Gill v Minister for Immigration
[2018] FCCA 272
•8 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILL v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 272 |
| Catchwords: MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – S&S Migration – fraud on the Tribunal – whether the applicant was indifferent to whether his agent would use dishonest or unlawful means to obtain a visa for him. |
| Cases cited: Briginshaw v Bringinshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34 |
| Applicant: | KHUSHWANT SINGH GILL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2341 of 2013 |
| Judgment of: | Judge Riley |
| Hearing dates: | 24 October and 21 November 2017 |
| Date of last submission: | 23 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 February 2018 |
REPRESENTATION
| Counsel for the applicant: | Angel Aleksov |
| Solicitors for the applicant: | Carina Ford Immigration Lawyers |
| Counsel for the first respondent: | Richard Knowles |
| Solicitors for the first respondent: | Clayton Utz |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Clayton Utz |
ORDERS
The application filed on 23 December 2013, amended on 5 May 2014 and further amended on 23 November 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2341 of 2013
| KHUSHWANT SINGH GILL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa.
The applicant applied for the visa on 3 May 2011. A delegate of the Minister refused the visa on 14 April 2012. The applicant applied to the Tribunal for review of that decision. On 20 July 2012, the Tribunal found that it did not have jurisdiction to determine the application, due to late lodgement. An application for review to this court resulted in the matter being remitted to the Tribunal by consent for determination according to law. The reason given was that the applicant had not been given proper notice of the delegate’s decision, so time had not begun to run. The Tribunal was reconstituted and affirmed the delegate’s decision on 16 December 2013.
The applicant lodged a second application for review in this court on 23 December 2013. That application for review was dismissed by another judge of this court on 5 February 2015: Gill v Minister for Immigration and Border Protection [2015] FCCA 1. The applicant appealed. The appeal was allowed by the Full Court of the Federal Court in Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142. The Full Court remitted the matter to this court for reconsideration according to law by a judge other than the primary judge. The Minister sought special leave to appeal to the High Court. However, special leave was refused.
The applicant’s case is that he approached S&S Migration, a firm of migration agents, to get a student visa. The agent fraudulently applied for a Skilled (Provisional) (Class VC) visa. To meet one of the requirements for that type of visa, the agent lodged with the skilled visa application a false Trades Recognition Australia skills assessment. The applicant argued that, because of the fraud, there was no valid visa application, and the Tribunal and this court should have so found. The applicant further argued that, as his Skilled (Provisional) (Class VC) visa application was invalid, he was free to apply for another visa.
The Tribunal rejected those arguments. The Tribunal noted that the Full Court of the Federal Court had held in SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170; [2008] FCAFC 152 at [18], [27] and [93] that, where an applicant is complicit in a fraud on the Tribunal, the applicant is not entitled to a remedy. The Tribunal found that the applicant was complicit in the fraud. The Tribunal said, at paragraph 163 of its reasons for decision:
However, given the evidence before it, it is open for this Tribunal to find that the applicant wanted a visa that carried with it work rights and that he was “… not too particular how he got it”.77 The applicant’s instructions to Mr X were general in so far as he retained and paid Mr X to lodge an application for a visa on his behalf. He signed documents the contents of which he did not understand or enquire about, and he paid the agent’s fee when it fell due. Accordingly, given these findings, the Tribunal finds that the authority given by the applicant to Mr X as his agent extended to lodging the visa application on-line on his behalf. As a result, having regard to the claims and evidence as a whole and the above findings, it is open for this Tribunal to conclude that the applicant was complicit in the fraud on the primary decision maker.
77 SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1349 at [38]
The judge of this court who previously dealt with this matter said in his reasons for decision:
47.On the evidence before me I am unable to positively find complicity or collusion by the applicant in the false information in the application and hence the fraud.
48.I am satisfied however, that there was an indifference by the applicant in his relationship with the agent which amounted to a general authority to the agent. Whilst a lack of pursuit by the applicant of the actual visa or its entitlements for him is of concern, such can be equally explained by indifference as by collusion.
49.Consequently on the submissions of the applicant’s counsel himself, the ground must fail. Whilst I am satisfied there has been a fraud, it has not stultified the procedure of the delegate. The applicant should not obtain relief due to his indifference and imputed authority in the agent. The application is therefore valid.
On appeal, the Full Court of the Federal Court said in Gill:
48.In our view, the primary judge erred in failing to address a question which was of central significance in the particular circumstances here, namely whether the appellant’s “indifference” or imputed general authority to his agent extended to whether or not the agent’s conduct in assisting the appellant to make his visa application went so far as to include unlawful or dishonest conduct. In our view, it is one thing to conclude, on the basis of relevant evidence, that a visa applicant, having retained the assistance of a migration agent, gives his or her general authority to that agent to do whatever is lawful and proper to achieve the visa applicant’s objective of obtaining a particular visa, as opposed to a visa applicant placing such matters in the hands of a migration agent and being indifferent to whether the migration agent uses lawful or unlawful means to achieve the visa applicant’s objective of obtaining a visa.
49.As emphasised above, the primary judge found that it was not possible for him to make a positive finding that the appellant was complicitous or colluded in the agent’s fraud. Rather, the primary judge proceeded on the basis that his lesser findings relating to the appellant’s “indifference” and the general authority he gave to his agent meant that the appellant had to bear responsibility for the agent’s fraudulent conduct. In our respectful view, this approach fails to recognise and give effect to the relevant distinction between an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly. This distinction is equally important in the context of considering the legal significance of any general authority given to a migration agent by a visa applicant. In our respectful view, the primary judge erred in failing to recognise and give effect to the significance of this distinction.
50.We accept the appellant’s submission that the operation of provisions such as ss 45 to 48 and 98 of the Migration Act and PIC 4020 can be affected by the fraudulent conduct of a migration agent in circumstances where the visa applicant has not colluded in that fraud and there is no evidence to support a finding that the visa applicant was indifferent as to whether the agent used unlawful or dishonest means to obtain a visa. As noted above, the Minister ultimately did not contest that s 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.
51.It is entirely understandable that a person in the position of the appellant, who did not speak good English and who had no knowledge of the Australian legal or migration systems, which are technical and complex, would retain a registered migration agent to assist him in obtaining a visa and to rely upon the agent taking reasonable and proper steps in seeking to obtain the grant of a visa. Significantly, there was no finding by the primary judge that the appellant’s “indifference” as to how his agent carried out his retainer to assist the appellant in obtaining a visa extended so far as to countenance or authorise the agent engaging in fraud or dishonesty. The position would be different if there was such a finding and that finding was one which was reasonably open. Whether or not there should be such a finding in this case will be a matter to be determined on the remittal and in the light of all the relevant evidence.
The parties were in agreement that it is open to this court to determine for itself whether there was fraud vitiating the visa application, and it was not necessary to remit the matter to the Tribunal for the determination of that question. The parties were in dispute about whether the applicant was indifferent to whether his agent would use unlawful or dishonest means to obtain a visa for the applicant. That is the only question currently for determination by this court.
Ground of application
The ground of review in the application filed on 23 December 2013, amended on 5 May 2014 and further amended on 23 November 2017 is:
The MRT lacked jurisdiction because there was no “valid visa application”, which meant there was no “MRT-reviewable decision”.
Particulars
(a)The Applicant’s Migration Agent submitted false or misleading information to the Department.
(b)The Applicant was not aware of this, did not authorise this, and was not complicit in the Migration Agent doing so.
(c)The Migration Agent’s fraud perverted the statutory processes that require that there be a “valid visa application” (ss 46 and 47 of the Act) before there can be a decision by the Minister’s delegate (s 65 of the Act), which is necessary before there is any MRT-reviewable decision (s 338 of the Act).
On that ground, the applicant sought a declaration that:
… the purported visa application made in the name of Khushwant Singh Gill made on 3 May 2011 for a Skilled Graduate (Temporary) (Class VC, Subclass 485) visa was not a valid visa application.
Information in the visa application
The applicant submitted to the court that the visa application contained false information, namely:
a)the dates of birth of his parents;
b)the email address with which to communicate with the applicant, namely [email protected];
c)the claim that the applicant had received no assistance in completing his visa application; and
d)the details provided in relation to a skills assessment, namely:
Nominated Occupation Cook
Name of assessing authority Trades Recognition Australia
Date of Skills Assessment 23 SEP 2010
Reference/Receipt number TRA10/426305721
…
Australian qualifications
Qualification Diploma
Course Name Diploma in Hospitality Management
Institution Name Holmes College
Campus melbourne
Postcode of campus 3000
Country AUSTRALIA
Date from 23 JUN 2009
Date to 2 MAY 2011
Overview of submissions
The applicant submitted that the agent concocted the information set out in the previous paragraph, and that consequently there was a fraud on the Tribunal. The applicant submitted that he was not complicit in the fraud, and not indifferent to whether his agent obtained a visa for him by dishonest or unlawful means.
The Minister submitted that the applicant was not a credible witness, was careless about the accuracy of his evidence to this court and gave an intrinsically implausible account. The Minister submitted that the applicant did give his agent authority to apply for a skilled visa and was indifferent to the truth or falsity of the contents of the visa application.
Notice to admit facts
The applicant served on the Minister a notice to admit facts. The Minister admitted facts 1 to 17 as follows:
1.The Minister’s department participated in an investigation of the migration agent business known as “S&S Migration” (the Agent)
2.The Agent has lodged visa applications to the Minister’s department on behalf of other applicants that contained false and misleading information.
3.Mr Jeetender Ajjan was a person associated with the Agent.
4.Mr Jeetender Ajjan was not a registered migration agent.
5.A registered migration agent was employed by the Agent.
6.A registered migration agent was associated with the Agent.
7.Officers of the Commonwealth executed search warrants at premises believed to be the place of business of the Agent.
8.Officers of the Commonwealth executed search warrants at premises believed to be the residential address of Mr Jeetender Ajjan.
9.On 26 October 2011, officers of the Commonwealth executed search warrants at premises believed to be the place of business of the Agent.
10.On 26 October 2011, officers of the Commonwealth executed search warrants at premises believed to be the residential address of Mr Jeetender Ajjan.
11.Documents were seized pursuant to the execution of the search warrants.
12.Documents were seized pursuant to the execution of search warrants relevant to the purported visa application made by the applicant.
13.Mr Jeetender Ajjan departed Australia on 29 October 2011.
14.Mr Jeetender Ajjan has departed Australia.
15.Mr Jeetender Ajjan has not returned to Australia.
16.Mr Jeetender Ajjan is not present in Australia.
17.The visa application submitted in the name of the applicant contained false information.
Standard and burden of proof
The applicant argued that, due to the seriousness of the matters in issue, the court should only make findings on the Briginshaw[1] standard. The Minister did not dispute that. I accept that findings in this case should only be made on the Briginshaw standard, and the findings that follow are made on that basis.
[1] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34
The applicant submitted that the Minister had the onus of proving that the applicant was indifferent to whether his agent used unlawful or dishonest means to obtain the applicant’s visa. The applicant submitted that it was the Minister who alleged that the applicant was indifferent to those things, and therefore it was the Minister who had to prove them.
The Minister submitted that the applicant had the onus of proving that the applicant was not indifferent to whether his agent used unlawful or dishonest means to obtain his visa. The Minister submitted that the onus was on the applicant to prove the fraud on the Tribunal, which the applicant accepted. The Minister submitted that it followed that the onus was on the applicant to prove all of the components of the fraud, including that he was not complicit in it and not indifferent to whether his agent used unlawful a dishonest means to obtain the applicant’s visa.
Judge Riethmuller of this court held in Kaur v Minister for Immigration & Anor [2014] FCCA 3167 at [3] that, in similar circumstances, the onus was on the applicant to prove that he was not indifferent to whether his agent used unlawful or dishonest means to obtain the applicant’s visa. I am obliged to follow that decision unless I consider it to be plainly wrong. I do not consider it to be plainly wrong. On the contrary, I consider it to be plainly right.
Consequently, I consider that the onus was on the applicant to prove that he was not indifferent to whether his agent used unlawful or dishonest means to obtain a visa for the applicant. Even if I am wrong about that, for the reasons which follow, I consider that the Minister has discharged the onus.
The applicant’s demeanour
Although he does speak some English, the applicant gave most of his oral evidence through an interpreter. As such, the possibility of making an assessment of his credibility based on his demeanour was limited. Nevertheless, the applicant presented as very strong and confident. He answered most questions briefly and directly and without equivocation. On occasion, and generally reasonably, he said that he could not remember a particular matter. When an inconsistency in his evidence was pointed out to him, regarding whether a particular topic was discussed at his first meeting with his agent or at the second meeting, he said somewhat dismissively that it was discussed at one meeting or the other.
The applicant did not appear to be the sort of person who would be easily duped into handing over $2,500 and receiving nothing in return. Having said that, I accept that even the most astute people can be deceived by particularly wily fraudsters.
I put little weight on the applicant’s demeanour in the witness box in making the findings in this matter. Otherwise, the findings made in this matter are based on all of the evidence in the case.
The applicant’s affidavits
The applicant relied on his affidavit affirmed on 14 September 2017 (exhibit 2) for the purposes of this proceeding. He was also cross-examined on his affidavits affirmed on 26 November 2014 (exhibit 3) and 1 May 2014 (exhibit 5) for the purposes of the previous proceedings heard in this court and his affidavit affirmed on 14 February 2013 (CB166) for the purposes of the previous proceedings in this court that were remitted by consent.
The preparation of the 14 September 2017 affidavit
The applicant said at paragraph 50 of his affidavit affirmed on 14 September 2017 that he had prepared that affidavit himself, and that it had been translated back to him in Punjabi. He said in cross-examination that he had written out the affidavit himself in his own words in Punjabi, based on what he remembered, and it was then translated into English. He said he was quite sure about that process: Tr. pp.19-20. The applicant later confirmed in cross-examination that he had prepared the affidavit in accordance with his recollection: Tr. p.34, l.18. In re-examination, the applicant again confirmed that he had written out his affidavit affirmed on 14 September 2017 in Punjabi and it was translated into English through his lawyer: Tr. p.48, l.36-39.
However, following the hearing when that evidence was given, on 24 October 2017, and before the hearing resumed on 21 November 2017, the applicant’s solicitor, Sarah Ainslie Thompson, swore an affidavit on 14 November 2017. In that affidavit, Ms Thompson said that, pursuant to her ethical obligations to the court, and with the consent of the applicant, what in fact occurred is that the applicant provided to her a statement in English. She said the statement was then put in affidavit form, and the affidavit was read to the applicant in Punjabi before he signed it.
In other words, the evidence the applicant gave that he had prepared his affidavit affirmed on 14 September 2017 in Punjabi and it was translated into English through his lawyer was false. As it may be inferred that the applicant prepared the affidavit shortly before 14 September 2017, it is difficult to believe that he could have forgotten how he prepared it when he was giving oral evidence about six weeks later.
The applicant submitted that he was clearly not good at detail. I consider that this issue cannot be explained by a poor recollection of detail, particularly because the applicant said repeatedly, and without any equivocation or doubt, that he had prepared the affidavit of 14 September 2017 in Punjabi. Taking into account all of the evidence in the case, I consider that the applicant lied when he said to the court that he had prepared the affidavit affirmed on 14 September 2017 in Punjabi and it was translated into English by his lawyer.
The applicant also said that he prepared his affidavit of 14 September 2017 in his own words. In this connection, the Minister relied on the affidavit of Vincenzo Murano affirmed on 15 November 2017. It exhibited an affidavit of Mohinder Pal Singh affirmed on 16 September 2014 in proceeding number MLG 1966 of 2013, which was Mr Singh’s own review application in this court. Mr Singh’s review application also involved S&S Migration. The applicant conceded in cross-examination that he was a friend of Mr Singh: Tr. p.34, l.12.
The applicant initially objected to reliance on Mr Singh’s affidavit but, on reflection, the objection was withdrawn. The basis of the abandoned objection was that Mr Singh’s affidavit had been prepared for another proceeding. The objection was abandoned when it was realised that Mr Singh’s affidavit had been read in open court. The applicant then sought and was granted an adjournment of the hearing to enable his legal representatives to obtain instructions in relation to Mr Singh’s affidavit, and to consider whether to call any evidence in relation to it. The applicant did not call his friend, Mr Singh, to explain the similarities between their affidavits, and did not explain why he had not called him. However, the Minister did not raise a Jones v Dunkel[2] point, so I take that matter no further.
[2] (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278
In cross-examination, the Minister took the applicant through various paragraphs of his affidavit affirmed on 14 September 2017 and compared them with paragraphs of Mr Singh’s affidavit affirmed on 16 September 2014. Many of the paragraphs in the applicant’s affidavit affirmed on 14 September 2017 were identical to, or virtually identical to, paragraphs in the affidavit of Mr Singh affirmed on 16 September 2014.
The detail of that is as follows:
a)Gill: paragraphs 2 and 3: I came to Australia in June 2009 on a student dependent visa. …
My wife, Ms. Rimpy Brar, was the primary applicant for the student visa.
Singh: paragraph 4: I came to Australia in June 2009 as the dependent of my wife, MsSatinder Kaur, who held a student visa.
b)Gill: paragraph 4: Differences began to emerge between my wife and I in September 2010 when she threatened to remove me as a dependent from her student visa.
Singh: paragraph 5: In about October 2010, differences began to emerge between my wife and I, and she threatened to remove me as a dependent on her visa.
c)Gill: paragraph 5: I was concerned about this situation and I discussed it with some of my friends. One of my friend’s referred me to a migration agent; Jeetender Ajjan. At the time, I thought that Jeetender was a migration agent of the firm S and S Migration.
Singh: paragraph 6: I was concerned about this situation and I discussed it with some friends. I was referredby some friends within my community to a person that I understood to be a registered migration agent, Mr JeetenderAjjan of the firm S.S. Migration (the Agent).
d)Gill: paragraph 6: Around late April 2011 or early in May 2011, I met with the agent at his office at 905/227 Collins Street, Melbourne. I explained the situation with my wife to the agent, and that I wanted my own visa given my relationship had broken down. This was the first meeting with the agent. …
Singh: paragraphs 7 and 8: In about March 2011, I met with the Agent at his offices at 905/227 Collins Street, Melbourne.
I told the Agent about the situation with my wife and that I wanted my own visa.
e)Gill: paragraph 9: I told the agent that I needed his help to get my own student visa. I understood from discussing with my friends that a student visa of this kind would allow me to study in Australia, and to work part time.
Singh: paragraph 9: I told the Agent that I wanted him to help me to get a visa to study English.I understood from discussions with my friends that a student visa of this kind would allow me to study in Australia, and to work some hours.
f)Gill: paragraph 30: I did not tell the agent that I had made any application for a skills assessment or that I had undergone a skills assessment including as a cook from Trade Recognition Australia.
Singh: paragraph 16: I did not tell the Agent that I had made any application for a skills assessment or that I had undergone a skills assessment including as a solid plasterer from Trades Recognition Australia (I haven’t). …
g)Gill: paragraph 31: I did not tell the agent that I had obtained a Diploma in Hospitality Management from Holmes College. I do not have a Diploma of Hospitality Management.
Singh: paragraph 16: … I did not tell the Agent that I had obtained a diploma in solid plastering from the Cambridge International Institute (I haven’t). …
h)Gill: paragraph 32: I did not tell the Agent that my father’s DOB was 19 July 1951 and my mother’s DOB was 24 August 1954. Those dates are incorrect … .
Singh: paragraph 16: … I did not tell the Agent that my parents’ birthdates was 2 October 1954 (father) and 13 November 1956 (mother) (those are not the correct dates).
i)Gill: paragraph 37: I had no reason to suspect that the agent would make an application for a visa that I was not eligible for. …
Singh: paragraph 21: I had no reason to suspect that the Agent would make an application for a visa that I was not eligible for.
j)Gill: paragraph 38: The Agent asked me to sign some forms. The forms were not completed and I did not understand those forms because they were in English. I assumed that they contained the information that I had just given to the agent. I did not understand, and had no reason to suspect, that those forms contained information that was different to the information I had given to the agent. I did not understand, and had no reason to suspect, that those forms contained information that was misleading or incorrect.
Singh: paragraph 25: The Agent asked me to sign some forms. I did not understand those forms because they were in English, but I assumed that they contained the information that I had just given to the Agent. I did not understand, and had no reason to suspect, that those forms contained information that was different to the information I had given to the Agent. I did not understand, and had no reason to suspect, that those forms contained information that was misleading or incorrect.
k)Gill: paragraph 39: I had no reason to suspect that the agent would provide misleading or incorrect information about my circumstances to the Department. I understood that I was eligible for a visa of the kind that the agent had described to me. Based on my life experiences, there was no aspect of my interaction with the agent that made me suspicious about the agent. …
Singh: paragraph 26: I had no reason to suspect that the Agent would provide information about my circumstances to the Department that was misleading or incorrect.I understood that I was eligible for a visa of the kind that the Agent had described to me. Based on my life experiences, there was no aspect of my interaction with the Agent that led me to believe there was any reason to be suspicious about the Agent.
l)Gill: paragraphs 33 and 40: The agent said that he would contact me on my mobile number and not to worry.
As I did not believe there was any reason to be suspicious about the agent, I did not believe there was any reason to consider whether the application the agent would make for me, was not what I had asked for or that the information provided would be incorrect. I assumed everything was in order. There was no reason to doubt that it was not.
Singh: paragraphs 27 and 28: As I did not believe there was any reason to be suspicious about the Agent, I did not believe there was any reason to consider whether the application that was going to be made for a visa was completely “above board”. I assumed everything was in order. There was no reason to doubt that it was not. …
The Agent said that he would contact me on my mobile telephone number.
m)Gill: paragraph 43: In around April 2012, I learned from friends that the agent had committed fraud in migration applications, and that many people’s visas were in trouble. I went to the agent’s office but his firm was no longer there and the office was closed.
Singh: paragraph 35: In around April 2012, I learned from friends that the Agent had committed fraud in migration applications, and that many people’s visas were in trouble. I went to the Agent’s office but the office was closed, and there were locks on the door.
n)Gill: paragraph 44: Also in April 2012, I was introduced to another migration agent, Ms Marzena Siedlecka. She contacted the Immigration Department and subsequently obtained a copy of the Department’s decision to refuse the application made on my behalf by the agent.
Singh: paragraph 36: Also in April 2012, I was introduced to another migration agent, Ms Marzena Siedlecka. She contacted the immigration department and subsequently obtained a copy of the Department’s decision to refuse the application made on my behalf by the Agent.
o)Gill: paragraph 45: Ms. Siedlecka showed me documents from the migration agent, which purported to be a visa application made on my behalf and a decision to refuse the visa. I had never see those documents before.
Singh: paragraphs 37 and 38: Ms Siedlecka showed me documents from the immigration department, which purported to be a visa application made on my behalf and a decision to refuse the visa.
I had never before seen those documents.
p)Gill: paragraph 46: I was not aware, and had no reason to suspect, that the agent had submitted these incorrect documents to the Immigration Department on my behalf.
Singh: paragraph 39: I was not aware, and had no reason to suspect, that the Agent had submitted these documents to the immigration department on my behalf.
The applicant sought to explain the similarities between his affidavit and Mr Singh’s affidavit by noting that both affidavits had gone through a number of iterations. The applicant submitted that it may just as well have been[3] Mr Singh who had copied the applicant’s affidavit. However, ultimately, it was common ground that Mr Singh’s first affidavit preceded the applicant’s first affidavit. On this basis, it seems considerably more likely that the applicant copied Mr Singh’s affidavit than that Mr Singh copied the applicant’s.
[3] Tr. p.93, l.22-23
The applicant then submitted that the fault lay with his previous solicitors, who had also acted for Mr Singh. The applicant said that the previous solicitors had lax practices[4]. However, the affidavit in question was affirmed on 14 September 2017. I infer that it was prepared shortly before then. By that time, the applicant had retained his current lawyers.
[4] Tr. p.93, l.14 and Tr. p.95, l.29
However, the essential point is that, whatever the solicitors may have done, when asked how his affidavit of 14 September 2017 was prepared, the applicant said that he wrote it in Punjabi in his own words. Any laxity on the part of the applicant’s previous solicitors could not explain the applicant’s oral evidence in that regard. In my view, that evidence was patently false. It beggars belief that the applicant would not have known it was false. Consequently, I consider that the applicant lied to the court when he said that he had prepared the affidavit affirmed on 14 September 2017 in his own words in Punjabi.
Taking into account all of the evidence in the case, I consider that the applicant’s affidavits contain a constructed and false account of his dealings with his agent.
The plausibility of the applicant’s account
The Minister submitted that the applicant’s account of how he got his visa and the applicant’s related actions were inherently extremely implausible. The applicant said that:
a)he visited his agent on two occasions, in about April or May 2011;
b)on the first occasion, he saw the agent for five to seven minutes and on the second occasion he saw the agent for about 20 minutes;
c)he told the agent he wanted a student visa and he wanted to be able to work part time;
d)the applicant did not ask any questions;
e)the applicant gave the agent:
i)his name and address;
ii)$2,500; and
iii)his passport;
f)otherwise, he gave the agent no documents and no information;
g)the applicant could not remember if he got a receipt for the $2,500;
h)the applicant might have signed a few papers at the agent’s office;
i)he did not understand what he signed;
j)he was not aware of what was in the papers he signed;
k)the applicant did not ask for or receive a copy of the visa application lodged on his behalf;
l)the applicant did not attempt to contact the agent after the two visits;
m)the applicant did not know whether he had a visa;
n)the applicant did not contact the Department to enquire about his immigration position; and
o)he learned from friends in April 2012 that the agent had been fraudulent and many people’s visas might be in trouble.
The applicant sought to explain the truthfulness of this course of events by saying that he had had a similar, minimalist experience when he obtained a visa in India to come to Australia. He said at paragraph 14 of his affidavit affirmed on 14 September 2017 that all he or his wife had to do on that occasion was to give the agent the money and the information that they asked for. He said in paragraph 16 of his affidavit affirmed on 14 September 2017 that he had to provide some personal information and some documents, including passports and bank statements.
However, assuming that evidence to be true, the circumstances were quite different. The visa that the applicant obtained on that occasion was as a dependent on his then wife’s student visa. It was his then wife who could have been expected to supply the information about her qualifications, work experience and so on.
Moreover, the applicant’s affidavit does not suggest that the information and documentation that were given for his then wife’s student visa were nothing more than their names and addresses and their passports. At the very least, on the applicant’s own evidence, they also provided bank statements. The applicant did not reveal what information the agent asked for on that occasion. It could, on his own evidence, have been quite extensive.
The applicant also argued that the accepted facts in the notice to admit were broadly consistent with the applicant’s account, in that the agent verifiably behaved in a dishonest and unlawful manner in numerous other matters. It may be readily accepted that the agent behaved in an unlawful and dishonest manner in numerous other cases. However, that does not answer the question of whether the applicants in those numerous other cases were all complicit in or indifferent to the dishonesty and unlawfulness of their agent, or, more importantly, whether the applicant in this case was complicit in or indifferent to the dishonesty and unlawfulness of his agent.
In the light of all of the evidence in the case, I find it thoroughly implausible that anyone, including the applicant, could have thought that he could have honestly and lawfully obtained a student visa by spending a total of about half an hour with a migration agent and providing him with his name, address, passport and $2,500. I also find it implausible that, having given a migration agent $2,500, the applicant would not have obtained a copy of his visa application or, in the following 12 months, would not have contacted his agent or the Department to get his visa, or enquire about the progress of the application.
The scenario described by the applicant is far more consistent with an unlawful and dishonest scheme, that he knew, or ought to have known, was an unlawful and dishonest scheme. I find accordingly, taking into account all of the evidence in the case.
The alternative is that the account given by the applicant was simply false, and that he was entirely complicit in the fraud perpetrated by the agent in making a false application for a skilled visa. However, the Minister did not go so far, so I take that matter no further.
Inconsistencies in the applicant’s evidence
The Minister also relied on a number of inconsistencies in the applicant’s evidence. The Minister conceded that some of them, individually, were not of great significance. However, taken cumulatively, the Minister submitted that they showed that the applicant was indifferent to telling the truth in court, and, by extension, the applicant was indifferent to the lawfulness and honesty of his visa application.
The applicant submitted that the discrepancies in his evidence only proved that he was not the world’s best historian and he did not have a very good grasp of dates and other details.
The inconsistencies that the applicant said in closing submissions that the Minister might try to make something of were:
a)in his affidavit affirmed on 14 September 2017, the applicant said that he first saw his agent in late April or early May 2011, whereas, in his oral evidence on 24 October 2017, he said that he could not remember the month;
b)in his affidavit affirmed on 14 September 2017, the applicant said that the interval between his meetings with the agent was one week, whereas, in his oral evidence on 24 October 2017, the interval was said to be a few days;
c)slight discrepancies in the total number of minutes spent with the agent or at his office; and
d)in his affidavit affirmed on 14 September 2017, the applicant said that the agent told him about a work visa that he could apply for during their first meeting, whereas, in his oral evidence on 24 October 2017, the applicant said that did not happen in the first meeting but in the second; when the applicant was told about the inconsistency in his evidence on this point, the applicant said he did not remember exactly, and the work visa was discussed in the first or second meeting.
Regarding the matter mentioned in paragraph 46(a) above, absent some neurological issue, which was not suggested, it is not credible that the applicant could have remembered, when he affirmed his affidavit on 14 September 2017, that his first meeting with his agent was in late April or early May 2011, but, about six weeks later, when he was giving oral evidence in court on 24 October 2017, he could not remember the approximate month when he first saw his agent. However, the applicant was not asked the approximate month when he first saw his agent. He was asked the month. Consequently, his oral evidence, strictly speaking, was consistent with his affidavit evidence on that point. That is, he could not remember the precise month.
The matters mentioned in paragraphs 46(b) and (c) are trifling.
The Minister submitted that the applicant’s evidence described in paragraph 46(d) above reflected a real imprecision in his evidence. The problem with the applicant’s evidence described in paragraph 46(d) above is that, while it is of no great significance whether the work visa was first discussed in the first or second meeting, if the applicant’s affidavit affirmed on 14 September 2017 had been clear and definite that the work visa was first discussed at the first meeting, the oral evidence that the work visa was first discussed at the first or second meeting would reduce confidence in the other matters stated by the applicant in his affidavit affirmed on 14 September 2017.
However, the affidavit affirmed on 14 September 2017 does not make it clear and definite that the work visa was first discussed at the first meeting. The affidavit indicates that the agent first discussed the work visa option with the applicant:[5]
When he discussed the student visa option with me …[6]
[5] Paragraph 23
[6] Paragraph 22
The affidavit also indicated that the applicant told the agent during the first meeting that he wanted a student visa.[7] However, there is no indication that the agent discussed the student visa option with the applicant at that time, in the sense of talking about the viability of a student visa application. Rather, the affidavit indicated that, at the first meeting, the agent simply said that a student visa would not be a problem, and the applicant just needed to bring his passport and $2,500.[8]
[7] Paragraph 9
[8] Paragraphs 11 and 12
I do not consider that the matters mentioned in paragraph 44(d) above are a significant inconsistency.
The Minister also relied on corrections to the applicant’s affidavit evidence that he had made in various versions of the affidavit over time. In particular, the Minister relied on paragraph 31 of the applicant’s affidavit affirmed on 26 November 2014 (exhibit 3), where the applicant said:
In my affidavit of 5 May 2014, I said that “I went to his office and he showed me on a computer screen what he said was my visa. My name was on the screen. He told me he would print a copy of the email and send it to my house address.” This is not correct. My friend, Mohinder Pal Singh went to see the Agent about his own visa. Mohinder told me that the Agent had shown him on a computer screen what the Agent said was Mohinder’s visa. Mohinder told me of a website where I could check the status of my visa application.
He did not send it to my house.The applicant sought to explain such corrections on the basis that his previous solicitor had prepared affidavits for him and made mistakes. However, in view of all of the evidence in the case, I am not persuaded that the corrections in the applicant’s affidavit evidence can be explained away so easily. In view of all the evidence in the case, I consider that the reality is that the applicant has corrected his evidence on these matters to improve his case, and in doing so has lied to the court.
The applicant’s denials
The applicant denied in his affidavit affirmed on 14 September 2017 that he knew or suspected that his agent would apply for a visa that the applicant was not eligible for, or that the agent would provide misleading or incorrect information to the Department. The applicant said in re-examination that he did believe that his agent would use dishonest means to obtain a visa, but the applicant may have misunderstood the question. I disregard that evidence. He later said that he did not know that his agent would use dishonest means to obtain a visa for him.
In view of the other evidence in the case, I do not accept the applicant’s denials. I consider that he has constructed an account to enable him to apply on-shore for another visa that would permit him to remain in Australia.
Conclusion
Taking into account all of the evidence in this case, I consider that the applicant has constructed a false account of his dealings with his agent. The process described by the applicant to obtain his visa was implausible and fabricated. The applicant has given dishonest evidence to this court. I extrapolate from that to conclude that, at the very least, the applicant was indifferent to whether his agent would use dishonest and unlawful means to obtain a visa for him.
The application will be dismissed. I will hear the parties on the question of costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 8 February 2018
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