodgement fee.  This time we met at a different address, and not at Lonsdale Street, Melbourne.  I gave him the money.  He also asked me to sign a credit card authorisation.  He said that he would pay cash if the credit card payment was not accepted.

   11.I did not see the decision of the delegate at the time of before Mr. Narender Sharma asked me to sign the forms for the review to the Migration Review Tribunal.  I asked a Migration Agent in February 2013 to request a copy from the Department.  He told me a request was sent to the department, but no copy was provided.

   12.I first saw the decision of the Migration Review Tribunal on or about 28 March 2013.  This was sent to me.

   13.It is on or about late May 2013 I saw a copy of the decision by the delegate from the office of my lawyers.  This was shown to me from a Court Book filed in this case.

   14.I first saw the visa application form also in late May 2013, from the Court Book.  I first saw the application form to the Migration Review Tribunal in May 2013 from the court book.  There is handwriting on the form.  That is the first time I have seen that completed form.  Apart from my signature, the handwriting is not mine.

   …

   18.Mr Sharma never told me of any time limit to apply to the Tribunal.

4. The applicant said in cross examination that he asked Mr Sharma for a copy of his visa application and a copy of the delegate’s decision, but Mr Sharma did not provide them.  Notwithstanding that, the applicant said he was happy for Mr Sharma to make a review application to the Tribunal.

5. The applicant also said in cross examination that he understood that Mr Sharma had not given the department the applicant’s contact details for the purposes of his visa application.  Notwithstanding that, the applicant said that he still trusted Mr Sharma to apply for review by the Tribunal.

6. The applicant acknowledged in cross examination that his signature appears at CB39, which contains the declaration in Part I of the application to the Tribunal for review.  However, the applicant said in cross examination that he was not sure if he had signed that document at the time he met with Mr Sharma for the purposes of the application to the Tribunal for review.

7. In cross examination, the applicant was shown CB38, which contains the payment details in part H of the application to the Tribunal.  The applicant said that he gave Mr Sharma his credit card details, which appear on CB38.  The applicant acknowledged that the signature on CB38 looked different to the one on CB39.  The applicant said he had two signatures.  He said he used the one on CB38 now and used the one on CB 39 in India. The applicant denied signing the pages appearing at CB38 and CB39 at the same time. 

8. The applicant said that Mr Sharma did not give him CB38 to sign and he did not recall seeing it when he met Mr Sharma.  However, the applicant did say that Mr Sharma took his credit card details.  

9. The applicant was not able to explain how his signature appears on CB38 except by saying that perhaps Mr Sharma had taken the signature previously. 

10. The applicant was taken to paragraph 10 of his affidavit affirmed on

    
    

    23 October 2013, where he said:

    He also asked me to sign a credit card authorisation.  He said that he would pay cash if the credit card payment was not accepted.

11. The applicant denied receiving the page reproduced at CB38 from Mr Sharma and said that Mr Sharma had only given him one paper to sign.  He said that the paper had writing on it.  He said that when Mr Sharma asked him to sign a single piece of paper at the time of the Tribunal review, he used his new signature.  He said the new signature was the one on CB39, which is also the one on his passport.

12. The applicant denied in cross examination that Mr Sharma had showed him the whole 10 pages of the application to the Tribunal at the time that he signed the single page. The applicant could not explain how his two signatures appeared on the pages reproduced at CB38 and CB39, but suggested that perhaps Mr Sharma had got his signature when they met for the bridging visa.

13. The applicant eventually conceded that it was possible that he had seen and signed the documents reproduced at CB38 and CB39.  He then said:

    if somebody gave up papers … a file, and he said, “Just sign here and here,” what can do?

14. The applicant then agreed that he perhaps was not paying attention to the contents of the documents and said:

    If sometimes it’s like a book.

15. The applicant then said that he did not think that Mr Sharma showed him the whole 10 pages of the Tribunal review application when he may have seen and signed CB38 and CB39.

16. The applicant was taken to paragraph 6 of his affidavit affirmed on

    
    

    11 April 2013 where he said:

    [Mr Sharma] then contacted and told me that a further application needs to be made to the Migration Review Tribunal and asked me to sign the form, which I did.  He did not give or show me any decision from the Department but said he will do everything and for me to sign the form. 

17. The applicant was asked whether the form he signed was the 10 page application to the Tribunal.  The applicant said it was not and that Mr Sharma had only given him one page to sign.

18. The applicant was asked why his old signature that he claimed to have used in India appeared on his letter dated 19 February 2013 to the Tribunal (CB51).  He said that sometimes he uses his old signature in Australia. 

1. The applicant was taken to his letter at CB51 where he said:

   He asked me to sign forms, which I did.

2. The applicant said in cross examination that Mr Sharma has not given him forms but a single page to sign.  He held up a bundle of documents and said Mr Sharma had given him “that type of thing” with one page on top and said, “Sign it”.

3. The applicant was taken to paragraph 14 of his affidavit affirmed on

   
   

   23 October 2013 where he said:

   I first saw the application form to the Migration Review Tribunal in May 2013 from the court book. 

4. The application to the Tribunal was lodged on 28 November 2012.  The applicant was asked whether he conceded that he had at least seen parts of the application, being the pages reproduced at CB38 and CB39, before May 2013.  He said he was not sure.  The applicant was reminded of certain dates and was asked again whether he saw and signed the pages reproduced at CB38 and CB39 before May 2013.  He said that he signed them but did not know when because he signed only one page on “that day”.

5. After being taken to the Tribunal stamp on the review application, the applicant was asked again whether he had seen and signed the pages reproduced at CB38 and CB39 before May 2013.  The applicant agreed that he had.

6. Although the applicant had conceded that he may have seen and signed the pages at CB38 and CB39, he later said that he signed them but does not know when, as he only signed one page on “that day”.

7. The applicant’s evidence about his two signatures was inconsistent.  He said at first that his new signature was the one at CB38 but later said it was the one at CB39.  He said at first that he used his new signature in Australia and his old signature in India but later said he sometimes used his old signature in Australia.

8. The applicant’s evidence about when he had first seen the application to the Tribunal was inconsistent.  In his affidavit affirmed on

   
   

   23 October 2013, he said that he first saw that application in his solicitor’s office in May 2013.  He initially denied in oral evidence that he had seen any of that application before May 2013.  However, later in his oral evidence, he conceded that he had seen at least the parts of that application that are reproduced at CB38 and CB39.  He also eventually conceded that Mr Sharma had given him a bundle of documents with one page on top. In his affidavit affirmed on 11 April 2013, the applicant said that Mr Sharma asked him to sign the application form for the review by the Tribunal and he did so.

9. The applicant’s evidence about what he had signed was inconsistent.  He said repeatedly in oral evidence that he had signed only one page at the time of the application to the Tribunal and he did not know what it was.  However, in his affidavit affirmed on 11 April 2013, the applicant said that Mr Sharma asked him to sign the application form for the review by the Tribunal and he did so.

10. In his affidavit affirmed on 23 October 2013, the applicant said that Mr Sharma asked him to sign “a page of a document” but did not show him the whole document.  In his oral evidence, the applicant initially said that Mr Sharma gave him a single sheet of paper to sign.  Later, he conceded that Mr Sharma asked him to sign the page on top of a bundle of documents.

11. In his affidavit affirmed on 23 October 2013, the applicant said that Mr Sharma asked him to sign a credit card authorisation.  It was implicit in his affidavit evidence that he did so.  However, in his oral evidence, he initially denied signing the page reproduced at CB38.  Eventually, he conceded signing that page at some time but said he did not know when.

12. The applicant said in his letter to the Tribunal dated 19 February 2013 that Mr Sharma had asked him to sign forms, plural, which he did.  However, in his oral evidence, he said repeatedly that he had signed only a single sheet of paper in relation to the review application. 

13. I do not find the applicant to be a reliable witness.  I do not accept that the inconsistencies in the applicant’s evidence were the result of confusion.  I consider that the applicant attempted to give misleading evidence about the matters mentioned above in an effort to bolster his case.  I do not accept the applicant’s evidence on any matter on which he gave inconsistent evidence.

14. In any event, the applicant’s evidence does not support a finding of fraud on the Tribunal, as opposed to negligent or poor representation.  It is true that the application to the Tribunal was lodged out of time and therefore the Tribunal has no jurisdiction in the matter.  However, the applicant has not pointed to any specific action or advice on the part of Mr Sharma that points to fraud on the Tribunal, as opposed negligence or incompetence. As SZLIX indicates, the mere fact of an application being lodged out of time does not establish fraud.  The applicant has not pointed to any facts or circumstances that suggest that, through some deceit, the Tribunal was disabled from carrying out its statutory functions.

15. The applicant has to bear some responsibility for what happened to him.  He claims to speak English fluently.  However, he continued to give Mr Sharma “free rein” to act on his behalf even though he knew that Mr Sharma had not succeeded in obtaining a visa with working rights for him, and he knew that Mr Sharma had not given him a copy of the visa application or the delegate’s decision. 

16. Clearly, the applicant should not have signed documents without reading them.  He should not have given Mr Sharma money without insisting on seeing a draft of the documents that Mr Sharma proposed to lodge on his behalf.  Ideally, the applicant would have checked the Migration Agents Registration Authority website to see if Mr Sharma was registered.

Conclusion

1. As the applicant has not provided any evidence of fraud on the delegate or the Tribunal, the application must be dismissed with costs.  As the hearing took longer than usual, I will hear the parties on the question of costs.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  11 December 2013