Katragadda v Minister for Immigration
[2020] FCCA 723
•1 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KATRAGADDA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 723 |
| Catchwords: MIGRATION – Skilled Visa – Decision of the Administrative Appeals Tribunal – whether the applicant was "indifferent" to agent's conduct – whether alleged fraud vitiated the Tribunal's decision – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.21.02(1) Migration Act 1958 (Cth), ss.46, 98, 359A, 476 Migration Regulations 1994 (Cth), cl.485.221, 485.224 |
| Cases cited: Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398; (2016) 161 ALD 386 |
| Applicant: | NARENDRA KATRAGADDA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1304 of 2014 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 19 March 2019 |
| Date of Last Submission: | 19 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 1 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr Knowles SC |
| Second Respondent: | The Second Respondent filed a submitting notice, save as to costs |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application filed on 30 June 2014 is dismissed.
Any application for costs to be made within 28 days after these Orders pursuant to r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1304 of 2014
| NARENDRA KATRAGADDA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant seeks judicial review of a decision of the Migration Review Tribunal, dated 12 June 2014 (Tribunal). The Tribunal affirmed the decision of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) subclass 485 (Temporary Graduate) visa (Skilled Visa).
The Applicant seeks a declaration that the application for the Skilled Visa made on 9 March 2011 (Skilled Visa Application) is and was invalid. The Applicant also seeks a declaration that Public Interest Criteria 4020 (PIC 4020) of Schedule 4 of the Migration Regulations 1994 (Cth) (Migration Regulations) ought not to be applied against the Applicant.
Background
The Applicant is a citizen of India (Court Book (CB) 2). On 9 March 2011, the Applicant lodged the Skilled Visa Application (CB 1-10). The Skilled Visa Application stated that the Applicant had obtained a skills assessment from Trades Recognition Australia (TRA) with a reference number of “TRA10/284672183” (CB 8).
On 10 March 2011, the Applicant contacted the Department of Immigration and Citizenship (as it then was) (Department) to advise of a forthcoming trip to India to visit his family (CB 28-29). At that time the Applicant informed the Department of his current email address (Applicant’s Gmail Address).
In correspondence sent to the Applicant’s Gmail Address on 17 February 2012 (CB 21-23) (February 2012 Email), the Department invited the Applicant to comment on adverse information. The February 2012 Email stated, among other things:
It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.
In addition, as part of your application you answered ‘yes’ to the question ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’ Further, in your application you provided the following reference indicating a successful skills assessment TRA10/284672183. This reference was referred to TRA for verification. TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.
The February 2012 Email also stated under a subsequent heading:
You can withdraw your application at any stage during processing. If any applicant wishes to withdraw their application, they must advise the department in writing. This advice can include any number of applicants but must be signed by each person aged 18 years and over.
Delegate’s Decision
On 20 April 2012, a delegate of the First Respondent (Delegate) refused to grant the Applicant a Skilled Visa (Delegate’s Decision) (CB 42-47). The Delegate’s Decision stated:
Whilst S & S Migration are not declared as agents in relation to your 485 application, given records of this application were found on their premises I consider they assisted you in the lodgement of this application. The operation of s98, in line with policy advice, is that you are still legally taken to have completed the form even if it is completed on your behalf (CB 45).
Section 98 of the Migration Act1958 (Cth) (MigrationAct) provides:
A non-citizen who does not fill 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.
On this basis the Delegate found that the Applicant did not satisfy PIC 4020(1), as defined in Schedule 4 of the Migration Regulations. In the Delegate’s Decision the Delegate explained the relevant legislative regime as follows:
[…] this application has been assessed against the requirements of Regulation 485.224 as at 2 April 2011. On this date this regulation was amended to include the PIC 4020 criterion.
Schedule 2 of the Migration Regulations 1994 sets out the criteria to be met for the grant of Skilled (Provisional) (class VC) subclass (skilled VC) subclass 485 (Skilled-Graduate) visa. Regulation 485. 224 is one of the mandatory requirements for the grant of the Visa and it states:
Regulation 485.224
The applicant
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and
(b) if the applicant had turned 18 at the time of application satisfies public interest criterion 4019.
Public interest criterion 4020 (PIC 4020) is defined in Schedule 4 of the Migration Regulations 1994.
Public Interest Criterion 4020
(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 the application;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware 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 Delegate found that the TRA reference number that was provided in the Skilled Visa Application had been provided to indicate that the Applicant had a valid skills assessment, which was a requirement for the grant of that class of visa, and that the statement that the Applicant had such a skills assessment was “[…] both false and misleading at the time it was given” (CB 45).
The Delegate also found that as the Applicant had not provided any information to the Department in response to its invitation to comment on adverse information in relation to the Skilled Visa Application, there was no basis to waive the requirements of PIC 4020(1), which the Delegate had power to do under PIC 4020(4), in compassionate or compelling circumstances. The Delegate therefore found that the Applicant did not satisfy the criteria for the grant of a Skilled Visa.
A copy of the Delegate’s Decision was sent to the Applicant’s Gmail Address.
Tribunal Decision
On 9 May 2012, the Applicant applied to the Tribunal for review of the Delegate’s Decision (CB 51-71). In support of the application to the Tribunal, the Applicant lodged a statement dated 27 April 2012 (Applicant’s 2012 Tribunal Statement) (CB 72-6). In the Applicant’s 2012 Tribunal Statement the Applicant claimed that S & S Migration had made the Skilled Visa Application for him and, in doing so, had included false information without his knowledge. He also claimed that he had not received the February 2012 Email.
On 10 February 2014, the Tribunal wrote to the Applicant and invited him to comment on information which it considered would be the reason, or a part of the reason, for its decision (CB 87-89) (February 2014 Tribunal Letter). The particulars of the information referred to by the Tribunal included:
You nominated the occupation of Automotive Electrician in your visa application.
On the application form you completed details about your skills assessment and you stated that you had a skills assessment as an Automotive Electrician from Trades Recognition Australia (TRA), dated 15 February 2010, with the reference/receipt number TRA 10/284672183.
The Department’s inquiries indicated that you lodged your application with the assistance of a business called S & S Migration, which has been found to have lodged a number of applications to the Department containing false and misleading information.
[…]
On 20 December 2011, TRA informed the Department that they held no record of you. They could not verify the reference TRA10/284672183 as it did not exist on the TRA systems and they had no record of you ever holding a skills assessment.
By an email dated 4 March 2014, the Applicant responded to the February 2014 Tribunal Letter (March 2014 Letter) (CB 91-92). The Applicant again claimed that S & S Migration had made the Skilled Visa Application for him and in doing so had included false information. The Applicant also forwarded to the Tribunal with the March 2014 Letter copies of some documents (CB 93-97). These documents included a page of an ANZ bank statement for the period between 9 March 2011 to 19 April 2011 (ANZ Statement), a flyer (CB 93) (S & S Migration Flyer) which included the following:
ATTENTION INTERNATIONAL STUDENTS!
SECURE YOUR FUTURE! WE ARE HERE TO ASSIST!
DON’T WANT TO STUDY!! DON’T HAVE 6 EACH IN IELTS!!
APPLY FOR WORK PERMIT FOR UP TO 4 YEARS AND WORK FULL TIME**
The Tribunal invited the Applicant, by letter dated 6 March 2014, to appear at a hearing on 8 April 2014 (CB 105-111). On 8 April 2014, the Tribunal conducted a hearing at which the Applicant appeared, gave evidence and presented arguments. The Applicant was assisted by an interpreter in the Teluga and English languages (CB 112 and 134 [4]-[7]).
On 12 June 2014, the Tribunal handed down its decision, in which it affirmed the Delegate’s Decision to refuse to grant the Applicant a Skilled Visa (CB133-140) (Tribunal Decision).
In its decision, the Tribunal identified the background to the review application and referred to the February 2014 Tribunal Letter, sent pursuant to s.359A of the Migration Act, requesting the Applicant to comment on information the Tribunal considered would be part of the reasons affirming the decision.
The Tribunal identified that the issue in the review was whether the Applicant met PIC 4020, as required by cl.485.224 of Schedule 2 to the Migration Regulations. Relevantly in that regard, this required that there was no evidence that the Applicant had given or caused to be given to the First Respondent (Minister), an officer, the Tribunal, a relevant assessing authority, or Medical Officer of the Commonwealth, a bogus document or information that was false or misleading in a material particular, in relation to the application for the visa or a visa that the Applicant held in the past 12 months before the application was made.
The Tribunal noted that the requirements in PIC 4020(1) and (2) could be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). The Tribunal also referred to the definition of ‘information that is false and misleading in a material particular’ in PIC 4020(5).
The Tribunal noted that when making the Skilled Visa Application, the Applicant nominated the occupation of Automotive Electrician. The Applicant stated in the Skilled Visa Application that he had a TRA skills assessment, dated 15 February 2010 and provided a TRA reference/receipt number.
The Tribunal noted that the February 2014 Tribunal Letter raised with the Applicant that the Skilled Visa Application was lodged by the business called S & S Migration, and that business had been found to have lodged a number of applications containing false and misleading information. The Tribunal identified the Department as having contacted TRA in relation to the Applicant’s skills assessment and that TRA advised that it had no record of the Applicant and could not verify the reference in the TRA number provided by the Applicant, as it did not exist on the TRA systems.
It was noted that the Applicant had provided no comments or explanation, although he did provide a response to the February 2014 Tribunal Letter. It was also noted that the Applicant had submitted to the Tribunal documents relating to courses he had undertaken in automotive engineering and management, a copy of the S & S Migration Flyer he relied on in approaching S & S Migration and evidence of payment he made to S & S Migration.
The Tribunal summarised what occurred at the hearing, with the Applicant acknowledging that he had applied for the Skilled Visa using S & S Migration on 9 March 2011, that he had paid them a fee and that he authorised them to make the Skilled Visa Application. The Applicant referred to coming to Australia on 15 November 2008 to undertake a Certificate III course in Automotive Mechanical Technology and a Diploma of Business and Front Line Management, which he completed on 22 November 2010.
The Tribunal identified the Applicant, indicating he wanted to settle in Australia and that was why he went to see S & S Migration on 5 March 2011, after seeing a brochure for the agency. The Applicant explained why he thought the firm was a reputable firm and said he was told by the agent that he was eligible for the Skilled Visa, after he showed the agent his documents. The Applicant alleged that he was advised to lodge the Skilled Visa Application and that upon allocation of a departmental case officer, he would then be required to submit documents such as a police clearance, medicals, International English Language Testing System (IELTS) results and a skills assessment.
The Applicant alleged that he took his certificates, passport and passport photos to S & S Migration and paid a fee for the service he received from S & S Migration. The Applicant alleged that the agent from S & S Migration called him after one or two days, to confirm that the Skilled Visa Application had been made. The Applicant claimed that he did not sign the Skilled Visa Application and it was lodged on his behalf. The Applicant alleged that he was told that he would receive a copy of the Skilled Visa Application, although he alleged he did not receive a copy.
The Applicant was given a transaction reference number (TRN) which said that his Skilled Visa Application was lodged. He said that he kept checking online where it showed his bridging visa status.
The Applicant alleged that when the Skilled Visa Application was refused, he found out that S & S Migration had given false and misleading information. The Applicant alleged that he did not do this intentionally.
The Tribunal found that S & S Migration made the Skilled Visa Application on the Applicant’s behalf and with his authority. The Tribunal found that the Skilled Visa Application was validly made on behalf of the Applicant (CB 137 [18]).
The Tribunal identified the Applicant’s argument that it was S & S Migration that had provided the information. The Tribunal correctly identified that it was not necessary for it to conclude that the Applicant was aware the information was purposely untrue for PIC 4020 to be engaged: Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252.
Having regard to the information provided to the Department by TRA, the Tribunal found that the Applicant had not applied to TRA for an assessment of his skills when he made the Skilled Visa Application and found that he did not have a skills assessment from TRA, dated 15 February 2010. The Tribunal found that the reference/receipt number provided on the Skilled Visa Application was not a TRA reference number. The Tribunal also found that the information on the Skilled Visa Application that the Applicant caused to be given to the Department, stating that he had a skilled assessment from TRA, dated 15 February 2010 with a reference/receipt number TRA 10/284672183, was false or misleading in a material particular. The Tribunal was satisfied that this information was purposefully untrue (CB 137 [20]).
It was in these circumstances that the Tribunal found that the Applicant had caused to be given to the Minister information that was false and misleading in a material particular, in relation to the Skilled Visa Application. The Tribunal found that such information was relevant to cl.485.221 of Schedule 2 to the Regulations and the Tribunal was not satisfied that the Applicant met PIC 4020(1) (CB 138 [21]).
The Tribunal then turned to consider the issue of whether there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen in order to waive PIC 4020(1), pursuant to PIC 4020(4).
The Tribunal referred to the Applicant’s submissions concerning other cases relating to S & S Migration and that the Applicant felt that he had been the victim of a fraud and had not committed any fraud. The Tribunal was not satisfied that those circumstances amounted to compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (CB 138 [24]).
The Tribunal also referred to the work being undertaken by the Applicant and his employer’s evidence that it would be difficult and costly to replace him. The Tribunal accepted that the Applicant was a trusted employee relied on by his employer. The Tribunal was again not satisfied that those circumstances amounted to compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. It was in those circumstances the Tribunal decided not to waive the requirements in subclause PIC 4020(1) (CB 138 [27]).
Having considered all the circumstances, the Tribunal decided not to waive the requirements in subclause PIC 4020(1) (CB 138 [27]).
The Tribunal concluded, on the basis of the foregoing that the Applicant did not satisfy PIC 4020 for the purposes of cl.485.224 of the Second Schedule of the Migration Regulations (CB 138 [28]) and it affirmed the Delegate’s Decision not to grant the Applicant a Skilled Visa (CB 139 [30]).
Proceedings in this Court
The Applicant commenced proceedings for judicial review under s.476 of the Migration Act on 30 June 2014. Those proceedings were subject to a decision of a different Judge on 5 May 2015. The Orders by that Judge were set aside by consent in the Federal Court of Australia on 31 July 2017 and the matter remitted back to this Court for a further hearing.
The matter came on for hearing on 19 March 2019. The Applicant relied on the following documents:
a)Amended Application, filed 29 June 2015.
b)Notice to Admit Facts, filed 29 November 2018.
c)Outline of Submissions of the Applicant, filed 7 December 2018.
d)Applicant’s Affidavit, filed 10 December 2018 (Exhibit A2) (Applicant’s December 2018 Affidavit).
e)Affidavit of Nicholas Anthony Moore, filed 21 February 2019 (Exhibit A1) (Moore Affidavit).
The Minister relied on the following documents:
a)Affidavit of the Applicant, filed 30 June 2014 (Exhibit R1) (Applicant’s June 2014 Affidavit).
b)Affidavit of the Applicant filed 29 June 2015 (Exhibit R2) (Applicant’s June 2015 Affidavit).
c)Notice of Dispute, filed 10 December 2018.
d)Affidavit of Vincenzo Murano, filed 20 December 2018 (Exhibit R4) (Murano Affidavit).
e)Affidavit of Emily Jane Hilly, filed 20 December 2018 (Exhibit R5) (Hilley Affidavit).
f)Minister’s Outline of Submissions, filed 20 December 2018.
g)Affidavit of Sarah Ainsley Thompson, sworn 21 February 2019 (Exhibit R3) (Thompson Affidavit).
Both parties relied on the Court Book filed, on 20 January 2015 as an agreed document (T61 L:46-47).
At the hearing the Applicant and Mr Nicholas Anthony Moore gave evidence and were cross-examined by Counsel for the Minister. Counsel for the Applicant and the Minister each made further submissions.
Grounds of Application
The grounds of the Application, amended on 29 June 2015, are as follows:
1. The tribunal failed to take adequate notice of the fact that the applicant engaged a registered migration agent to lodge his application.
2. The tribunal failed to take notice of the fact that the applicant had no knowledge of the bogus documents submitted by the migration agent.
3. That the tribunal failed to take into account compelling and compassionate circumstances which affect the interest of Australia. IE need to supply skilled persons for shortages in the Australian work force.
4. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that Tribunal erred in finding that Public Interest Criteria 4020 applied.
Particulars
(a) The Applicant’s migration agent at S & S Migration engaged in fraudulent conduct when lodging the visa application on 9 March 2011;
(b) At the time of the visa application, the Applicant had not obtained a skills assessment from Trades Recognition Australia (TRA);
(c) Fraudulently and without knowledge of the Applicant, the migration agent provided false information in the visa application, namely that he did have such an assessment;
(d) Fraudulently and without the knowledge of the Applicant, the migration agent also provided a false TRA number for his purportedly a successful skills assessment;
(e) The conduct of the migration agent amounted to fraud committed against the Applicant and against the Department of Immigration and Border Protection;
(f) The Applicant did not authorise or otherwise condone the conduct this part of the migration agent (sic);
(g) The Application was not a valid application.
5.In the alternative to ground 4, the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that Tribunal erred in failing to consider whether the visa application, if valid, was affected by fraud, such that Public Interest Criteria 4020 did not apply (sic).
Particulars
(a) The Tribunal was obliged to consider whether there was, as claimed by the Applicant, a fraud perpetrated upon him and the Department;
(b) As part of this consideration, the Tribunal was required to consider the nature and extent of the agency between the Applicant and his migration agent;
(c) The Tribunal was then required to determine whether the provision of false information in the visa application, which was clearly a fraud, was within the scope of the agency, such that the Applicant could be held responsible for it.
The Applicant’s Evidence
The Applicant gave evidence that after seeing the S & S Migration Flyer he went to the migration agent’s office. The Applicant said he thought he may have gone to the migration agent’s office the day after seeing the flyer, however he could not remember (T17 L:5-6). The Applicant said that he thought that his first visit to the migration agent was on 8, 9 or 10 March 2011, but he could not remember (T17 L:24-25). He said that he spoke to the migration agent, Mr Ajjan for about 10-15 minutes.
In the Applicant’s December 2018 Affidavit, the Applicant deposed that when he first visited the migration agent’s office he took with him “[…] my study certificate, passport, two passport photos and IELTS certificate” [4].
The Applicant gave evidence that at the time he visited the migration agent’s office, he had made plans to go back to India in 2011 (T17 L:9-11).
The Applicant gave evidence that during his first visit to the migration agent’s office, he instructed Mr Ajjan to make the Skilled Visa Application on his behalf (T18 L:3-5). In the Applicant’s December 2018 Affidavit, the Applicant said in relation to his first visit to the office of the migration agent [5]:
I took these documents with me to the consultation to be able to show Mr Ajjan the documents. He then took my details for the application and I paid him $2,000 for his consultation fee preparing and applying for the subclass 485 visa on my behalf. The Departmental application fee was deposited from my bank account.
The Applicant was questioned in relation to the payment of the $2,000 referred to in the Applicant’s December 2018 Affidavit, as follows (T18 L:21-33).
CounselSo is that a separate amount to the visa application fee?
Applicant Yes. Yes.
CounselOkay. So how did you pay that separate amount of $2,000? Was that paid by cash or by card or otherwise?
Applicant I guess I paid through card. I guess - I am not ---
Counsel You guess?
Applicant Yes.
Counsel But you say that the ---?
Applicant--- at the time I only have one card which I provided previously my bank statement at that time. ANZ Bank. I’m not sure that I paid cash.
Counsel I will come to that. Yes I will come to that statement. So all you’ve got the application fee and $2000 for the consultation fee?
Applicant Application fee plus $2,000.
The Applicant gave evidence that that all moneys that he had paid Mr Ajjan were paid on the first visit, a day or so after he had seen the S & S Migration Flyer (T19 L:1-3).
The Applicant said that he went back to the migration agency the next day to check that the Skilled Visa Application had been lodged. The Applicant said that he thought that the next visit was probably on a weekday (T19 L:16-22).
In the March 2014 Letter, the Applicant said that he first went to the office of S & S Migration on 5 March 2011. Counsel for the Minister said that this was a Saturday. In the March 2014 Letter the Applicant said that on his first visit, the agent told him that he was eligible for a Skilled Visa. The Applicant said that he then returned to the migration agent on 8 March 2011 to lodge his Skilled Visa Application, taking his “[…] certificates and passport and Passport size photographs”. In the March 2014 Letter the Applicant said he paid $2,265 for the agent’s fees and $235 for the visa fees (CB 92).
The ANZ Statement indicates a payment of $95 was made to “DEPT OF IMMIGRATION MELBOURNE 18” on 10 March 2011. The Applicant was unable to say what this payment was for (T21:44-22:4). The ANZ Statement also indicates a payment on 14 March 2011 for $235 for “VISA DEBIT PURCHASE CARD 1047 IMMIGRATION AUSTRALIA BELCONNEN EFFECTIVE DATE 09 MARCH 2011”. The Applicant said that the sum of $235 might have been the fee for the Skilled Visa (T22 L:20-22).
The Applicant’s ANZ Statement indicates the following payments totalling $3,068.75 to S & S Migration:
a)On 10 March 2011 “EFTPOS 1,000 S AND S MIGRATION PT MELBOURNE VIC”.
b)On 11 March 2011 “CARD ENTRY AT BOX HILL BRANCH EFTPOS 803.75 S AND S MIGRATION PT MELBOURNE VIC”.
c)On 11 March 2011 “VISA DEBIT PURCHASE CARD 1047 1,265.00 S AND S MIGRATION PT MELBOURNE VIC EFFECTIVE DATE 09 MARCH 2011”.
The Applicant did not remember if he received a receipt from Mr Ajjan. He did not remember if he asked for a receipt (T21 L:15-21).
The Applicant conceded that in the Applicant’s 2012 Tribunal Statement he said [7]:
[…] I paid him a fee ($2,200) to act on my behalf (T23 L:38).
The Applicant was cross-examined in relation to his evidence of having paid the sum of $2,000, $2,200, $2,265 and $3,068.75 to the migration agent. The Applicant was questioned as follows (T24 L:7-9).
Counsel You checked it to make sure it was right?
Applicant Yes. But I thought the story was needed not the exact figure of the money. […]
The Applicant said that he could not remember how many times that he had visited the migration agent’s office. He was sure that he had been there twice but was not sure if he had been there a third time or whether he had called the migration agent (T24 L:11-13).
The Applicant was questioned about the Applicant’s account of events provided in paragraph 4 of the Applicant’s 2012 Tribunal Statement. In that account the Applicant said that he took his documents on the second visit to the migration agent, the day after his first visit. In the Applicant’s 2012 Tribunal Statement the Applicant also said “He never asked me for a photo”. The Applicant was questioned as follows (T25 L:25-31):
CounselYou didn’t provide him with passport-size photographs?
Applicant Yes.
CounselIs that what you are saying here? “Never asked me for a photo” Do you see there, you’ve said “he never asked me for a photo”?
Applicant Yes.
CounselIs it correct to say that you didn’t actually ever supply him with any passport–size photos in connection with the visa application?
ApplicantI can’t remember that exactly the thing would happen. But I didn’t sign anything from him.
The Applicant later in his evidence said that he had given to Mr Ajjan, the migration agent, passport photos (T28 L:46).
In the Applicant’s 2012 Tribunal Statement the Applicant said [6]:
I attended at his office on another day and told him that I wanted to go to India for a holiday and then he wrote down my TRN and gave it to me. He then said your visa is now done and you can apply for a bridging visa to go for your holiday.
The Applicant conceded that he was referring to a third visit to the migration agent in this paragraph of the Applicant’s 2012 Tribunal Statement (T26 L:3-44).
In the Applicant’s 2012 Tribunal Statement the Applicant said:
7.I departed Australia on 11 March 2011 and returned on June 2011.
8.On my return to Australia, I attended his office and spoke to him and he assured me that everything would be allright. [sic].
The Applicant gave evidence that he did not recall this fourth visit after he returned from overseas. The Applicant conceded that he had not referred to either the third or fourth visit to the migration agent in the Applicant’s December 2018 Affidavit. The Applicant said that this was because he did not recall the third and fourth visits (T27 L:21-43).
The Applicant said that he knew that he had to demonstrate some skills for the Skilled Visa and he agreed that he did not give the migration agent any evidence of skills. He was told by the agent this information could be submitted later on (T28 L:17-24).
The Applicant said that he gave to Mr Ajjan a copy of his IELTS certificate and he conceded that the certificate did not have a sufficient score to satisfy the relevant language requirements for the Skilled Visa (T29 L:1-7). The Applicant said that he did not sign anything. The Applicant agreed that he had no idea what information was going to be included in the Skilled Visa Application (T29 L:27-45).
The Applicant gave evidence that the first time that he saw the Skilled Visa Application was in 2012 pursuant to a Freedom of Information application (T30 L:27-T31 L:25).
The Applicant was questioned in relation to the following statement he made in the in the Applicant’s 2012 Tribunal Statement [5] concerning the Skilled Visa Application (T33 L:7-T34 L:17).
One has only to inspect the application form and you will see that the hand writing bears no resemblance to my own handwriting.
The Applicant was cross-examined in relation to this statement, as follows (T33 L:40-43).
CounselAre you saying that in order to write that sentence, you must have seen the visa application and compared handwriting in the visa application with that of your own handwriting?
ApplicantYes. It’s not my handwriting. That one I can say.
The Applicant gave evidence that when he applied for his bridging visa to travel to India, he informed the Department of his email address, being the Applicant’s Gmail Address (T35 L:6-7). The Applicant departed Australia on 10 March 2011. The Applicant confirmed that the Applicant’s Gmail Address remained his email address at all relevant times (T39:20-33).
The Applicant used the TRN given to him by Mr Ajjan to check the status of the Skilled Visa Application “regularly”. The Applicant did not recall contacting the Department to inquire about the status of the Skilled Visa Application (T40 L:6-36).
The Applicant gave evidence that he did not remember ever receiving a text from Mr Ajjan (T41 L:12-13). The Applicant was shown the following passage from the Applicant’s 2012 Tribunal Statement [9]:
In January 2012, I received an SMS from him saying that he had gone to India to develop his business and he gave me an email address and told me to contact him at that email address.
The Applicant then said he recalled that text. The Applicant said that he could not recall sending any emails to Mr Ajjan or receiving any emails from Mr Ajjan (T41 L:37-T42 L:9).
The Applicant was unable to recall having any telephone conversation with Mr Ajjan after he returned from India in June 2011(T42 L:14-17).
The Applicant gave evidence that he never sought a copy of the Skilled Visa Application from Mr Ajjan (T42 L:19-20). The Applicant said that he did not recall ever getting a receipt or record from Mr Ajjan in relation to his services (T42 L:22-23). The Applicant was unable to recall whether he asked Mr Ajjan for a copy of his Skilled Visa Application or for a receipt for Mr Ajjan’s Services (T42 L:25-26).
The Applicant gave evidence that he had received the February 2012 Email, but that it had gone into his junk email folder (T43 L:44-T44 L:8). The Applicant said that the February 2012 Email was the only email that he had received from the Department that had ever gone into his junk email folder (T45 L:15-21). The Applicant said that he never checked his junk email folder.
The Applicant said that when he received a copy of the February 2012 Email he searched his emails and found it in the junk email folder. The Applicant said that when he found the February 2012 Email in the junk email folder “[…] then I move to my folder, some important papers” (T46 L:28). This happened in 2012. The Applicant said that he no longer had a copy of the email that he said he found in 2012 in his junk email box and then moved into another folder with his important documents (T46 L:24-41).
In the Applicant’s 2012 Tribunal Statement, the Applicant made no mention of finding the February 2012 Email in the junk email box, as an explanation for not responding to the February 2012 Email. The Applicant conceded that he had a representative help him prepare the Applicant’s 2012 Tribunal Statement (T47 L:20-44).
The Applicant conceded that in the March 2014 Letter, he made no mention of finding the February 2012 Email in a junk email box, as an explanation for not responding to the February 2012 email (T47 L:46 – T48 L:2).
The Applicant said that at the hearing at the Migration Review Tribunal, he did not believe that he mentioned finding the February 2012 Email in a junk email box (T48 L:11-16).
The Applicant conceded that he had signed the letter dated 17 April 2014 from his employer to the Department, seeking a waiver of PIC 4020 (Tilley Affidavit, Exhibit “EH-13”), as being “true and correct”.The Applicant also conceded that in this letter there was no mention him of not receiving the February 2012 Email, on the basis of the document having gone into the Applicant’s junk email box (T48 L:22-T49 L:5).
The Applicant conceded that in the Applicant’s June 2014 Affidavit he did not mention not receiving the February 2012 Email, by virtue of it going into a junk email folder (T49 L:7-T50 L:39).
The Applicant’s June 2015 Affidavit states [8]:
The first I knew that there was a problem with the application was when I received the refusal letter. I did not receive any earlier letter asking me to comment about S & S Migration. […]
The Applicant conceded that he had not mentioned in the Applicant’s June 2015 Affidavit, that he had not received the February 2012 Email because it had gone into a junk email folder (T50 L:15-45). The Applicant’s explanation for not mentioning this information was that:
I thought it was not relevant or that important at that time because I don’t know much about which point to speak of (T51 L:1-2).
The Applicant gave evidence that he did not remember contacting the Department between returning from India and the Delegate’s Decision, other than in relation to obtaining a Bridging Visa A (T54 L:35-43).
The Department’s records indicate a record of a telephone conversation on 13 March 2012, as follows (CB 28):
PA called – wanted to know how to get the info he supplied
Asked him to send an email for an ack letter to post lodg. enq [sic].
When this record was shown to the Applicant, the Applicant conceded that he made the telephone call to the Department (T55 L:38-40).
When re-examined, the Applicant said that the migration agent had told him that he would have to provide further information after the Skilled Visa Application at a later date. That information was: a Trades Recognition Australia skills assessment, medicals, police clearance and an IELTS (T58 L:5-29). The Applicant said that at the time of the Delegate’s Decision he had not given any of these documents to his agent or the Department. The Applicant said that he understood that if he did not supply this information his application for a Skilled Visa would be rejected (T58 L:31-43).
Mr Moore’s Evidence
Mr Moore gave evidence confirming his opinion in the Moore Affidavit [3(a)] that, without the Google log files kept by Gmail.com, it would not be possible to determine whether an email delivered to a Gmail.com address in 2012 went into the Applicant’s junk folder. Mr Moore also said that without the Google log files it could not be ascertained whether or not an email that had gone into a junk file had been moved somewhere else (T8 L:14).
Mr Moore gave evidence that he could not check the relevant Google log files himself. He also expressed the opinion that the Applicant would not be able to access the relevant Google log files from Google (T8 L:21-25).
Mr Moore agreed that without the log files there was a great deal of difficulty knowing precisely what happened in respect of an email account and that much was left to speculation (T8 L:40-44).
In relation to whether an email would have been classified by Google or Gmail as spam or junk in 2012, Mr Moore conceded that he did not know what Google’s rules were in 2012. Mr Moore observed that Google was an extremely secretive company and generally did not disclose such matters (T8 L:46-T9 L:16).
Mr Moore gave evidence confirming his opinion in the Moore Affidavit [3(c)] that it was plausible that any two email items might be classified and delivered differently, depending on their “from” address, or the configuration of the server which sent them, or even their text content (T9 L:18-T10 L:9).
Consideration
Ground 1
It is apparent that the Tribunal understood and engaged with the Applicant’s submissions in relation to the migration agent. There is no basis to find that the Tribunal did not have a real and meaningful engagement with the Applicant’s submissions to the Tribunal. The fact that the migration agent was a registered agent and lodged the application, does not give rise to any basis by reason of which the adverse findings by the Tribunal were not open. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, the Tribunal correctly identified that whether the Applicant had knowledge of the bogus documents, submitted by the migration agent, was not determinative of the Skilled Visa Application.
It is apparent that the Tribunal took into account the Applicant’s assertions as to his limited knowledge in respect of the bogus documents submitted by the migration agent. However, it is equally apparent that there was evidence before the Tribunal that the skills assessment was a bogus document and it is apparent that the Applicant authorised the migration agent to lodge the Skilled Visa Application. In those circumstances, it was open to the Tribunal to find that there had been a non-compliance with the requirements of PIC 4020(1). No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, the Applicant’s assertion that there were compelling and compassionate circumstances, does not identify any relevant error. The Tribunal considered the circumstances that were before it and made an adverse finding that was open to the Tribunal. The Applicant’s assertions of shortages in the workplace appears to be a reference to the Applicant’s employer. The Tribunal clearly identified the Applicant’s submissions in respect to his valuable role with his employer, but found they were not compelling or compassionate circumstances to waive the criteria. That adverse finding was open to the Tribunal for the reasons given by the Tribunal. No jurisdictional error is made out in ground 3.
Ground 4
The Applicant’s submissions, in substance, advanced that there had been a fraud on the Tribunal by the migration agent at S & S Migration. The Applicant submitted further that the acts of the migration agent had stultified the operation of the legislative scheme in respect of the review by the Tribunal. The Applicant submitted that the Court should determine whether there was a fraud by the migration agent and, in particular, whether the migration agent fraudulently advised the Applicant as to his eligibility for the Skilled Visa and by submitting the Skilled Visa Application with false information and concealing the migration agent’s role in respect of that false information.
The Applicant submitted that the Skilled Visa Application was not a “valid” visa application within the meaning of s.46 of the Migration Act, by reason of the stultifying effect of the fraudulent conduct of S & S Migration. It was further submitted that it was therefore open to the Tribunal to set aside the Delegate’s Decision on the ground that there was no valid visa application, on the basis that if there was not a valid visa application, the Delegate was precluded from considering the Skilled Visa Application and precluded from making any decision in respect of the Skilled Visa Application (ss.47 and 65 Migration Act).
In relation to ground 4, the Applicant alleges that the absence of the Applicant’s knowledge of the fraud and/or the lodging of the Skilled Visa Application with the false TRA reference, gave rise to there being an invalid application.
Relevant Legal Principles
In Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 (Kaur) the Full Court of the Federal Court considered another 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 Skilled 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 S & S Migration constituted a fraud “on the Applicant”; and if so,
b)How, if at all, any fraud stultified a statutory process under the Migration Act (Singh [52]).
In determining whether or not the conduct of S & S Migration constituted a fraud “on the Applicant”, it is necessary for the Court to consider the nature of the authority given by the Applicant to S & S Migration to make the Skilled Visa Application on his behalf. The Court accepts the submission of the Minister that there is no fraud on the Applicant if he authorised or countenanced the fraud. The Court accepts that there is no fraud on the Applicant if:
a)He gave imputed authority to S & S Migration to engage in unlawful or dishonest conduct in connection with the making of the skilled visa application; or
b)He was otherwise “indifferent” to S & S Migration 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 Applicant retained S & S Migration to act for him in his Skilled Visa Application and paid $3,068.75 for the migration agent’s services. S & S Migration filed the Skilled Visa Application. The Applicant did not sign the Skilled Visa Application.
The Skilled Visa Application was submitted through an “online” process. S & S Migration did not identify itself on the Skilled Visa Application as a migration agent. Instead, the migration agent completed the Skilled Visa Application so as to represent it was filed by the Applicant personally. The migration agent indicated in the Skilled Visa Application that communications in relation to the Skilled Visa Application should be with the Applicant personally.
The Skilled Visa Application contained a number of statements, purporting to have been made by the Applicant, which were false. For example:
a)Under the heading “Skills Assessment”, in answer to the question “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?” The answer “Yes” is typed.
b)Under the heading “Critical data confirmation”, in answer to the later question “Is all the information above correct?”, the answer “Yes” is typed.
c)In answer to the question “Did you receive assistance in completing this form?” The answer “No” is typed, and therefore the consequential questions dealing with assistance (including whether the person providing assistance to complete the form was a migration agent) are said to be unnecessary to answer.
d)Under the heading “Applicant skills assessment”, the nominated occupation is listed as “Automotive Electrician”, and the name of the assessing authority is listed as “Trades Recognition Australia”, with a date of skills assessment entered as “15 FEB 2010” and the reference/receipt number given as “TRA10/284672183”.
Aside from the nominated occupation being listed as “Automotive Electrician”, the rest of the answers provided under the “Applicant skills assessment” section of the form, were not only false in terms of being untrue, but also misleading because there had been no such skills assessment conducted by TRA in relation to the Applicant.
There is then a section titled “Declaration for all applicants” which contains the following information:
Warning: Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information.
The answer “Yes” is typed.
The fraud may be described as follows: the false and deliberate representation by S & S Migration, through the lodgement of the Skilled Visa Application, that the Applicant had, at the time of lodging the Skilled Visa Application, a positive skills assessment from TRA in respect of his nominated occupation as an automotive electrician, when in fact he did not, and that he was in this respect able to satisfy the criteria for the grant of the Skilled Visa, when in fact he could not. The intention of S & S Migration, it can be inferred, was to secure the grant of a Skilled Visa to the Applicant on a false basis.
The evidence then shows that on 20 December 2011, the Department was advised by TRA that it held no record for the Applicant, and that the reference for a skills assessment provided in the Skilled Visa Application could not be verified because it did not exist on the TRA systems.
It was some two months later on 17 February 2012, that the Department informed the Applicant of this situation, when it sent the February 2012 Email to the Applicant at the Applicant’s Gmail Address.
Was the Applicant “Indifferent”?
In this context the Court must consider whether the Applicant was indifferent as to whether S & S Migration acted unlawfully and dishonestly to achieve the Applicant’s desired outcome of obtaining the grant of a Skilled Visa (Gill [48]).
Counsel for the Applicant submitted that the Applicant’s case was that the Applicant was indifferent, however that indifference assumed the bona fides of S & S Migration. In this context Counsel for the Applicant conceded that the Applicant behaved with a significant degree of indifference (T65 L:9-11; T86 L:38-41).
The Applicant was an unimpressive witness and gave inconsistent evidence in relation to number of matters.
There were discrepancies in the Applicant’s evidence concerning the number of occasions that he visited the office of S & S Migration and when those visits took place. This evidence may be summarised as follows:
a)In the Applicant’s 2012 Tribunal Statement, the Applicant refers to four visits on unspecified dates. The second visit took place the day after the first visit [4]. The third visit took place on an unspecified date prior to the Applicant’s departure from Australia on 11 March 2011 [6-7]. The fourth visit took place after the Applicant returned to Australia [8].
b)In the March 2014 Letter, the Applicant refers to two visits, the first on 5 March 2011 and the second on 8 March 2011.
c)When giving evidence before the Tribunal, the Applicant referred to two visits, but did not identify the dates that they took place (Murano Affidavit, “VM-2”, T5 L:7-9 and T6 L:14-20).
d)In the Applicant’s December 2018 Affidavit, the Applicant deposed to two visits to the migration agent on unspecified dates. The second visit took place the day after the first visit [6].
e)When giving evidence at the hearing, the Applicant said that he thought that his first visit to the migration agent was on 8, 9, or 10 March 2011, but he could not remember (T17 L:24-25). The Applicant said that he went back to the migration agency the next day to check that the Skilled Visa Application had been lodged (T19 L:16-22).
There were discrepancies in the Applicant’s evidence concerning what documents the Applicant provided to S & S Migration and when they were provided. This evidence may be summarised as follows:
a)In the Applicant’s 2012 Tribunal Statement, the Applicant stated that he provided his certificate and passport and “all relevant details” to the migration agent on the second visit. The Applicant specifically stated that he was never asked for a photo [4].
b)In the March 2014 Letter, the Applicant said that he took his “certificates and passport and Passport size photographs” on the second visit on 8 March 2011.
c)When giving evidence before the Tribunal the Applicant gave evidence that the migration agent saw “all my documents and other things” during the first visit (Murano Affidavit, “VM-2”, T5 L:5-44).
d)In the Applicant’s December 2018 Affidavit, the Applicant deposed to providing the migration agent, on his first visit, “the documents that I had on me, which included my study certificate, passport, two passport photos and IELTS certificate” [4] .
e)When giving evidence at the hearing, the Applicant gave evidence that he could not remember whether he had provided a passport photo to the migration agent (T25 L:25-31). The Applicant later in his evidence volunteered that he had provided passport photos to Mr Ajjan (T28 L:46). The Applicant confirmed that he took his documents to the migration agent on his first visit, in accordance with the Applicant’s December 2018 Affidavit (T17 L:39-44).
There were discrepancies in the Applicant’s evidence concerning when payments were made to S & S Migration and whether the payments were paid in separate tranches or in single payments. This evidence may be summarised as follows:
a)In the Applicant’s 2012 Tribunal Statement, the Applicant stated that the migration agent took down the Applicant’s debit card details on the second visit [5] and the Applicant paid the migration agent a fee of $2,200 [7].
b)In the March 2014 Letter, the Applicant said that he paid $2,265 for the migration agent’s fees and $235 for the visa fees on his second visit on 8 March 2011.
c)In the Applicant’s December 2018 Affidavit, the Applicant deposed that he paid the migration agent $2,000 for his consultation fee on his first visit [5].
d)When giving evidence at the hearing, the Applicant was initially uncertain whether he had paid S & S Migration by cash. The Applicant then gave evidence that he paid the application fee and $2,000 (T18 L21-33). The Applicant said that all moneys that he had paid Mr Ajjan were paid on the first visit (T19 L:1-3).
e)The ANZ Statement indicates that the total sum of $3,068.75 was paid to S & S Migration:
i)On 10 March 2011 the sum of $1,000;
ii)On 11 March 2011 the sum of $803.75;
iii)On 11 March 2011 (effective date 9 March 2011) the sum of $1,265.
The Applicant therefore gave evidence that he paid four different amounts to S & S Migration, being $2,000, $2,200, $2,265 and $3,068.75. The ANZ Bank Statement suggests three separate payments on three different days.
The Applicant gave inconsistent evidence as to when he was provided with the TRN. In the Applicant’s 2012 Tribunal Statement the Applicant said that he received the relevant TRN on his third visit to the migration agent ([6] and T26 L:3-44). In the Applicant’s December 2018 Affidavit, the Applicant deposed that he had received his “file number” on his second visit to the migration agent [6].
From this inconsistent and conflicting evidence I conclude that the Applicant is indifferent about truthfulness and accuracy in documents, including affidavits filed in this Court.
The evidence the Applicant gave concerning the Skilled Visa Application bearing handwriting, which is referred to in paragraphs 66 and 67, was demonstrably untruthful, as the Skilled Visa Application was typed online. Counsel for the Minister took the Applicant to the copy of the Skilled Visa Application in the relevant pages of the Court Book. The Applicant proceeded to give an absurd justification for his statement in the Applicant’s 2012 Tribunal Statement [5] and also his statements when giving evidence (T33 L:44-T34 L:17).
The Applicant met with Mr Ajjan for only 10 to 15 minutes on the first visit and some documents were given to the migration agent. On the Applicant’s own admission, none of the documents that he gave to S & S Migration met any of the criteria for the Skilled Visa. The Applicant said that he knew that he had to demonstrate some skills for the Skilled Visa and he agreed that he did not give the migration agent any evidence of skills (T28 L:17-24). The Applicant gave to Mr Ajjan a copy of his IELTS certificate and he conceded that the certificate did not have a sufficient score to satisfy the relevant language requirements for the Skilled Visa (T29 L:1-7).
The Applicant said that he did not sign any documents. The Applicant had no idea what information was going to be included in the Skilled Visa Application (T29 L:27-45). The Applicant never sought a copy of the Skilled Visa Application from Mr Ajjan (T42 L:19-20). The Applicant did not recall ever getting a receipt or record from Mr Ajjan in relation to his services (T42 L:22-23). The Applicant was unable to recall whether he asked Mr Ajjan for a copy of his Skilled Visa Application lodged with the Department or for a receipt for Mr Ajjan’s services (T42 L:25-26).
After the Applicant returned to Australia in June 2011, the Applicant did not recall having any telephone conversation with Mr Ajjan (T42 L:14-17). Neither did the Applicant recall sending any emails to Mr Ajjan or receiving any emails from Mr Ajjan (T41 L:37-T42 L:9).
The Applicant did not contact the Department in relation to the Skilled Visa after he returned from India, until he telephoned the Department on 13 March 2012 seeking information (T55 L:38-40). This telephone contact took place after the February 2012 Email was sent to the Applicant’s Gmail Address.
The Court would ordinarily expect some inconsistency in a witness’ evidence, particularly where events occurred a number of years previously. In this case however, there have been numerous opportunities where the Applicant has been required to consider quite carefully what happened and to present evidence. In such circumstances, the Court would have expected a much better degree of consistency in the Applicant' account. The cumulative effect of the Applicant’s very inconstant evidence goes to the reliability of the Applicant as a witness. As a result of the significant number of inconsistencies in the Applicant’s evidence, I am unable to accept the Applicant as a witness of truth.
In my opinion the Applicant’s behaviour was sufficiently indifferent to constitute “reckless indifference” or “wilful blindness” as explained in Kaur ([134], [136]-[137]). The Applicant did not provide a critical response to the conduct of S & S Migration providing him with limited information. The Applicant was blithe about the process of the Skilled Visa Application. He made no inquiries about the application for a period of 12 months.
The Applicant has not discharged the onus that he was the innocent victim of fraud (Maharjan [113]).
I therefore find:
a)The Applicant gave S & S Migration general authority to act as his agent and to make the Skilled Visa Application.
b)The Applicant was indifferent as to whether or not S & S Migration acted unlawfully or dishonestly to obtain the grant of a Skilled Visa for him.
c)The conduct of S & S Migration did not constitute a fraud on the Applicant.
Was there a Valid Visa Application?
Notwithstanding the Court’s finding in the previous paragraph, I now turn to consider if there was a fraud on the Applicant, whether the processes of the Migration Act were stultified.
The Applicant’s Gmail Address was his email address at all relevant times (T39 L:20-33). The Applicant said that he had received the February 2012 Email, but that it had gone into his junk email folder (T43 L:44-T44 L:8). The Applicant said that the February 2012 Email was the only email that he had received from the Department that had ever gone into his junk email folder (T45 L:15-21). The Applicant said that he never checked his junk email folder.
The Applicant telephoned the Department on 13 March 2012 seeking information (T55 L:38-40, CB 28). On 13 March 2012, the Applicant also sent an email to the Department from the Applicant’s Gmail Address. This was some three weeks after the February 2012 Email was sent by the Department to the Applicant’s Gmail Address. The Applicant’s email to the Department stated (CB 28, Hilley Affidavit, 9(c), Exhibit “EH-9”):
I need a copy of my file and password for e-visa.
Prior to the Applicant’s telephone call and email on 13 March 2012 to the Department, the Applicant had not otherwise contacted the Department directly in relation to the Skilled Visa Application, whilst he was in India or after returning from India (T42 L:14-17; T54 L35-43).
On 15 March 2012, the Department sent an email to the Applicant’s Gmail Address which stated (CB 26-27, Hilley Affidavit 9(d), Exhibit “EH-9”):
[…] the email address you have used for this online enquiry is not recorded as authorised to receive communications relating to this general skilled migration application […].
The first opportunity that the Applicant had to comment on the February 2012 Email arose in the Applicant’s 2012 Tribunal Statement. In the Applicant’s 2012 Tribunal Statement, the Applicant said [3]:
I never received that invitation to comment, given my employment takes me to the country where I spend long periods of time and then I return to my place of residence in Melbourne, that letter was never received, because if I did receive it, I would have responded.
The second opportunity that arose for the Applicant to comment on the February 2012 Email arose in the March 2014 Letter. The March 2014 Letter was a general response to a letter, dated 10 February 2014, from the Tribunal. In the March 2014 Letter, the Applicant elected to embark upon a general description of what occurred in relation to his dealings with S & S Migration. In the March 2014 Letter, the Applicant said:
I applied for right of information (My visa copy details) and came to know that they have contacted me on 17 February 2012 to comment on my application but I didn’t receive any mail.
In the March 2014 Letter, the Applicant said “I didn’t receive any mail”. The Applicant did not say “Although I received it, I didn’t see it because it went in to my junk email folder”.
The third opportunity that arose for the Applicant to comment on the February 2012 Email arose in the letter, dated 17 April 2014, which the Applicant conceded that he had signed, from his employer to the Department, seeking a waiver of PIC 4020 (Tilley Affidavit, Exhibit “EH-13”). The Applicant had signed this letter as being “true and correct”.In this letter there was no mention of the Applicant not receiving the February 2012 Email, on the basis of the document having gone into the Applicant’s junk email box (T48 L:22-T49 L:5).
The fourth opportunity that arose for the Applicant to comment on the February 2012 Email arose in the Applicant’s June 2014 Affidavit. The Applicant conceded he did not mention in the Applicant’s June 2014 Affidavit, not receiving the February 2012 Email, by virtue of it going into a junk email folder (T49 L:7-T50 L:39).
The fifth opportunity that arose for the Applicant to comment on the February 2012 Email arose in the Applicant’s June 2015 Affidavit. The Applicant deposed in the Applicant’s June 2015 Affidavit [8]:
The first I knew that there was a problem with the application was when I received the refusal letter. I did not receive any earlier letter asking me to comment about S & S Migration […].
The Applicant’s June 2015 Affidavit was prepared by the previous lawyers acting on behalf of the Applicant. I would have expected to see a clear and accurate description of the fact that the Applicant did receive the February 2012 Email but he did not see it at the relevant time, as it was delivered into his junk email folder. The Applicant’s June 2015 affidavit does not contain such evidence.
The sixth opportunity that arose for the Applicant to comment on the February 2012 Email arose when the Applicant gave evidence before the Tribunal on 8 April 2018. The Applicant told the Tribunal that he did not get the February 2012 Email and the Tribunal asked (Murano Affidavit, “VM-2”, T7 L:12-44) :
So you eventually did find out that your Visa had been refused?
The Applicant then proceeded to provide an explanation about what happened when he received the February 2012 Email. It is at this point during the hearing that the issue most clearly arises. However the Applicant made no mention of not seeing the February 2012 Email because it was delivered into a junk email folder. The Applicant could have availed himself of opportunities at other points during the course of the hearing to raise this matter, should he have chosen to do so.
The first occasion that the Court became aware of the Applicant’s claim that the February 2012 Email had been delivered into the Applicant’s junk email folder, was in the Applicant’s December 2018 Affidavit [10].
The Applicant’s current solicitors prepared the Thompson Affidavit. In that affidavit Ms Thompson deposed [2]:
On 5 December 2018 I was instructed by the Applicant that the [Minister’s] invitation to comment on adverse information was sent to his junk mail and that he did not realise it was there until he received the notification of his refusal decision.
From the Thompson Affidavit I infer that the Applicant’s solicitors had not been instructed prior to 5 December 2018 by the Applicant, that the February 2012 Email had been delivered into his junk email folder.
The Applicant said that when he received a copy of the February 2012 Email, he searched in his email and found it in the junk email folder. The Applicant said that when he found the February 2012 Email in the junk email folder he moved it into another folder with his important documents (T46 L:24-41). The Applicant said that he no longer had a copy of the February 2012 Email. The February 2012 Email was not produced by the Applicant in discovery in this proceeding (T46 L:30-41).
I accept Mr Moore’s evidence that it was plausible that any two email items might be classified and delivered, depending on their “from” address, or the configuration of the server which sent them, or even their text content (T9 L:18-T10 L:9). Mr Moore’s expert opinion was however of little assistance in determining in this case, what actually happened with the delivery of the February 2012 Email.
I do not accept the Applicant’s evidence that the February 2012 Email was delivered into a junk email folder associated with the Applicant’s Gmail Address and that the Applicant did not discover the email until after the Delegate’s Decision. I do not accept the Applicant’s evidence on basis that it is a recent invention. The Applicant has had six opportunities over a period of some six years to have provided this evidence. He has had ample opportunity to produce this evidence and yet he has failed to do so until the December 2018 Affidavit.
I therefore find that any fraud on the part of S & S Migration did not stultify any decision-making process under the Migration Act.
The Skilled Visa Application was therefore a valid visa application pursuant to s.46 of the Migration Act.
No jurisdictional error is therefore made out by ground 4.
Ground 5
In relation to ground 5, the Applicant contends that the Tribunal should have found that, even if the Skilled Visa Application was valid, there was a fraud by the migration agent on the Applicant and the Tribunal by reason of which the Tribunal should have found that PIC 4020 did not apply.
The Tribunal found that the Applicant authorised the making of the Skilled Visa Application and that there was a valid application. In those circumstances, whether or not the Applicant was knowingly involved in the provision of the false or misleading information, was not a matter that the Tribunal had to determine. Accordingly, no jurisdictional error as alleged in ground 5, is made out.
Conclusion
The Application filed on 30 June 2014, as amended, is dismissed.
The parties have requested to be heard on costs as this has been a non-standard matter (T81 L:38-T82 L:9). Any application for costs is to be made within 28 day after orders are made pursuant to r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 1 April 2020
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Statutory Construction
-
Natural Justice
7
4