Heir v Minister for Immigration
[2020] FCCA 1598
•18 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEIR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1598 |
| Catchwords: MIGRATION – 457 Visa – allegation of fraud – employer nomination withdrawn – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.140ZH, 359A, 359AA, 368D, 379, 476 Migration Regulations 1994 (Cth) cl.187.223 |
| Cases cited: Durani v Minister for Immigration & Border Protection [2014] FCAFC 79 |
| First Applicant: | PAWANJEET KAUR HEIR |
| Second Applicant: | RAJINDER SINGH HEIR |
| Third Applicant: | SURKHAB SINGH HEIR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2476 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 13 February 2019 |
| Date of Last Submission: | 20 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| The First, Second and Third Applicants appeared in person |
| Counsel for the First Respondent: | Mr C M McDermott |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent: | Submitting appearance, save as to costss |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth) the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application filed on 14 November 2016 be dismissed.
The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2476 of 2016
| PAWANJEET KAUR HEIR |
First Applicant
| RAJINDER SINGH HEIR |
Second Applicant
| SURKHAB SINGH HEIR |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants seek judicial review of a decision of the Second Respondent (Tribunal), dated 11 October 2016. The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (Delegate) to refuse to grant the Applicants Regional Employer Nomination (Permanent) Subclass 187 visas (Visa).
Both the Delegate and the Tribunal found that the Applicants were not entitled to the grant of the Visas because the First Applicant did not satisfy the criterion in cl.187.223 of the Migration Regulations 1994 (Cth) (Regulations), as the Applicant did not have an approved nomination at the time of the Delegate’s decision or the Tribunal’s decision.
The application for judicial review filed on 14 November 2016 (Application), is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The Applicants press 10 grounds of review in the Application which the Court will consider in detail below.
Background
The Court has before it a Court Book numbering 311 pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the First Respondent’s (Minister) written submissions, filed 5 July 2017 (Minister’s Written Submissions), at [5]-[11], accurately summarise the factual history of this matter. The Court adopts those submissions, with amendments, as its own. They provide, relevantly, as follows.
The First Applicant and Second Applicant are married citizens of India (wife and husband respectively). The Third Applicant is the son of the First and Second Applicants and is also a citizen of India[1]. On 30 June 2015, the First Applicant applied for the Visa as the primary visa applicant (Visa Application)[2]. The Visa Application listed the Second and Third Applicants as migrating family members[3]. The Applicants were represented by a migration agent, Desai Sudhirkumar of Australian Visa Com Au Pty Ltd (First Migration Agent)[4]. The Visa Application stated that the First Applicant was employed by Fusion India Pty Ltd (Fusion India) as a cook[5].
[1] Court Book (CB) 1-5.
[2] CB 1-16.
[3] CB 3-5.
[4] CB 7-8.
[5] CB 10.
On 20 October 2015, a delegate of the then Department of Immigration and Border Protection (Department) sent a letter to the First Applicant providing information pursuant to s.140ZH of the Act (Department’s 20 October 2015 Letter)[6]. This letter informed the First Applicant that the Department had recently conducted a monitoring audit of the First Applicant’s sponsor Fusion India. The Department’s 20 October 2015 Letter stated[7]:
As a result of the audit, Fusion India Pty ATF Fusion India’s subclass 457 visa sponsorship agreement was cancelled on 20 October 2015. In addition to this a bar has also been placed on Fusion India from lodging any further applications for sponsorship for a period of three years.
Cancellation of the sponsorship agreement means Fusion India Pty ATF Fusion India is no longer an approved sponsor and will not be able to have any future nominations for the subclass 457 Visa program approved until the bar is no longer in place. This bar also affects Fusion India Pty ATF Fusion India’s ability to sponsor you under any permanent sponsored Visa program.
[6] Exhibit A1.
[7] Exhibit A1.
On 31 October 2015, Mark Glazbrook of Migration Solutions (Second Migration Agent), acting on behalf of the Applicants, sent an email to Sue Lawrie, copied to the Honourable Christopher Pyne MP concerning the Applicants (Second Migration Agent’s 31 October 2015 Email)[8]. This email included the following in relation to the First Applicant:[9]
[8] CB 269-271.
[9] CB 270.
From my discussions with the 457 dependent visa holder yesterday it appears that the business owner;
·Encouraged and took a payment of $30,000.00 in return for employing the visa applicant and nominating her for a 457 visa.
·Encouraged and took a further payment of $20,000.00 to commence an employer nominated visa.
·Made the visa holder pay for the 457 visa application, including the nomination.
·Made the visa holder pay training benchmark A on behalf of the business.
·Made the visa holder pay migration agents costs associated with Department monitoring.
·Made the visa holder work 7 days per week, 10 hours per day.
·Did not pay the visa holder, accept for the first month of employment.
·Made the visa holder pay money to the business owner for GST, WorkCover and Tax payments.
·Did not pay any superannuation to the visa holder.
·Made the visa holder work when she was gravely ill and would not give her time off to get medical treatment which resulted in her appendix bursting which has now resulted in serious ongoing health issues.
(Without alteration)
The Second Migration Agent’s 31 October 2015 Email also included the following:[10]
The employer’s migration agent also encouraged the family to apply for permanent residency even knowing that the business was being monitored. A registered migration agent would know that the Department will not assess any new 457 or employer nominated visa until monitoring has been finalised by the Department. I believe that the agent encouraged and coerced the family to apply for a permanent visa for financial gain. The cost of the permanent visa application to the family was $11,800.00, this application will be refused and all costs paid lost.
[10] CB 270.
On 31 December 2015, a Senior Case Manager at the Department sent a letter to the First Migration Agent inviting the First Applicant to comment on information concerning the Visa Application (Invitation to Comment). The Invitation to Comment included the following[11]:
[11] CB 111-112.
Nomination was withdrawn
The nomination submitted to the department by FUSION INDIA PTY LTD ATF FUSION INDIA listing you as their Nominee has been withdrawn. Unfortunately this means that your visa application cannot be approved. There are two options you can now take in relation to this decision:
1. Withdrawing your application
As there is no possibility of your application being approved you may wish to withdraw your application, if so you must advise the department in writing. By withdrawing your application you give up any rights to apply for a merits review at the Administrative Appeals Tribunal. A request for a refund can be submitted but will only be granted in very limited circumstances.
2. Refusal of application
If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. If your application is refused you are entitled to apply for a merits review of this decision with the Administrative Appeals Tribunal. A request for a refund will not be approved.
Outcome should you choose to withdraw your application
You and your dependents currently hold a Temporary Work (Skilled) (subclass 457) visa which is valid until 15 May 2016.
Should you choose to withdraw your application you will remain lawfully in Australia until the expiry of this visa. You may be able to lodge further visa applications within Australia during this time. It is not possible to reconsider an application once it has been withdrawn. Should you wish to withdraw this application you will not be entitled to seek a merits review at the Administrative Appeals Tribunal.
Timeframe for response
You must respond to this invitation to comment within 28 days after you are taken to have received this letter. You should provide your response in writing.
The First Applicant did not respond to the Invitation to Comment[12]. On 11 February 2016, the Delegate refused to grant the Visas to the Applicants (Delegate’s Decision)[13]. The Delegate identified that the First Applicant did not meet the relevant legal requirement for the grant of the Visa in cl.187.223(3) in Schedule 2 of the Regulations on the date of the Delegate’s Decision since the nomination application of Fusion India was withdrawn on 31 December 2015[14]. The First Applicant therefore did not satisfy cl.187.223 of the Regulations.
[12] CB 124.
[13] CB 116-126.
[14] CB 124.
Relevantly, cl.187.223 in Schedule 2 of the Regulations (cl.187.223) provides:
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b)in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and
(c)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
(3A) Either:
(a)there is no adverse information known to immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(4)The person to which the application relates is located in regional Australia.
(5)The position is still available to the applicant.
(6)The application for the visa is made no more than 6 months after the Minister approved the nomination.
The Delegate thereby refused the grant of the Visa to the Applicants.
The Applicants sought review of the Delegate’s Decision at the Tribunal on 1 March 2016[15]. The Applicants were assisted by the Second Migration Agent in making the review application[16]. When making the review application the Applicants provided a copy of the Delegate’s Decision to the Tribunal[17].
[15] CB 127-139.
[16] CB 128.
[17] CB 129, 136-139.
Prior to the hearing before the Tribunal the Second Migration Agent provided various written materials to the Tribunal[18]. These materials included:
a)The Second Migration Agent’s 31 October 2015 Email[19].
b)A submission by the Second Migration Agent to the Tribunal, dated 5 August 2016 (Applicants’ August 2016 Tribunal Submission)[20].
[18] CB 174-210; CB 211-262; CB 267-275.
[19] CB 269-271.
[20] CB 213-221.
The Applicants attended the hearing before the Tribunal on 11 October 2016 to give evidence and present arguments. The Applicants were assisted in relation to the review by the Second Migration Agent, who attended the hearing by telephone (Tribunal Hearing)[21].
[21] CB 277-280.
At the Tribunal Hearing on 11 October 2016, the Tribunal made an oral decision affirming the Delegate’s Decision to refuse to grant the Applicants the Visas[22] (Tribunal’s Decision). The Tribunal gave a written record of its decision on 30 November 2016[23].
[22] CB 279.
[23] CB 289-290.
The reason for the Tribunal’s Decision in substance constituted the following, at [3]:
Based on the evidence before me, including the oral evidence received today, I’m not satisfied that you meet the criteria in regulation 187.223 because, according to your own evidence, you do not have an approved nomination at the time of my decision. For that reason, I am affirming the decision made by the Department of Immigration on 11 February 2016.
Proceeding before the Court
The Applicants commenced proceedings for judicial review on 14 November 2016. During the judicial review proceedings in this Court, the Applicants have been without legal representation.
By Orders of a Registrar of this Court, dated 10 May 2017, the Applicants were given the opportunity to file an amended application and written submissions. Despite this, the Applicants have filed no further material.
The Application contains ten grounds of review, the particulars of which cover some four pages. Each ground of review is set out below where the relevant ground is specifically considered.
At the hearing both the First Applicant and the Second Applicant gave evidence and were cross-examined by Counsel for the Minister. In addition to the materials in the Court Book, the Minister’s Written Submissions and the submissions made by Counsel for the Minister at the hearing, the Court has reviewed in detail the transcript of hearing that took place in this Court (Transcript).
The Applicants’ Evidence
First Applicant’s Evidence
The First Applicant gave evidence that she received a 457 visa in 2013 and that she worked for Mr Kieran Pi Paterk at Fusion India for two and a half years. The Applicants then lodged a permanent residency application. Their migration agent was the First Migration Agent. On 15 August 2015 she suffered from a ruptured appendix and was then in hospital for two weeks[24].
[24] Transcript P12:Ll5-27.
When cross-examined by Counsel for the Minister, the First Applicant:
a)Said she had hired the Second Migration Agent to assist her with her appearance before the Tribunal[25].
[25] Transcript P14:L1.
b)Said that the Second Migration Agent prepared a written submission on her behalf for the Tribunal. The submission was prepared on the basis of the information the First Applicant told the Second Migration Agent. The information given by the First Applicant for the submission was truthful, complete and accurate. The First Applicant did not otherwise rely upon any other documents that she herself had written for the Tribunal Hearing[26].
[26] Transcript P14:L3-35.
c)Agreed that the Applicants had the benefit of being advised by the Second Migration Agent in relation to their visa status, prior to the Second Migration Agent’s 31 October 2015 Email being sent[27].
[27] Transcript P15: L43-P16:L1.
d)Agreed that she had received the Invitation to Comment. The First Applicant agreed that at the time the Invitation to Comment was received she:[28]
[28] Transcript P16: L3-P18:L20.
i)Understood that the nomination from her employer was withdrawn;
ii)Had access to advice from the Second Migration Agent about what to do in relation to the Invitation to Comment;
iii)Understood that without the nomination the Visa Application could not succeed and that the Visa could not be granted;
iv)Understood that in limited circumstances if the Visa Application was withdrawn and did not proceed, the Visa Application fee could be refunded;
v)Understood that the Visa Application did not have to proceed, if the Applicants advised the Department that they no longer wanted the Visa Application processed;
vi)Knew she had a choice about withdrawing the Visa Application or letting it be processed and was told this in December 2015; and
vii)Understood that if she withdrew the Visa Application she still held a subclass 457 visa which was valid until 15 May 2016 and that she could potentially apply for another visa whilst still in Australia.
e)Agreed that during the period after receiving the Invitation to Comment and prior to the Delegate’s Decision[29]:
i)She did not tell the Department that she wanted to withdraw the Visa Application; and
ii)She had the benefit of the Second Migration Agent advising her.
f)Agreed that she did not know whether the First Migration Agent knew about “what was going on in Fusion India”[30].
g)Agreed that she did not ask the First Migration Agent whether the Department was monitoring her employer[31].
h)Confirmed that there was nothing in the Visa Application that was false or untrue[32].
[29] Transcript P18:L24-29.
[30] Transcript P18:L37-38; P19:L4.
[31] Transcript P19:L4-14.
[32] Transcript P19: L16-17.
Second Applicant’s Evidence
The Second Applicant gave evidence that:
a)The First and Second Applicants received the Department’s 20 October 2015 Letter[33]. The Second Applicant produced the Department’s 20 October 2015 Letter[34].
b)As a result of receiving the Department’s 20 October 2015 Letter, the First and Second Applicants became aware that the nomination with Fusion India was cancelled[35].
c)The Second Applicant then went to speak to the employer, the owner of Fusion of India, who told him not to worry and that he was speaking with is lawyer and that they would “do something”[36].
d)Shortly thereafter the Applicants engaged the Second Migration Agent[37].
e)The Applicants received the Invitation to Comment. The Applicants did not respond to the Minister’s delegate in relation to the Invitation to Comment[38].
f)He understood that after receiving the Invitation to Comment the nomination could be withdrawn. He said:[39]
So after – we – that’s right, we received a letter from the department that your nomination is withdrawn by your – the employer and you got 28 days to discuss that you’re going to withdraw it or otherwise we’re going to refuse it. So our point was on that time that – why are we going to withdraw it? Why – where is our fault? So whatever he did – why are we suffering from that? So we didn’t withdraw that one.
I see? --- We planned with Mark Glazbrook what we were going to do next – and he said that, “Don’t worry. We will go to the tribunal. Somebody going to listen you over there. “Don’t worry about that. Otherwise we will go to the Minister.” So in 2016 we lost the tribunal – after three days we lost at Ministry. There was a refusal in four days. And we got 28 days to leave this country. So that was the little bit I want to say – like, we went through that hard period. So after that – with the submission of Federal Court, there is no one word in that application form from Mark Glazbrook. Somebody else helped me with it – not Mark. I want to specify this one. So Mark doesn’t know that we applied for Federal Court. Because he thought we – we left. But after – somebody – my friend was a lawyer over here – he helped me with a couple of things. You apply this one. You go upper court. So they will maybe listen to you. So we applied there one.
(Emphasis added)
[33] Transcript P20:L20-46.
[34] Transcript P20:35-P22:19. The Court notes that by email from the Minister’s Solicitors dated 20.2.19 to the Court the provenance of the Department’s 20 October 2015 Letter was confirmed by the Minister.
[35] Transcript T22:L21-22.
[36] Transcript P22:L23-34.
[37] Transcript P22:L35-43.
[38] Transcript P23:L9-14.
[39] Transcript P23: L9-26.
When cross-examined by Counsel for the Minister, the Second Applicant:
a)Said that the Second Migration Agent had prepared the Applicants’ August 2016 Tribunal Statement based on a statement that he had given to the Second Migration Agent. The information was all correct[40];
b)Agreed that at the time of the Visa Application he did not know whether the First Migration Agent knew whether the Department was monitoring the employer[41].
[40] Transcript P24:L4-15.
[41] Transcript P24:L17-25.
Ground 1
By Ground 1 of the Application the Applicants plead that the Tribunal committed jurisdictional error by reason of giving an oral decision and not providing detailed reasons. Ground 1 is pleaded as follows:
That the Tribunal has committed a jurisdictional error by deciding the review application filed by the applicants by giving an oral decision and not providing the detailed reasons for rejecting the application made by the applicant and affirming the decision of the department.
In relation to oral decisions, s.368D of the Act relevantly provides as follows:
(1)A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.
(2) If a decision on a review is given orally, the Tribunal must:
(a) make an oral statement that:
(i) describes the decision of the Tribunal on the review; and
(ii) describes the reasons for the decision; and
(iii) describes the findings on any material questions of fact; and
(iv) refers to the evidence or any other material on which the findings of fact were based; and
(v) identifies the day and time the decision is given orally; or
[…]
The Tribunal was empowered under s.368D(1) of the Act to make its decision orally. The Tribunal complied with s.368D(2)(a) of the Act by:
a)Setting out the decision on review, being the Delegate’s Decision, in [1] of the Tribunal’s Decision, as required by s.368D(2)(a)(i)[42].
b)Describing the reason for the Tribunal’s Decision in [3] of the Tribunal’s Decision, and noted in [17] above, as required by s.368D(2)(a)(ii).
c)Identifying the finding on the material question of fact in [3] of the Tribunal’s Decision, as required by s.368D(2)(a)(iii).
d)Referring to the evidence on which the finding of fact was based in [3] of the Tribunal’s Decision, as required by s.368D(2)D(a)(iv).
e)Identifying the day and time the oral decision was made, as required by s.368D(2)(a)(v).
[42] CB 290.
Therefore, the Tribunal complied with s.368D of the Act. The concise nature of the Tribunal’s Decision is a reflection of the fact that there was only one issue for the Tribunal to determine. That was whether the First Applicant was nominated in her employment by Fusion India for the purpose of cl.187.223(3) at the time of the Tribunal’s Decision. The First Applicant was not so nominated.
Ground 1 is not made out and is therefore dismissed.
Ground 2
By Ground 2 of the Application the Applicants plead:
That the Tribunal has committed a jurisdictional error by failing to take new evidence while affirming the decision of the case officer of the Department.
The Applicants have not identified what new evidence they sought to put before the Tribunal that was relevant to the review and how the Tribunal failed to elicit such new evidence. In the Applicants’ August 2016 Tribunal Submission the Applicant’s conceded:
On 31 December 2015, the applicant received a letter from the Department informing her that the nomination application had been withdrawn[43].
Please note that, but for subclause 187.223(3) of the Regulations, the visa application satisfied all other criteria for the grant of the subclass 187 visa for the Temporary Residence Transition stream. This fact was recorded by a case officer on 9 December 2015.[44]
[43] CB 217.
[44] CB 219.
Taking into consideration the issues on the review, being whether the First Applicant was nominated for the purposes of cl.187.223(3) of the Regulations, the only issue relevant to the review was proof of nomination from Fusion India. The Tribunal Decision at [3] records “according to your own evidence, you do not have an approved nomination at the time of my decision”. No new evidence was produced because none existed.
The Court is not satisfied any jurisdictional error arises from the failure to take new evidence.
Ground 2 is dismissed.
Ground 3
By Ground 3 of the Application the Applicants plead:
The Tribunal failed to comply with s359A of the Migration Act 1958
Particulars:
The Tribunal committed jurisdictional error by failing to comply with s359A of the Migration Act 1958.
Admittedly, the Tribunal has given an oral decision on the 11th of October 2016 and has summarily refused to interfere with the decision of the delegate and has also affirmed the same. Despite a request made by the applicants, the written decision has not been given by the AAT till date.
The Tribunal had to give clear particulars of the information to the applicant, invite the applicant to comment on or respond to the information, under section 359AA. If this was not done then it was incumbent on the Tribunal to give an opportunity to the applicant and provide clear particulars of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it. AND
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies - by one of the methods specified in section 379A;
or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
The Tribunal committed jurisdictional error by not providing any particulars of the provisions, evidence, regulations and facts which were taken into consideration while affirming the decision of the delegate. It was incumbent on the tribunal to follow the procedure prescribed under law.
(Without alteration)
Pursuant to s.359A(1)(a) of the Act, The Tribunal is required to give a review applicant clear, written particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. Section 359A provides as follows:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies - by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
[…]
Section 359AA of the Act provides as follows:
Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so - the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
[…]
In this case, the obligation in s.359A(1) was not engaged. The Applicants do not identify the “information” which is alleged to have not been put to them under ss.359A(1)(a) or 359AA(1)(a) of the Act. The only “information” that is relevant for the purposes of ss.359A(1)(a) or 359AA(1)(a) is the evidence that the First Applicant was not nominated by Fusion India for the purposes of cl.187.223(3) of Schedule 2 of the Regulations. However, the Second Migration Agent provided this information to the Tribunal by attaching a copy of the Delegate’s Decision to the review application[45]. Therefore, pursuant to s.359A(4)(b) of the Act, this information was information that the Applicant gave for the purpose of the application for review. In Minister for Immigration and Citizenship v Brar & Anor [2012] FCAFC 30 the Full Court was required to consider whether the Tribunal had “given” an applicant information for the purposes of s.359A(1)(a) of the Act. In that case the delegate’s reasons were given by the applicant to the Tribunal. The Full Court said[46]:
We would decide the submission in the appellant’s favour because it seems to us that the information in the Tribunal’s letter is substantially the same as that in the Delegate’s record of decision and, following the decision of Sundberg J Minister for Immigration and Citizenship v Chamnam Yu [2008] FCA 241, the information given to the Tribunal need not be information and applicant relies on. In those circumstances the exception in s 359A(4)(b) applied.
[45] CB 127-139.
[46] [2012] FCAFC 30, at [74].
Therefore, the fact that that an applicant gives information, regardless of whether they are claiming that the information is true or not, means that information falls within s.359A(4)(b). In this case, the Applicant gave the Tribunal not only the Delegate’s Decision but also provided information that the First Applicant was not nominated by Fusion India for the purposes of cl.187.223(3) of Schedule 2 of the Regulations in the Applicants’ August 2016 Tribunal Submission[47], as noted at [32] above.
[47] CB 219.
The Applicants allege that the relevant legislative criteria for the grant of the Visa was not put to them by the Tribunal. This allegation is not made out as the Applicants clearly knew the relevant criteria and provided this information to the Tribunal. The Applicants provided this information to the Tribunal in the Delegate’s Decision, where relevant legislative criteria for the Visa is referred to under the heading “187.22 Criteria for Temporary Residence Transition stream”[48]. The relevant legislative criteria for the Visa is more extensively referred to in the Applicants’ August 2016 Tribunal Submission under the heading “Relevant law Migration Regulations 1994 187.22 – Criteria for Temporary Residence Transition stream”[49]. Therefore, pursuant to s.359A(4)(b) of the Act, this information was information that the Applicant gave for the purpose of the application for review before the Tribunal.
[48] CB 137.
[49] CB 215.
In circumstances where there was no obligation on the Tribunal enlivened pursuant to s.359A of the Act, there was no obligation on the Tribunal to put the same information to the Applicants pursuant to s.359AA of the Act: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415, 432 [90] (Moore, Tracey and Foster JJ).
To the extent that Ground 3 alleges in the particulars that a written decision was not provided by the Tribunal, this is plainly incorrect, with the written record of the Tribunal’s Decision being delivered on 30 November 2016.
No jurisdictional error arises as a result of the Tribunal’s obligations under s.359A and 359AA of the Act as alleged in Ground 3.
Ground 3 is dismissed.
Ground 4
By Ground 4 of the Application the Applicants plead that the Tribunal failed to comply with s.359A and s.379 of the Act. The Applicants plead in Ground 4 as follows:
That the Tribunal has committed a jurisdictional error by not putting the clear particulars of the information to the applicants and also never invited the applicants to comment on or respond to, either orally or in writing to the said information. Resultantly, the applicants, lost their right to comment on the information under Section 359A by way of methods under Section 379A.
As with Ground 3, the Applicants do not identify the “information” which is alleged to have not been put to them under s.359A(1)(a) and 359AA(1)(a) of the Act. This is an abbreviated form of the allegations made in Ground 3.
For the reasons given in relation to Ground 3, no jurisdictional error arises as a result of the Tribunal’s obligations under s.359A and 359AA of the Act as alleged in Ground 4.
Ground 4 is dismissed.
Ground 5
By Ground 5 of the Application the Applicants plead:
That the Tribunal has committed jurisdictional error in not giving the Applicants the information orally at the telephonic hearing. Thus the information was not clear and in material particular. The Tribunal did not comply with section 359AA as it did not explain what an opportunity to respond entailed; that is, it did not explain that a response could be in writing, such that it could have offered an adjournment to go and make their own decision and explore their options, to that adverse information and provide a meaningful response. In the present case the Tribunal even failed to give basic information to the applicants.
(Without alteration)
As with Grounds 3 and 4, the Applicants do not identify the “information” which is alleged to have not been put to them under s.359AA(1)(a) of the Act.
For the reasons given in relation to Ground 3, no jurisdictional error arises as a result of the Tribunal’s obligations under s.359A and 359AA of the Act as alleged in Ground 5.
Ground 5 is dismissed.
Ground 6
By Ground 6 of the Application the Applicants plead:
The Tribunal made a jurisdictional error by not adhering to the procedure prescribed under section 359AA, especially the following:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on o respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
None of the above was followed at the time of the hearing and therefore all the proceedings at the hearing and thereafter are vitiated and cannot sustain in law.
(Without amendment)
The Applicants do not identify the “information” which is alleged to have not been put to them under s.359AA(1)(a) of the Act.
For the reasons given in relation to Ground 3, no jurisdictional error arises as a result of the Tribunal’s obligations under s.359AA of the Act as alleged in Ground 6.
Ground 6 is dismissed.
First Ground 7
In the Application there are two grounds referred to as Ground 7. The Applicants plead in the First Ground 7 as follows:
That the tribunal committed a jurisdictional error by not considering the submissions of the applicants that the migration agent engaged by them at the time of lodging their application had in fact not given them the right advice and had played a fraud with them by lodging an application during the period when the sponsor/employer of applicant number 1 was under strict monitoring of the department of immigration and Border Protection. The applicants did not know the implications and requirements of law and therefore paid huge fee to the agent and completely trusted him. However the agent misrepresented to the applicants and ensured them that they were eligible to lodge the visa application and they fulfilled all the requirements of the Migration Act and the regulations. The famous formulation from the High Court (in the case of SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 (2 August 2007) that “fraud is capable of unravelling everything” should have proved to be the salvation of the applicants in this case.
(Without alteration)
The Applicants in substance allege that there had been a fraud on both themselves and the Tribunal by the First Migration Agent. The Applicants also allege that the acts of the First Migration Agent had stultified the operation of the legislative scheme under the Act. The Applicants allege that the Court should determine whether there was a fraud by the First Migration Agent and, in particular whether, whether the First Migration Agent advised the Applicants as to their eligibility for the Visas and by submitting the Visa Application, at a time when the sponsor/employer of the First Applicant was under investigation by the Department.
Relevant Legal Principles
In Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 (Kaur), the Full Court of the Federal Court considered a case involving the consequences of the fraudulent conduct of the migration agents working in the business S & S Migration. In that case the Full Court summarised the principles applicable to the determination of whether fraudulent conduct vitiates a visa application. Those principles arose from the High Court’s decision in SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 and four decisions of the Full Court of the Federal Court, being: Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; (2016) 247 FCR 554; (2016) 162 ALD 346 (Singh); Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398; (2016) 161 ALD 386 (Gill); Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1; (2017) 161 ALD 203 (Maharjan) and SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445; (2013) 305 ALR 557; (2013) 138 ALD 46.
The principles were explained by the Full Court in Kaur, as follows [56]:
First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves ... room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application” (Singh at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (Singh at [52]).
Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Maharjan at [53], citing Gill at[50]).
Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Maharjan at [35], [44], [122]).
Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Maharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud not ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.
(Original emphasis and footnotes omitted)
Therefore in relation to any claim that the Visa Application made by or on behalf of the Applicant was not valid and, as a consequence, the Applicant is entitled to declaratory relief, it is necessary for the Court to consider:
a)Whether or not the conduct of the First Migration Agent constituted a fraud “on the Applicant”; and if so,
b)How, if at all, any fraud stultified a statutory process under the Act (Singh [52]).
In determining whether or not the conduct of the First Migration Agent constituted a fraud “on the Applicant”, it is necessary for the Court to consider the nature of the authority given by the Applicant to the First Migration Agent to make the Visa Application on his behalf. There is no fraud on the Applicants if they authorised or countenanced the fraud. The Court accepts that there is no fraud on the Applicants if:
a)They gave imputed authority to the First Migration Agent to engage in unlawful or dishonest conduct in connection with the making of the Visa Application; or
b)They were otherwise “indifferent” to the First Migration Agent engaging in such conduct (Gill [48]-[49] and [51]).
In Kaur, the Full Court considered the type of conduct that constitutes “indifference”, as follows:
132One of the points made by the Full Court in Gill at [49] is that there is a 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.
[…]
134What is meant by indifference in this context approximates to what has been called “reckless indifference” at common law. That is because reckless indifference has been held to be sufficient in terms of a state of mind, to be treated along with intention, as transforming a false representation (for example) into a fraudulent one. […] In their written submissions, the appellants referred to the following statement by Hayne JA (as his Honour then was) in Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188 at 194 (Brooking and Tadgell JJA agreeing):
The expressions “reckless indifference” and “wilful blindness” are useful shorthand expressions to describe some kinds of cases of fraud. As the classical exposition by Lord Herschell in Derry v. Peek [1889] UKHL 1; (1889) 14 App. Cas. 337 at 374 shows, fraud can be proved by showing that a false statement has been made without belief in its truth or, “recklessly, careless whether it be true or false”. But as was said in the Assets Co., Ltd. case, the mere fact that a person might have found out fraud if further enquiries had been made does not of itself prove fraud. The enquiry is an enquiry for actual dishonesty not for want of due care.
[…]
136When placed in its proper context, in the proof of fraud, it is apparent that the requisite state of mind for “reckless indifference” is close to intention. Or at the least, it is a state of mind where the indifference or wilful blindness to the truth of what is being said or done is at such a level that a court considers it appropriate to fix a person or conduct with the same consequences as those fixed for an intentionally fraudulent act.
137What these authorities make clear is that the reckless indifference (or wilful blindness) must be as to the truth of the representation, which is said to be deliberately false. The state of mind is thus found to be close to deliberate dishonesty. Once this is understood, the need for a careful finding, based on probative evidence, becomes apparent.
138Other states of mind will not suffice. Helplessness, or a sense of helplessness, is not the same as reckless indifference. Fear of authority is not the same as reckless indifference. Nor is naivety. Nor is ignorance. Nor is want of due care: see SZFDE at [53], and Pyramid Building Society at 194. All of these states of mind need to be carefully distinguished.
139Dependence or reliance is also not the same as reckless indifference. As the Full Court noted in Gill at [50]:
... 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.
Findings on the Circumstances of the Fraud
The First Applicant retained the First Migration Agent to act for the Applicants in relation to the Visa Application.
The Visa Application was submitted on 30 June 2015. There is no evidence before the Court that at the date the Visa Application was made the First Migration Agent had knowledge that the activities of Fusion India were being monitored by the Department. The allegations raised in the First Ground 7 are speculation. Further the allegations made in the Second Migration Agent’s 31 October 2015 Email, at [8] above, are also speculation.
Speculation is not sufficient to satisfy the Court that there has been any fraud.
The Applicants have failed to prove that they have been the innocent victims of fraud: Maharajan at [113].
Were the Applicants “Indifferent”?
As the Court has found that that the Applicants have not proved fraud of the First Migration Agent, it is not necessary for the Court to proceed to consider whether the Applicants were “indifferent” to the First Migration Agent’s alleged unlawful conduct.
Conclusion First Ground 7
The Court finds that after the Applicants received the Department’s 20 October 2015 Letter they:
a)Retained the Second Migration Agent shortly thereafter.
b)Provided the Second Migration Agent with instructions that constituted the basis of the Second Migration Agent’s 31 October 2015 Email.
c)Received the Invitation to Comment.
d)Took advice from the Second Migration Agent in relation to the Invitation to Comment and then made a decision as to how to respond to the Invitation to Comment and acted upon their decision accordingly.
No jurisdictional error arises as a result of the allegations made in the First Ground 7.
The Second Ground 7 is dismissed.
Second Ground 7
The Applicants plead in the Second Ground 7 as follows:
The Tribunal failed to accord procedural fairness to the applicant by not supplying a copy of the request made by the employer of the applicant by which the nomination application was allegedly withdrawn. Similar question regarding procedural fairness to be adopted by the courts and other quasi judicial authorities was presented to the Full Court in the case of Durani v Minister for Immigration and Border Protection (2014). The Court held that when the overriding requirement that a visa holder be afforded with procedural fairness is not met, jurisdictional error will be found.
(Without alteration)
The Applicants in the Second Ground 7 fail to provide a citation for the decision of the Full Court of Durani v Minister for Immigration and Border Protection pleaded in this ground. The Minister’s Written Submissions identify Durani v Minister for Immigration & Border Protection [2014] FCAFC 79 (Durani) as being the only Full Federal Court of Australia decision in 2014 bearing the case name “Durani” in 2014[50]. If this is the decision that is being referred to by the Applicants, it is unclear how it has any relevance to this proceeding.
[50] Minister’s Written Submissions, at [27].
In Durani the Full Federal Court determined that the Minister had erred jurisdictionally in cancelling the applicant’s subclass 175 visa under s.501A(2) of the Act. The applicant did not meet the “character test” and the Minister determined that it was in the national interest to cancel the applicant’s visa. The specific error identified by the Full Federal Court was the Minister’s failure to afford the applicant procedural fairness in relation to his conclusion that the applicant’s visa should be cancelled in the national interest because his criminal convictions impacted adversely on the integrity of the skilled migration program[51].
[51] Durani, at [73].
It is unclear how the Applicants contend that Durani has any relevance to this case, other than the general proposition that procedural fairness obligations may apply to the exercise of statutory powers and a failure to afford procedural fairness may give rise to jurisdictional error in certain circumstances. In Durani the Full Federal Court was concerned with the exercise of a broad discretionary statutory power to cancel a visa. In the present case, the Tribunal was engaged in the statutory task of coming to the necessary state of satisfaction under s.65 of the Act as to whether the First Applicant met the specified criteria for the grant of the Visa.
In any event, the Applicants were not denied procedural fairness. The Applicants had been on notice of the critical issue in the determination of the Visa Application since well before the Visa Application was refused, as follows:
a)The First Applicant was served with the Department’s 20 October 2015 Letter.
b)The Second Applicant gave evidence as set out in [24] above.
c)The Applicants received the Invitation to Comment. The Applicants did not respond to the Minister’s delegate. The factual conclusion about the withdrawal of the nomination was not challenged prior to the Delegate’s Decision.
d)The Applicant’s August 2016 Tribunal Submission acknowledged that the nomination had been withdrawn. This is referred to in [32] above.
No jurisdictional error arises as a result of the allegations made in the Second Ground 7
The Second Ground 7 is dismissed.
Ground 8
The Applicants plead in Ground 8 as follows:
In the present case the Tribunal had orally asked the applicant to comment on the adverse information without giving her a specific opportunity to respond. Judge Cameron of the Federal circuit Court of Australia was called upon in the case of Shrivastava v Minister for Immigration & Anor., (2015) FCCA 483 (10 March 2015). To determine if there was a difference in asking to comment instead of responding and failing to do so would amount to the denial of procedural fairness. His Honour held that if the AAT forwards only an opportunity to comment, rather than to respond, it may deprive a visa applicant of “procedural fairness”. The Tribunal may thus committed jurisdictional error, which could lead to this decision by the Tribunal being vacated.
Judge Cameron found that there is a genuine, legally significant difference between an invitation simply to “comment on” information and an invitation to “respond to” that information. His honour held that, although the words “comment on” and “respond to” may appear to mean “much the same thing”, the differences are material. In Judge Cameron’s view, the concept of “commenting” is narrower than the concept of “responding to” adverse information, with “commenting” being restricted in meaning to “offering commentary”, while “responding to” implying a right to put more substantial material before the Tribunal” or to submit evidence “in rebuttal of the adverse information”.
In Ground 8 the Applicants assert that the Tribunal “orally asked the applicant to comment on the adverse information without giving her a specific opportunity to respond”. The Applicants do not identify the “adverse information” which is alleged in Ground 8.
The Applicant’s reliance on Shrivastava v Minister for Immigration and Anor. [2015] FCCA 483 (Shrivastava) is misconceived. In Shrivastava the Court found that the Tribunal had failed to follow the prescribed procedure in s.359AA of the Act in giving the review applicant sufficient opportunity and additional time to respond to adverse information put to the applicant during the hearing[52]. Here, there was no “adverse information” that the Tribunal was required to allow an opportunity to respond to.
[52] Shrivastava, at [26]-[29].
Further, this ground somewhat contradicts Grounds 3-6 where the Applicants claim that information was not put to them under ss.359A or 359AA. It suggests that the Tribunal did put adverse information to the Applicants, but did not give a sufficient opportunity to comment. For the reasons given above in relation to Grounds 3-6, there was no obligation for the Tribunal to put any matters to the Applicants pursuant to s.359AA of the Act, it does not appear the Tribunal did put any “information” to the Applicants and, consequently, no failure to follow the “prescribed procedure” can be established.
No jurisdictional error arises as a result of the allegations made in Ground 8.
Ground 8 is dismissed.
Ground 9
The Applicants plead in Ground 9 as follows:
The Tribunal did not give any opportunity to the applicant to prove that the case officer had wrongly refused to approve the nomination application lodged by the employer of the applicant.
On a factual level, Ground 9 fails as it is clear that the nomination application was not “refused”. It was “withdrawn”. A “case officer” had no relevant role in the withdrawal of the nomination application and therefore the Applicants could not have “proved” such was “wrongful”.
Further, for the reasons given in relation to the Second Ground 7, at [76(a) and (b)], the Applicants have acknowledged since before the Visa Application was refused that the nomination was withdrawn. The Tribunal’s task was to determine whether a nomination existed at the time of its decision. The Tribunal’s task was not to determine the reasons why the nomination was not presented at the time of its decision. The reasons why the nomination was not presented could only be relevant if the Tribunal had some discretion to waive the requirement in cl.187.223(3), or to permit an alternative nomination to be presented. The Tribunal did not have such power.
For these reasons, no jurisdictional error arises as a result of the allegations made in Ground 9.
Ground 9 is dismissed.
Conclusion
The Application fails to identify any jurisdictional error.
The Court is otherwise not satisfied that any jurisdictional error arises.
The Application is to be dismissed.
The Minister seeks the sum of $7,467, which is the scale costs allowed at the relevant time in Item 3, Division 1 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth)[53]. An order will accordingly be made that the First and Second Applicants pay the Minister the sum of $7,467.
[53] Transcript P33:L6-33.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 18 June 2020
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