Katragadda v Minister for Immigration
[2015] FCCA 2478
•11 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KATRAGADDA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2478 |
| Catchwords: MIGRATION – Application for judicial review – whether PIC 4020 require finding of urgency – whether PIC 4020 has no effect where fraud by migration agent – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 98 |
| Trevidi v Minister for Immigration and Border Protection [2014] FCAFC 42 NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 |
| Applicant: | NARENDRA KATRAGADDA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1304 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 5 May 2015 |
| Date of last submission: | 13 July 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sabelberg |
| Solicitors for the Applicant: | Sabelberg Morcos Lawyers |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the second respondent be amended to the Administrative Appeals Tribunal.
The Amended Application for Judicial Review filed 29 June 2015 be dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1304 of 2014
| NARENDRA KATRAGADDA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
Mr Narendra Katragadda (“the applicant”) has applied for judicial review pursuant to s.476 of the. Migration Act 1958 (Cth) (“the Act”) of a decision of the Migration Review Tribunal (“the Tribunal”) dated 12 June 2014 affirming a decision of a delegate of the first respondent made on 20 April 2012 refusing to grant the applicant a Skilled (Provisional) (Class VC) visa (“the visa”).
The applicant is a 26 year old citizen of India. On 9 March 2011, he applied for the visa. On page 4 of the application form, in response to the question “did you receive assistance in completing this form”, the applicant answered “No” (CB4). On page 8 of the application form the applicant stated that he had undertaken a skills assessment conducted by Trades Recognition Australia (TRA) on 15 February 2010 for his nominated occupation of “automotive electrician” (CB8). The applicant also provided a reference number: TRA10/284672183 for this assessment.
On 17 February 2012, a delegate of the Minister wrote to the applicant by email inviting him to comment on information that it had received concerning his skills assessment (CB 21-23). In that correspondence the delegate stated:
“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.”
There was no response by the applicant to that correspondence.
On 20 April 2012, a delegate of the Minister refused the visa application (CB 42-7). The delegate did so primarily on the basis that the applicant had supplied “false and misleading” information and therefore failed the test set out in Public Interest Criterion (PIC) 4020 set out in Schedule 4 of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 9 May 2012, the applicant applied to the Tribunal for review of the delegate’s decision.
On 10 February 2014, the Tribunal set out the particulars of information which, subject to the applicant’s comment or response to that information, would be the reason, or part of the reason, for the tribunal affirming the decision under review. The particulars of information related to the inclusion in the application for the visa of information that the applicant had a skills assessment from the TRA and the reference for said skills assessment, and the TRA’s subsequent advice to the Department (on 20 December 2011), that they had no record of the applicant holding a skills assessment and that the reference number did not exist.
The Tribunal stated in the correspondence (at CB 88) that:
“This information is relevant because the Tribunal may find that you did not apply to TRA for the assessment of your skills, you did not have a skills assessment from TRA and that the reference number you provided is false or misleading. The Tribunal may find that you have given, or caused to be given, to the Minister or an officer, information that was false or misleading in a material particular in relation to the visa application.”
The applicant was informed that if the Tribunal did so find, it may find that the applicant did not satisfy PIC 4020 set out in Schedule 4 to the Regulations on the basis that he had supplied “false and misleading” information, and accordingly failed to meet the requirement of cl.485.224 of Schedule 2 to the Regulations. He was informed that the requirement under PIC 4020 may be waived if the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. He was informed that if the Tribunal found his skills had not been assessed by the relevant authority (TRA) for his nominated skill occupation, the Tribunal may find that he did not have a valid skills assessment and failed to meet the requirements of cl.485.221 of Schedule 2 to the Regulations.
By correspondence to the Tribunal dated 4 March 2014 and signed by the applicant, the applicant relevantly stated at (CB 91-92):
“I went to see S & S Migration on 5 March 2011 and he told me that I am eligible for 485 Skilled graduate (provisional) (class VC), asked me (sic)to proceed accordingly. He said to me that I have to lodge the application first and later upon the allocation of case officer I have to submit the required documents such as Police check, Medicals, Ielts (sic) and assessment.
I went to S & S Migration office on 08 March 2011 to lodge my skilled Visa application along with my certificates and passport and passport size photographs, he took my credit card details for paying his fees (2265.00) for his professional services and Visa fees (235) dollars respectively. (Evidence 3)
He gave me Transaction Reference Number (TRN) for my application and said the application was lodged successfully and I waited for the decision. I keep on checking the progress of my application online and it showed my bridging visa status.
I got a letter from Mark LUGG …GSM case officer team to 2…….. on 20 April 2012 stating that my visa application was refused because of giving misleading and false information in my application and imposed PIC 4020 condition. I applied for right of information (My Visa copy details) and came to know that they have contact me on 17 February 2012 to comment on my application but I didn’t received (sic) any mail. (Evidence 4)
Later on I was aware that S & S migration gave false and misleading information by reading the decision record. I came to know that he misleaded (sic) department by giving False police check, False TRA reference no, wrong nominated occupation in my application.
I have not done any of the above-mentioned things intentionally, It was S & S Migration who gave false and misleading information and lodge the application………”
On 6 March 2014 the applicant was invited to appear before the Tribunal on 8 April 2014 to give evidence and present arguments relating to the issues in his case. The applicant was assisted by an interpreter in the Teluga and English languages at the hearing.
On 12 June 2014, the Tribunal affirmed the decision under review.
Statutory scheme
There is no dispute that, having regard to the application for the visa, the relevant subclass visa was subclass 485.
Schedule 2 of the Regulations sets out the criteria to be met for the grant of the visa. Regulation 485.224 is one of the mandatory requirements and it provides:
Regulation 485.224
The applicant:
(a)satisfies the public interest criteria…4020…
PIC 4020 is set out in Sch 4 of the Regulations relevantly as follows:
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 on a material particular in relation to:
(a)the application for the visa;
…
(4)The Minister may waive the requirements of any of all 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 that decision is made because of that information.
Tribunal decision
In its decision record the Tribunal commenced by noting that the applicant provided a written letter to the Tribunal, at 10.00am on 8 April 2014 (CB 131) stating he was not happy with the interpreter, “she didn’t know my language at least average”… “I am getting very hard to understand her language……” “Translator doesn’t know how to speak my name properly.” The applicant requested a further hearing was a different interpreter.
The Tribunal refused this request stating (CB 134 [6]):
“The tribunal considered the applicant’s request for a further hearing with another interpreter. However, in the tribunal’s view, the nature of the error identified by the applicant is minor. Also, as noted, the applicant gave the majority of his evidence in English. The tribunal is satisfied that the standard of interpreting was sufficiently accurate and that the applicant was able to give evidence and present arguments in relation to the issues arising in the review.”
The Tribunal set out the applicant’s evidence at the hearing regarding the circumstance surrounding the lodgement and content of his visa application as follows (CB 136 [17]):
“[17] At hearing the applicant confirmed the information he provided in his response to this invitation, including that:
·He applied for this visa on 9 March 2011 through S & S Migration. He paid them a fee and authorised them to make the visa application.
·He came to Australia on 15 November 2008 to undertake a Certificate III in Automotive Mechanical Technology and a Diploma of Business and Front Line Management.
·He successfully completed his course on 22 November 2010.
·He wanted to settle in Australia and went to see S & S Migration on 5 March 2011 after seeing a brochure for the agency.
·Even though the brochure stated Don’t want to study!! Don’t have 6 each in IELTS!! Apply for a work permit for up to 4 years and work full time, he thought it was a reputable agency because it had a MARN number.
·S & S Migration told him he was eligible for the skilled visa after he showed them all his documents.
·He was advised to lodge the visa application and that upon allocation of a departmental case officer, he would then be required to submit the documents such as a police clearance, medicals, IELTS test and a skills assessment.
·He took his certificates, passport and passport photos and paid a fee for the service he received from S & S Migration. He could have submitted a genuine police clearance certificate and medicals.
·The agent from S & S Migration called him after one or two days to confirm that the visa application had been made.
·He didn’t sign it and it was lodged on his behalf. He was told he would receive a copy of the visa application, although he didn’t.
·He was given a transaction reference number which said his application was lodged successfully and he awaited the decision.
·He kept checking on line for the progress and it showed his bridging visa status.
·When he needed to return to India, he went to the Department to apply for a bridging B visa, although he didn’t ask to see a copy of the visa application.
·When his application was refused, he found that S & S Migration has given false and misleading information.
·He did not do this intentionally.
The Tribunal found that (CB 137 [18]):
a)the applicant gave S & S Migration the authority to lodge the visa; and
b)the applicant made a valid visa for subclass 485 visa.
The Tribunal held that, on the basis of the authority of the Full Court of the Federal court of Australia: Trevidi v Minister for Immigration and Border Protection [2014] FCAFC 42 (Trevidi), it was unnecessary for the Tribunal to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged (CB 137 [19]).
The Tribunal then found that, the information on the application form that the applicant caused to be given to the Department stating that he had a skills assessment from TRA dated 15 February 2010 with a reference/receipt number (TRA …2183) was false or misleading in a material particular. It stated it was satisfied that this information was purposely untrue (CB 137 [20]).
The Tribunal found that (at CB 138[21]):
“… there is evidence that the applicant has given, or caused to be given, to the Minister or an officer, information that is false or misleading in a material particular in relation to the application for the visa. The Tribunal finds that such information was relevant to cl.485.221. The Tribunal is not satisfied that the applicant meets PIC 4020(1).
As to whether the requirements of PIC 4020 should be waived, the Tribunal set out the evidence given by the applicant as follows (CB 138 [23] and [25]):
“23. In terms of compassionate or compelling circumstances, the applicant said he didn’t make this mistake, it was caused by the agent from S & S Migration. The applicant said he had found 24 other tribunal cases linked to S & S Migration and he had seen in the newspaper that it was involved in the fraud. He feels he is a victim. As put to the applicant, the Tribunal must consider whether the course of false or misleading information to be given when considering whether he meets PIC 4020(1). The applicant feels that he hasn’t committed any fraud and his future is being affected by this one small incident.
…
25. The applicant also asked the tribunal to consider that he has applied for a subclass 187 Visa and the nomination has been approved. He is working as a retail manager for Famlea Pty Ltd. His employer has another business in Perth and relies on him and trusts him to manage $30,000 to $40,000 in cash each day. He has worked there for one year, and his employer would find it difficult to replace him.”
The Tribunal held that it was not satisfied that the applicant’s personal circumstances amounted to compelling circumstances within the meaning of PIC 4020(4). With respect to the applicant’s evidence regarding the impact on the business the applicant was working for, the Tribunal found that, “the cost to the business of recruiting, training and replacing a staff member, albeit one is trusted and relied upon, is an ordinary aspect of the operation of most businesses and occurs on an ongoing basis.” (CB 138 [26]) It, therefore, found there were no compelling reasons within the meaning of PIC 4020(4) to waive the requirements of PIC 4020(1).
Given its findings, the Tribunal held that the applicant did not satisfy PIC 4020 for the purposes of cl. 485.224. The Tribunal affirmed the decision under review.
Judicial review
In his application for judicial review filed 30 June 2014, the applicant specified the following grounds of judicial review:
(1)The tribunal failed to take adequate notice of the fact that the applicant engaged the registered migration agent to lodge his application.
(2)The tribunal failed to adequately 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 an Australian citizen. IE need to supply skilled persons for shortages in the Australian workforce
The applicant filed an affidavit with his application for judicial review on 30 June 2014, in which he relevantly deposed :
(3) I engaged S & S migration to lodge my application. They were registered migration agents. I paid them a fee as required.
(4) They said they would contact me when any further documents were required. My fees included amounts for all necessary documents.
(5) I did not know they lodged fraudulent documents.
(6) Immigration apparently raided S & S migration because they lodged fraudulent documents for a number of clients.
(7) I am advised the proprietor of migration services went back to India.
(8) DIAC advised me that in order to get the 485 visa I needed to satisfy public interest criteria set out in regulation 485.224 including public interest criteria 4020.
(9) I did not supply false or misleading information to the Department Of Immigration. My immigration agent did so without my knowledge.
(10) Both the immigration department, and the MRT decided I did not meet public interest criteria 4020.
(11) They failed to differentiate between a case where somebody wilfully lodged false documents and when a licenced migration agent duped his clients took the fees provided for provision of TRA certificates police clearances and lodged false documents.
(12) I believe the migration service tribunal has committed an error of law in failing to differentiate between the two situations.
At the hearing of this matter on 8 May 2015, it became apparent that those grounds of appeal did not adequately reflect the submissions being made by the applicant’s solicitor. The applicant was granted leave, and orders were made, that the applicant file an amended application for judicial review, affidavit and further written submissions and for the first respondent to inform the Court if they wished to cross-examine the applicant and to provide further written submissions in response. An amended application and affidavit and outline of submissions were filed by the applicant. The first respondent advised that it did not wish to cross-examine the applicant and filed a further outline of submissions.
By his amended application filed on 29 June 2015, the applicant grounds of judicial review are:
“[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 has not obtained a skills assessment from Trades Recognition Australia (TRA);
(c)Fraudulently and without the knowledge of the Applicant, the migration agent provided false information in the visa application, namely that he did have such an assessment;
(d)Fraudulent 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;
(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.
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 filed a further affidavit on 29 June 2015, in which he deposed that he had little to add to his correspondence to the Tribunal dated 4 March 2014 and his affidavit filed 30 June 2014. He deposed:
“[3]…What I want to stress is that I placed my trust in the migration agent at S & S Migration. When I came to Australia I was concentrating on my studies. I did not have any reason to know or use any lawyers or migration agents. When I saw the flyer for the migration agents I went to their offices. They looked professional to me. I believed that they were who they said they were. I had confidence in them because they were registered with the Australian government. I assumed they must have passed the necessary exams to be recognised.
[4] When I spoke to the agent he said nothing which made me suspicious. He did not say anything that suggested he was up to no good or say that he would help me get a visa which I was not entitled to. He told me that he would put the application in and that I could submit my police clearance, health form, IELTS test results and TRA assessment later, because the Department would take about eighteen months before they opened my file and processed it. This sounded reasonable to me, coming from a person who presented himself as knowledgeable about migration law and process. Also, as he was Indian like me, I had further reason to trust him.
[5] It is important to say that at the time I saw the migration agent I honestly believed that I could meet the requirements of the visa, not on that day, but by the time the Department looked at my file. It is not like I knew there was a problem and just shut my eyes.
[6] I knew about the IELTS requirement. I had already sat some tests but did not get a good enough score in each component. I though with more practice and experience in English, I would be able to qualify. Also, at the time, I knew I would need a TRA assessment. I thought that I would be able to find work for the required hours, which had recently changed from 900 to 450 hours. Later I was able to get a job at Beaurepaires Tyres, which was in my skill area, and would have been enough to go to the TRA. I was not like some people I have since heard of who never even try to get work in their skill area. My current work with the Caltex Service Station shows I have carried through with my automotive and management skills.
[7] Because I had never been in trouble with the police I knew that I would be able to get a police clearance. I was healthy and thought I would have no trouble passing the health check. There was no need for the migration agent to say anything false about these two things. I would have submitted the documents m (sic) when he asked me for them.
[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. I was shocked to learn I had been tricked.
[9] When I went to the migration agent I expected that he would lodge the application for me, but only using the correct information. I did not give him any permission to say anything untrue. I have always been a law abiding person, in India and since being in Australia. If I thought I could not qualify for the visa I would not have gone ahead. I would have tried for a different visa and if that was not available, I would have gone home and tried to get someone to sponsor me to return. I had no interest to break Australian migration law.”
Grounds One and Two
It is not clear how the first ground of judicial review can be said to give rise to jurisdictional error, unless it is connected to the applicant’s second ground of review, which is directed to the applicant’s knowledge that the visa application contained false and misleading information.
The gist of the matters the applicant deposes to in his affidavits is that he engaged S & S Migration to file his application but he was not aware and did not have any reason to be suspicious of the fact that S & S Migration had or would include false information. He says he only became aware that S & S Migration had lodged fraudulent documents when he sighted a copy of the delegate’s decision refusing his application for the visa. In his affidavit filed 30 June 2014 he complains that the Tribunal failed to distinguish between circumstances where an applicant, “wilfully lodged false documents and when a licence migration agent tricked his clients took the fees ………….and lodged false documents.”
Section 98 of the act provides:
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
The applicant’s evidence was that, he engaged S & S migration to lodge his application. Consequently, the applicant is fixed with responsibilities for the actual content of the application filed on his behalf whether or not he completed the application form himself: NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 (NAWZ) at [16]. NAWZ concerned circumstances where the applicant purposely included false information. In SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393, the migration agent completed the visa application without instructions from the agent. Justice Bennett held (at[16]):
“16 The appellant authorised and caused his migration agent to fill in the visa application form on his behalf. While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies. Section 98 does not require a covert purpose to mislead. The Federal Magistrate was not in error in finding that, in the circumstances, the visa application was valid.”
In Trivedi & Ors v Minister for Immigration & Border Protection & Anor [2014] FCAFC 42 (Trivedi), Justice Buchannan (with whom Allsop CJ and Rangiah J concurred) stated, with respect to the character or quality of documents or information to which PIC 4020 is directed (at [32]):
“32.It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could not explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended and accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
and concluded (at [33]):
In my view, it is not necessary to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.”
White J in Singh v Minister for Immigration & Border Protection [2014] FCA 850 at [23], described the effect of Trivedi as being that “it was not necessary for the application of PIC 4020 that an applicant be knowingly involved in the giving of false information, but that it was necessary that the information be purposely untrue.”
It is apparent from the authorities that, consistent with the evident intent and purpose of PIC 4020, irrespective of an applicant’s knowledge of or complicity in the inclusion of false and misleading information, where a document has the quality of purposeful falsity PIC 4020 will apply. The Tribunal found that the application for the visa was purposely untrue. I am satisfied that this finding was open to it. The Tribunal was not required to determine the applicant’s knowledge of or complicity in that.
Consequently, I find that grounds one and two, either separately or cumulatively do not give rise to jurisdictional error.
Ground three
By this ground the applicant asserts the decision of the Tribunal was affected by jurisdictional error in that it failed to consider a claim made by the applicant in its determination as to whether there were compelling circumstances within the meaning of PIC 4020(40(a).
The claim the applicant asserts he made is that there was a need to supply skilled persons for shortages in the Australian workforce.
The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [61] (Black CJ, French and Selway JJ). The articulated claim must arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J). An unarticulated claim that is raised on the evidence will not depend for its exposure on constructive or creative activity by the Tribunal: NABE at [58].
On a fair reading of the applicant’s evidence before the Tribunal, I am not satisfied that it can be said that the claim that there was a need to supply skilled persons for shortages in the Australian workforce arose expressly or clearly from the materials before the Tribunal. The applicant’s evidence was focused on the prejudice the employer he worked for, would suffer were the delegate’s decision affirmed by the Tribunal. The applicant did not give evidence at all or refer even indirectly to the question of skilled shortages in the Australian workforce and the impact a decision affirming the delegate’s decision would have on this feature of the Australian labour market.
Consequently, I find that ground three does not give rise to jurisdictional error.
The issue of fraud: Ground four
In his written submissions filed 29 June 2015, the applicant observes that each of grounds four and five of his judicial review application is dependent upon the applicant satisfying the Court that the migration agent engaged in fraud (at [5]).
The applicant submits, that there was no suggestion that the applicant had filled out the application form himself, nor that he was a party to the creation of the false information which was clearly inserted by the migration agent (at [9]). The applicant submits at[10]:
“In this regard it is important to note that the Tribunal did not make a finding, as has occurred in a number of other like cases, that the applicant was complicit in the fraud, or was indifferent about the content of his application, or otherwise acquiesced in the conduct of the agent. Rather, the Tribunal, having found that the document was purposely untrue, simply went on to find that the applicant had given or cause a document to be given to an officer of the Department (CB 138 at [21]).”
Invalid visa application: Ground four
The applicant concedes, in his written submissions, that the argument that the visa application was invalid is contrary to the decision in Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (Prodduturi), which is binding on this Court. The applicant notes that this decision was applied in Singh v Minister for Immigration and Border Protection [2015] FCCA 509 (Singh).
Consequently, he submits that, “there is little purpose served by detailed argument in support of an argument that is presently bound to fail. The applicant simply seeks to preserve his position (should, prior to the decision in this matter, special leave be granted in Prodduturi and/or the Full Court of the Federal Court in Singh disagrees with its reasoning, the applicant would then seek the opportunity to further addressees authorities)”.
Given that this ground of review is doomed to fail, I have found it unnecessary to consider this ground of review but rely on the reasoning in Singh at [46] to [50 ].
For the reasons given, I find that ground 4 does not give rise to jurisdictional error.
Agency and Fraud: Ground five
This ground raises the question whether the Tribunal was obliged, in determining whether the applicant satisfied PIC 4020, to determine whether the migration agent engaged in fraud on the applicant and, if so, whether the applicant could be held responsible for that fraud. The applicant, in his written submission at [17] states:
“… the Tribunal failed to address the question of whether, based on the applicant’s evidence, there was an agency created between the applicant and his migration agent and, if so, the extent of that agency. The applicant further submits that the Tribunal failed to make a finding on whether there was a fraud perpetrated upon the applicant and/or the department and, if so, whether the fraud vitiated that part of the application form which related to the false information.”
The applicant further submits that (at [20]):
“… When the question of fraud arose, the Tribunal was required, in order to complete the review process, to consider the nature of the agency, and the extent to which the provision of false information was within the scope of that authority. If that aspect of the conduct was beyond the scope of authority, it was open to the Tribunal to find that PIC 4020 did not apply, because the agent’s fraud had the effect of breaking the chain of causation. It was not sufficient for the Tribunal to find, as it did, that the applicant had given or caused to be given information which was false. This did not address the underlying legal basis for the “giving” or “causing to give” and was tantamount to imposing absolute liability for all of the actions of the agent.”
The Tribunal found that the “applicant’s actions established that he gave S & S Migration the authority to lodge the visa application” (CB 137 [18]). This finding was clearly open on the evidence given by the applicant.
The applicant’s submission that the Tribunal was obliged, in determining whether the applicant satisfied PIC 4020, to determine whether an agency existed between the applicant and S & S Migration is rejected for the reasons set out at [32] to [37] above.
There is no doubt that a Tribunal must consider whether an element of fraud or deception exists. However, this is satisfied by a finding that the information provided is purposely untrue.
The Tribunal found that the information relating to skills assessment contained in the application for the visa was, “purposely untrue” (CB 137 at [20]).
In Patel v Minister for Immigration and Border Protection [2015] FCAFC 22, Justice Buchanan, who delivered the primary judgment of the Full Court in Trivedi, summarised Trivedi as follows at [7]:
In Trivedi …, a Full Court decided that “an element of fraud or deception is necessary in order to attract the operation of PIC 4020” (see at [33]) and “that PIC 4020 is directed to information or documents which are purposely untrue” (see at [49]). It was also held that it was not necessary, in order to engage the operation of PIC 4020, that a visa applicant “was knowing or complicit in the deceptive character of the information … furnished” (see at [43], [45], [50], [52]).
The applicant’s argument that the Tribunal was obliged in performing its statutory function, to determine whether there was fraud engaged in by the agent is, in my opinion inconsistent with the decision established in Trivedi ( see [34] above) and for that reason is rejected.
Accordingly, I find that ground five does not give rise to jurisdictional error.
Conclusion
For the reasons set out above, I would dismiss the Application for Judicial Review and order costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 11 September 2015
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