Gill v Minister for Immigration and Border Protection
[2015] FCCA 1
•5 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1 |
| Catchwords: MIGRATION – Judicial review – applicant claims that migration agent was fraudulent – whether a valid application because of the fraud – complicity or collusion by the applicant or indifference – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Minister for Immigration and Border Protection v Kim [2014] FCAFC 47 Minister for Immigration v Lu [2010] FCAFC 147 Sran v Minister for Immigration [2014] FCCA 37 Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624 SZLHP v Minister for Immigration [2006] FCAFC 152 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158 |
| Applicant: | KHUSHWANT SINGH GILL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2341 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing date: | 10 November 2014 |
| Date of Last Submission: | 10 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Ravi James Lawyers |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application for judicial review filed 23 December 2013 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
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The application
This is an application for judicial review pursuant to the Migration Act1958 (“the Act”) of a decision of the Migration Review Tribunal (“the Tribunal”) made 13 December 2013 affirming a decision of the Minister’s delegate on 14 April 2012 to refuse the applicant a Skilled (Provisional) Class VC visa (“the visa”).
The application has previously been remitted to the tribunal on 24 April 2013 after a finding that the applicant had not been provided with valid notice of the delegate’s decision.
The current application for judicial review was filed on 23 December 2013. An amended application was filed 5 May 2014. Two Notices to Admit Facts had been rendered by the applicant with various response which will be referenced where relevant in these reasons.
Both the applicant and the second respondent were represented by counsel before me.
Background
The applicant is of Indian origin. He came to Australia in June 2009 as a dependent of his student wife who held a primary visa. During 2010 matrimonial difficulties eventuated and motivated the applicant to apply for a visa in his own right.
The applicant sought professional assistance from a registered migration agent, Mr Jeetender Ajjan of SS Migration Agents (“the agent”).
The applicant has filed a number of affidavits in these proceedings but relied only on that filed 27 November 2014. That affidavit refers to his professional relationship with his agent and his alleged intentions in respect of the visa application. At the hearing an amendment was made to the affidavit at paragraph 20 replacing the words “work visa” with:
A student visa with permission for a few hours work as well.
Unusually and upon these changes being made under oath in the witness box, the applicant was submitted for cross-examination by counsel for the second respondent. He was challenged extensively as to his own intentions as to the type of visa sought, the nature of his relationship with the agent, and his knowledge of or, alternatively, his indifference as to the particular visa the subject of the application prepared on his behalf.
It is not disputed that the agent prepared the applicant’s application, although that agent did not submit himself or on behalf of his firm a “notice of address for service” and the application itself indicates that the applicant received no assistance in its preparation.
It is not disputed that the application is false in a number of particulars including that the applicant had obtained a successful and relevant skills assessment. This was untrue. Further details such as the applicant’s parent’s date of birth and an email addressed purporting to be that of the applicant were also untrue.
It is not disputed that the applicant paid the agent $2,500 as a retainer. It is not disputed that the applicant gave the agent his personal details, and a copy of his passport, or that he signed some documents prepared for him by the agent.
It is not in dispute that the agent is no longer in Australia and has been the subject of departmental investigation in respect of other matters and his professional behaviour generally.
The delegate was not satisfied as to the public interest criteria in clause at CL4020(1) of Schedule 4 of the Migration Regulations (1994) (Cth) (regulations) and the application was rejected. At paragraph 2.6 of the first respondent’s submissions some reliance was put by counsel on this regulation and it is worthy of inclusion in full in these reasons. Clause 4020 states:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant's identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
"information that is false or misleading in a material particular" means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
The Tribunal’s decision
The applicant did not attend at the hearing before the tribunal. By this time the applicant had engaged a new agent and no issue was taken that the applicant was made aware of the tribunal hearing and invited to attend. Submissions and material were, however, placed before the tribunal and the issue of the validity of the application itself and hence the jurisdiction of the tribunal was unambiguously put in argument on behalf of the applicant.
On 16 December 2013 the tribunal affirmed the delegate’s decision to refuse the visa. In doing so it found the application to be a valid one. The tribunal accepted that there had been a fraud in the material submitted on the original application but found that the applicant was complicit in the fraud and thus could not receive the relief sought.
In finding that the visa application was valid the tribunal considered sections 46 and 47 of the Act. Section 46, subject to argument here, purports to set out or define the criteria for a valid visa application. Section 47 under the heading “Consideration of valid visa application” provides:
(1) The Minister is to consider a valid application for a visa.
(2)The requirement to consider an application for a visa continues until:
(a) The application is withdrawn; or
(b) The Minister grants or refuses to grant the visa; or
(c)The further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
The Tribunal proceeded to make a number of findings of fact and credit including:
(i)At [58]:
…the tribunal finds that the applicant engaged Mr X from firm Z to assist him to regularise his immigration status in Australia, and that the payment of a fee for this service resulted in a retainer between the parties.
(ii) That the tribunal was satisfied that the applicant knew that a visa application was to be lodged on his behalf for some kind of “work visa”, and that he consented to his former agent lodging such an application on his behalf;
(iii)That prima facie the visa application was therefore valid;
(iv)That the applicant failed to attend the tribunal hearing in circumstances where the tribunal would have liked to have asked the applicant further questions in respect of his relationship with the agent (the applicant being on notice as to these issues);
(v)That the applicant had held a secondary visa and “knew enough” to have engaged a migration agent to regularise his changed immigration status;
(vi)The tribunal did not accept the applicant’s claim that his instructions to the agent were confined solely to the lodgement of an application for a student visa.
At [129] of the Tribunals reasons the member says:
Rather, the evidence before the Tribunal points to the strong likelihood that the applicant gave general instructions to Mr X to obtain a visa for him. The evidence indicates that the applicant approached firm Z of his own volition for advice regarding his immigration options, and he signed some forms at these offices to assist Mr X to do so. The applicant also willingly paid Mr X $2500 in consideration for this service, and handed over a copy of his passport to Mr X for this purpose. In addition, when advised by Mr X that a visa had issued to him, the applicant accepted that this was the case and did not seek further information from Mr X regarding the nature of the visa granted to him, which course(s) he was expected to study in Australia, or on what basis he would be eligible for permanent residence in Australia after 12 months.
The Tribunal proceeded to find that the applicant was “not too particular about whether it was a student or subclass 485 skills visa, as his interest was in the visa outcome”. The Tribunal was satisfied that the applicant’s instructions to the agent were general rather than specific as to the particular visa application and with an expectation “that he would be issued with a visa that allowed him to work in Australia and regularise his immigration status.” Specially at [131] the Tribunal found as contrived the applicant’s evidence that he had not instructed his agent to lodge anything other than a student visa, and thereby rejected the contention that the agent had acted outside of his specific authority.
The Tribunal accepted that the false information was fabricated by the agent but under a general authority or indifference on the part of the applicant and hence the applicant was complicit in the fraudulent conduct and therefore affirmed the decision of the delegate that any relief was not available to the applicant.
Applicant’s case
The amended application sets out four grounds of complaint. However, at the commencement of his submissions before me counsel for the applicant abandoned grounds 1-3 and relied solely on ground 4, which states:
The MRT lacked a 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 process that required that there be a “valid visa application” (ss46 and 47 of the Act) before there can be a decision by the Minister’s delegate (s65 of the Act), which is necessary before there is any MRT-reviewable decision (s338 of the Act).
Counsel for the applicant properly acknowledged that the above ground raises the same issues of fact as were determined by the Tribunal, and that findings of fact are not ordinarily capable of challenge in a judicial review. Similarly, counsel did not dispute that that section 98 of the Act would, on ordinary argument, catch this applicant. Section 98 provides:
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in, or if it is otherwise filled in on his or her behalf.
Rather counsel argued from a point of principle in respect of fraud itself, and that a fraud should “sit above the Act” and that no provision of the legislation (including section 98) should work to provide a consequence detrimental to the applicant where that consequence was obtained by fraud, or that a fraud could not or should not be cured or exonerated by reason of section 98 of the Act.
The argument is premised on a distinction between an applicant indifferent as to what an agent does on his or her behalf but assuming it be done lawfully as against an applicant indifferent as to whether the action is lawful or unlawful.
The argument was discrete and limited given the concession by counsel that, but for any supervening fraud, the applicant would be caught by section 98 of the Act.
The argument therefore is twofold. Firstly on the matter of principle as to the effect of fraud and, secondly, as to how this Court treats the evidence as to alleged complicity of the applicant in the fraud.
Firstly, therefore, the applicant argues that section 98 should not operate where there is a supervening fraud without complicity. The applicant relies on the decision of the High Court in SZFDE v Minister for Immigration and Citizenship[1] where their Honours held that where a fraud has stultified or subverted the statutory process, then an applicant should have relief from the consequences. In that matter, the appellants sought to engage a migration agent/solicitor who had in fact been struck off and/or deregistered. The appellants took advice not to attend the Tribunal hearing, and the High Court found that the fraud of the solicitor/agent had the “immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.”
[1] [2007] HCA 35
The applicant’s argument turned to the exception to the principle being that if there is complicity or collusion in the fraud then the applicant will not be entitled to the relief thereby leaving for this Court the following questions:
(1)Has there been a fraud which has had a subverting or stultifying effect on the process?
(2)Whether the applicant seeking relief should not be granted that relief because of complicity or collusion?
Counsel for the applicant argued that the process was stultified by reason of the fraud.
Counsel argued only that the requirement was that falsehoods be submitted to the Department with knowledge of their falsity and that SZFDE applies to situations beyond simply the stultification of natural justice obligations. It is argued that the very statutory process is compromised by the fraud given reliance or potential reliance on the falsities.
Therefore, it is argued that the fraud stultifies the process, and hence there could be no valid application by reason of that fraud, and thus the delegate has no jurisdiction to consider an invalid application.
The argument then turns to the alleged complicity of the applicant himself.
There appeared to be no challenge as to the falsities in the application, including:
(1)a purported email address for the applicant which he had never held;
(2)errors as to his parents’ dates of birth;
(3)errors as to his formal qualifications; and
(4)error as to his having obtained a satisfactory trade assessment.
Reference was made to and reliance placed on the applicant’s own culture and his tendency to place trust in others and to sign documents without reading them.
However, it is argued, that there was no evidence before me (as the finder of fact on the applicant’s argument) that the applicant was aware of what the agent proposed to do, or that he had a previous history of submitting false information. Counsel argued that the onus of proof on the Briginshaw standard rests with the second respondent who here makes the assertion of complicity, and relying on the authority of SZMGX v Minister for Immigration and Citizenship[2] that where an applicant has given evidence tending against the finding of collusion or complicity, there must be a clear rejection of that evidence before a finding of collusion or complicity can be made[3].
[2] [2009] FCAFC 67
[3] SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158
With this argument it is important to keep in mind the premise that is argued being that there was no valid application before the delegate, and that it is this Court, therefore, which is asked to find jurisdictional error based on the facts. This unusual circumstance was considered by Perram J in Prodduturi v Minister for Immigration and Border Protection[4]where his Honour at [13] states:
The presence or otherwise of a valid application for the visa was a jurisdictional fact for the Tribunal. Whilst it was bound to consider whether it had jurisdiction and hence to form a view on whether the application was vitiated by the alleged fraud of S&S Migration, it could not answer that question authoritatively. The Federal Circuit Court, on an application for constitutional writs, was therefore entitled to come to its own view on that factual issue.
[4] [2014] FCA 624
This is important because it means that evidence was admissible before this court on the question of whether the appellant’s application for a visa was valid. This contrasts to the situation which exists where a challenge is made to some non-jurisdictional fact founded by a decision-maker. In that category of case the court hearing the judicial review action will not be able to receive additional evidence about that fact. Further, the Full Court in Minister for Immigration and Border Protection v Kim[5] also dealt with an issue as to the validity of a visa application and observed at [26] – [29]:
[5] [2014] FCAFC 47
The issue as to the validity under the Act of the visa application.
26. The factors or criteria by reference to which an application for a visa is valid in s46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the court and we so find.
29. The consequence is that the primary judge should have decided this issue on the evidence before him and should not have remitted the matter to the appellant Minister for the purposes of further fact finding.
In summary, therefore, the applicant argues that there was no valid application before the delegate and hence no MRT reviewable decision for want of jurisdiction. Put another way, there must be a valid visa application before there can be a decision to grant or refuse a visa pursuant to section 65 of the Act. If the initial visa application was affected by fraud then it is not valid with the caveat that the applicant should not be granted relief if he is found to have colluded or been complicit in a fraud. The applicant says that the second respondent has not proven collusion or complicity on the balance of probabilities and that where this applicant stands accused of “indifference” it is not as to the lawfulness or unlawfulness of a fraud on the tribunal.
Counsel referred to authorities such as Minister for Immigration v Lu[6] and SZLHP v Minister for Immigration[7] in distinguishing the conduct of the applicants in those cases with the current applicant. Those matters concerned actual knowledge or deliberate participation whereas, according to this applicant, he had no knowledge that he was participating in a fraud or ruse.
[6] [2010] FCAFC 147
[7] [2006] FCAFC 152
Respondent’s case
Counsel for the second respondent says simply that it is open for me to find on the facts that the applicant was complicit in the fraud and, on the applicant’s own concession, he should not escape the force of section 98.
However counsel for the second respondent disclosed this argument as a “distraction” and says that the primary issue is, whether or not the contents of an application are fraudulent, a person who gives general authority to an agent to lodge an application and is indifferent to its contents that person is caught by section 98. Counsel here refers the court back to clause 4020 of the regulations and particularly as to subsection (4). That is, an applicant professing both innocence and ignorance can seek a waiver under this clause. It is here that counsel for the second respondent says that the “validity argument” falls over because there is, in fact, statutory protection available for the innocent victim of the fraud.
Consideration
I am satisfied that the visa application is a valid one. I consider that this matter can be distinguished from those cases where the very process of the court is stultified by the fraud as, for instance, in SZFDE. The process was not stultified here. The delegate and the tribunal both had particulars of the fraud. SZFDE itself puts the issue in perspective where their Honours say at [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 ss425 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.
In a recent decision in this court in Sran v Minister for Immigration[8], Nicholls J dealt with a situation where there had been fraud in the sense of falsities in the visa application. His Honour distinguished SDFDE and said at [75]:
The fraud perpetrated by the third party in SZFDE was such that it vitiated the process before the Tribunal. The applicants in that case had been invited to a hearing by the Tribunal, and on the evidence accepted by the primary judge, were denied the opportunity to attend the hearing by the conduct of the third party, the unregistered migration agent. However, the “fraud” alleged in the current case was not said to be as a result of conduct during the process of the review by the Tribunal, but fraud in the making of the application for the visa.
[8] [2014] FCCA 37
Numerous findings of fact are open and often not disputed. The applicant engaged, provided instructions to, and entered into a retainer with the agent.
I find that the application was false in the particulars set out above.
I am satisfied on the evidence that the applicant gave a form of general authority to his agent. I have had the benefit of the applicant’s affidavit being read into evidence together with his cross-examination. Even taking into account that English is not his first language and a cultural tendency towards trust, the applicant’s evidence in respect of the particular visa sought by him was vague and uncertain. He prevaricated in respect of the important evidence as to his instructions to the agent and/or his advice from the agent. Inconsistencies from previous affidavits arose in cross-examination. The applicant’s attempts at justification were unsatisfactory with a tendency, at best, towards indifference such as his revelation of a propensity to sign documents without being made aware of the contents.
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.
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.
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.
This being the only ground of the amended application prosecuted, I must dismiss the application. I will order accordingly together with an order for costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 5 February 2015
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