Kaur and Ors v Minister for Immigration and Anor and Prodduturi v Minister for Immigration and Anor
[2013] FCCA 1805
•12 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR and PRODDUTURI v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1805 |
| Catchwords: MIGRATION – Allegation that applications lodged as a result of agent’s fraudulent conduct – whether applications valid – s.98 of the Migration Act 1958. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decisions affected by jurisdictional error by reason that it misapplied Public Interest Criterion 4020. |
| Legislation: Migration Act 1958, ss.98, 359A, 474 Migration Regulations 1994, cls.485.214, 485.221, 485.224 of sch. 2, Public Interest Criterion 4020 of sch.4 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Briginshaw v Briginshaw (1938) 60 CLR 336 Helton v Allen (1940) 63 CLR 691 Rejfek v McElroy (1965) 112 CLR 517 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 |
| First Applicant: | GAGANDEEP KAUR |
| Second Applicant: | BEANT SINGH |
| Third Applicant: | ABIJOT KAUR SOHI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1315 of 2013 |
| Applicant: | KARTHIK REDDY PRODDUTURI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1169 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 1 November 2013 |
| Date of Last Submission: | 1 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr P. Afshar |
| Solicitors for the Applicants: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
SYG 1315 of 2013
The application be dismissed.
SYG 1169 of 2013
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1315 of 2013
| GAGANDEEP KAUR |
First Applicant
| BEANT SINGH |
Second Applicant
| ABIJOT KAUR SOHI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
SYG 1169 of 2013
| KARTHIK REDDY PRODDUTURI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Ms Kaur and Mr Prodduturi are citizens of India who separately applied for Skilled (Provisional) (Class VC) subclass 485 visas in 2011. Ms Kaur’s husband and child were included in her application as members of her family unit. Both Ms Kaur’s and Mr Prodduturi’s applications were refused by a delegate of the first respondent (“Minister”) on the basis that they did not satisfy the requirements of cl.485.224 of sch.2 to the Migration Regulations 1994 (“Regulations”) because they did not meet Public Interest Criterion 4020 (“PIC 4020”), which is found in sch.4 to the Regulations. Both of them applied to the second respondent (“Tribunal”) for review of the refusals to grant them visas and both were unsuccessful. They have applied to this Court for judicial review of the Tribunal’s decisions. At the parties’ request, the two matters were heard together.
The Court’s task in each of these proceedings is to determine whether the Tribunal’s decisions were affected by jurisdictional error as that is the only basis upon which they can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, both applications will be dismissed.
Relevant legislation
At all times relevant to the present proceedings the criteria for the grant of a Skilled (Provisional) (Class VC) subclass 485 visa were set out in pt.485 of sch.2 to the Regulations. That part of the Regulations was repealed and replaced earlier this year in a manner which did not affect these proceedings. When the present applicants applied for subclass 485 visas, one of the criteria for the grant of the visas was cl.485.214 which required them to satisfy the Minister that they had, at the time of applying for the visas, already applied to a relevant assessing authority for an assessment of their skills for their nominated skilled occupation. Clause 485.221 also applied to the applications. To satisfy it the applicants had to show, as at the time of decision, that a relevant assessing authority had assessed their skills as being suitable for their nominated skilled occupation.
A further time of decision criterion was cl.485.224 which required applicants to satisfy a number of public interest criteria including PIC 4020, which relevantly provides:
(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 the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
…
(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.
Background facts
Kaur & Ors
Visa application
Ms Kaur made her application on 15 February 2011 and nominated the occupation of cook. She stated that on 21 April 2009 she had applied to Trades Recognition Australia (“TRA”) for a skills assessment and she provided a TRA receipt/reference number.
On 20 February 2012 the Department wrote to Ms Kaur and her family seeking their comments on adverse information relating to their visa applications. That information was that during a departmental investigation the Department had identified a file with Ms Kaur’s personal details, and her application reference number, in the offices of S & S Migration, a business which had been found to have lodged visa applications containing false and misleading information. As a consequence, the TRA reference number provided by Ms Kaur had been referred to TRA for checking and TRA had advised the Department that it had no record of her, that the reference number she had provided could not be verified because it did not exist in TRA’s systems and that it had no record of her ever holding a skills assessment from it.
Ms Kaur and her family did not respond to the Department’s invitation to comment and on 11 May 2012 the delegate refused to grant them visas on the basis that Ms Kaur had provided false and misleading information with her visa application and therefore did not meet PIC 4020.
Review application
On 8 February 2013 the Tribunal wrote to Ms Kaur and her family pursuant to s.359A of the Act seeking their comments on, or response to, the information that Ms Kaur’s TRA reference number was false.
In a statement dated 14 May 2013 Ms Kaur responded to the Tribunal’s invitation and made the following claims:
a)her friends had told her about an agent who could help her apply for a visa even though she did not have the required English language test score. Another person who was in the same situation had shown her an approved application on-line and because of that she had trusted her friends;
b)her friends took her application for a skills assessment and gave it to S & S Migration. She deposited $2,500 into an account for S & S Migration to lodge her application but was not issued with a receipt;
c)she did not sign a copy of the TRA application form and was not aware of the details in her visa application. Certain of her details in the TRA application and in the visa application were incorrect;
d)her contact details as provided to the Department were incorrect and she only found out about the delegate’s decision when one of her friends forwarded the application to her;
e)the migration agent had never made contact with her and she had not spoken to him. She had not intentionally provided the Department with false or misleading information; and
f)although she knew that she did not meet the criteria for the subclass 485 visa, she wanted discretion to be applied to her case so she could have an opportunity to make an application in Australia. She asked the Tribunal to not apply PIC 4020.
On 15 May 2013 Ms Kaur appeared before the Tribunal and said that she had provided all her documents to a friend who then forwarded them to the migration agent. Ms Kaur said that she had told the migration agent to make an application on her behalf if she was eligible for the visa but if she was not, to return her documents to her. She claimed that she had not known that the agent would do something wrong. Ms Kaur confirmed that she did not have a skills assessment. She said that she had done nothing wrong and had nothing to return to in India.
The Tribunal’s decision and reasons
The Tribunal noted Ms Kaur’s evidence that she had, through a friend, approached a migration agent to make a skilled visa application for her and had paid the agent a fee to do so. In those circumstances, the Tribunal found that an agency relationship had been established and that the migration agent had acted as Ms Kaur’s agent when making the application.
Based on Ms Kaur’s oral evidence that she had not obtained a skills assessment from TRA for the occupation of cook, the Tribunal was not satisfied that she had been assessed by the relevant assessing authority for her nominated occupation. It therefore found that she did not satisfy the requirements of cl.485.221 of sch.2 to the Regulations.
Although it had found that Ms Kaur did not satisfy the requirements of cl.485.221 and that it was therefore unnecessary to consider the remaining visa criteria, the Tribunal nevertheless concluded that Ms Kaur had given or caused to be given to the Minister information that was false and misleading in a material particular and therefore did not meet PIC 4020. In this connection:
a)the Tribunal found that Ms Kaur had not applied for a TRA skills assessment and that the TRA reference number she had supplied was not a genuine number relevant to a skills assessment application. It found that the information on the application form indicating that she had applied for a skills assessment to TRA, which she had given or caused to be given to the Minister, was false or misleading in a material particular;
b)the Tribunal noted Ms Kaur’s submission that she had had no knowledge of the agent’s fraudulent actions and had not instructed the agent to provide false information. However it found that it did not need to consider her intent or knowledge in order to determine the application of PIC 4020. The Tribunal considered that once it found that Ms Kaur had given or caused to be given information that was false and misleading in a material particular, her claimed lack of knowledge was not determinative; and
c)whilst acknowledging Ms Kaur’s submissions with respect to the waiving of PIC 4020, the Tribunal found that they did not establish compassionate or compelling circumstances which would justify granting the visa.
Prodduturi
Visa application
Mr Prodduturi made his application on 8 September 2011 and nominated the occupation of cook. He stated that on 24 October 2010 he had applied to TRA for a skills assessment and he provided a TRA receipt/reference number.
On 17 February 2012 the Department wrote to Mr Prodduturi seeking his comments on adverse information relating to his visa application. That information was that during a departmental investigation the Department had identified a file with Mr Prodduturi’s personal details, and his application reference number, in the offices of S & S Migration, a business which had been found to have lodged visa applications containing false and misleading information. As a consequence, the TRA reference number provided by Mr Prodduturi had been referred to TRA for checking and TRA had advised the Department that it had no record of him, that the reference number provided by him could not be verified because it did not exist in its systems and that it had no record of him ever holding a skills assessment from it.
Mr Prodduturi did not respond to the Department’s invitation and on 27 April 2012 the delegate refused to grant him a visa on the basis that he had provided false and misleading information with his visa application and therefore did not meet PIC 4020.
Review application
In a statement dated 30 April 2012 Mr Prodduturi stated that after he had finished his studies he consulted S & S Migration and had paid them $5,000 in order to obtain a work permit. He stated that the migration agent at S & S Migration had told him that he did not need to study and that he would be granted a bridging visa with full-time work rights until his work permit was granted. Mr Prodduturi stated that he later found out that S & S Migration was investigated by the federal police and that all the visas lodged as work permits were “dodgy and bogus” and were actually subclass 485 visas. He stated that he was a victim of S & S Migration and had done nothing wrong.
On 4 February 2013 the Tribunal wrote to Mr Prodduturi pursuant to s.359A of the Act seeking his comments on, or response to, the information that his TRA reference number was false.
In a response dated 11 March 2013 Mr Prodduturi’s representatives submitted that, unbeknownst to Mr Prodduturi and outside any agency agreement or contract, S & S Migration had created a false or bogus TRA skills assessment and had provided it to the Department. It was submitted that no valid application had been made on Mr Prodduturi’s behalf and that therefore cl.485.214 of sch.2 to the Regulations was not relevant. Mr Prodduturi’s representatives submitted that PIC 4020 could not apply to Mr Prodduturi because at the time he had made his application, TRA had not been appointed as the relevant assessing authority for his occupation.
Mr Prodduturi made the following claims at a Tribunal hearing on 14 May 2013:
a)the migration agent at S & S Migration had told him that he was eligible for a subclass 485 visa and that it was the most suitable visa for him;
b)he had asked the migration agent to look at his documents and tell him whether they were relevant to a subclass 485 visa. The agent had told him that he had made many such applications. He told the agent to lodge an application on his behalf if his documents met the requirements for the visa;
c)the agent had told him that he was applying for a subclass 485 visa and he had known that that was the application being made. He had also received a letter from the Department advising him of the grant of a bridging visa and informing him that he had applied for a skilled visa. Mr Prodduturi later said that at the beginning the agent had only said he could obtain a work visa and then later mentioned the subclass 485 visa;
d)he did not know anything about the reference in the visa application to him having applied to TRA for a skills assessment; and
e)he had been misled by S & S Migration. He had paid the migration agent but later found out that he had disappeared. He had not intentionally done anything wrong.
The Tribunal’s decision and reasons
The Tribunal found that Mr Prodduturi had been aware of the kind of application that S & S Migration had been making on his behalf. In this connection, the Tribunal noted Mr Prodduturi’s evidence at its hearing that he had sought advice about his options and that after S & S Migration had recommended the subclass 485 visa, he had instructed them to apply for that visa if he met the requirements. It also noted Mr Prodduturi’s confirmation at its hearing that he had been aware that he had been making a subclass 485 visa application and that he had received the acknowledgement letter from the Department which referred to his application for a skilled visa. The Tribunal therefore found that Mr Prodduturi had instructed S & S Migration to apply for a subclass 485 visa on his behalf and had paid it to do so. It found that Mr Prodduturi had left the details to S & S Migration and appeared to have been indifferent to the content or nature of his application. In those circumstances, the Tribunal was satisfied that an agency agreement had been established and that S & S Migration had acted on Mr Prodduturi’s behalf by lodging the subclass 485 visa application. The Tribunal concluded that the application for the visa had been validly made.
Based on Mr Prodduturi’s oral evidence that he had not obtained a skills assessment from TRA for the occupation of cook, the Tribunal was not satisfied that he had been assessed by the relevant assessing authority for his nominated occupation and it therefore found that he did not satisfy the requirements of cl.485.221 of sch.2 to the Regulations.
Although it had found that Mr Prodduturi did not satisfy the requirements of cl.485.221 and that it was therefore unnecessary to consider the remaining visa criteria, the Tribunal nevertheless concluded that Mr Prodduturi had given or caused to be given to the Minister information that was false and misleading in a material particular and therefore did not meet PIC 4020. In this connection:
a)the Tribunal found that Mr Prodduturi had not applied for a TRA skills assessment and that the TRA reference number he had supplied was not a genuine number relevant to a skills assessment application. It found that the information on the application form indicating that Mr Prodduturi had applied for a skills assessment to TRA, which he had given or caused to be given to the Minister, was false or misleading in a material particular;
b)the Tribunal noted Mr Prodduturi’s submission that he had had no knowledge of the agent’s fraudulent actions and had not instructed the agent to provide false information. However, it found that it did not need to consider his intent or knowledge in order to determine the application of PIC 4020. The Tribunal considered that once it found that Mr Prodduturi had given or caused to be given information that was false and misleading in a material particular, his claimed lack of knowledge was not determinative;
c)the Tribunal was satisfied that at the time Mr Prodduturi made his application TRA had been validly nominated as a relevant assessing authority and therefore that PIC 4020(1) applied; and
d)given its finding that Mr Prodduturi had been aware that he had been making an application for a skilled visa, the Tribunal did not consider that he had been an innocent victim of fraud. The Tribunal did not accept that Mr Prodduturi had been entirely ignorant of the requirements of the visa he was seeking, including the need for a skills assessment. It found that he had had an opportunity to monitor his migration agent’s actions through checking the application form before it was submitted or by contacting the Department but had not done so. The Tribunal concluded that Mr Prodduturi’s circumstances were not compassionate or compelling circumstances which would justify granting the visa.
Proceedings in this Court
The grounds in the amended applications filed in both proceedings were pleaded in very similar terms.
Ground 1
Ground 1 of Ms Kaur’s amended application alleged:
1.The Migration Review Tribunal (Tribunal) erred when it treated the application (Application) for a Skilled (Provisional) (Class VC, subclass 485) visa (Visa) as a valid application.
Particulars
a.The migration agent engaged in fraudulent conduct when lodging the Application.
b.The fraudulent conduct of the migration agent amounted to fraud committed on the Applicant and on the Commonwealth.
c.Fraudulently, the migration agent provided false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.
d.Fraudulently, the migration agent provided a false Trades Recognition Australia reference number for a successful skills assessment as part of the Application.
e.The Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to a criminal offence involving fraud on the Commonwealth.
f.The Application was not a valid application and was void ab initio.
Mr Prodduturi particularised an identical allegation as follows:
a.The Applicant did not authorise the lodgment of the Application.
b.The migration agent engaged in fraudulent conduct when lodging the Application.
c.The fraudulent conduct of the migration agent amounted to fraud committed on the Applicant and on the Commonwealth.
d.Fraudulently and without the knowledge of the Applicant, the migration agent provided false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.
e.Fraudulently and without the knowledge of the Applicant, the migration agent provided a false Trades Recognition Australia reference number for a successful skills assessment as part of the Application.
f.The Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to a criminal offence involving fraud on the Commonwealth.
g.The Application was not a valid application and was void ab initio.
The essence of the applicants’ submissions in connection with this ground was that their applications had been lodged as a result of fraudulent conduct on the part of their migration agent and that, as a result, those applications were not valid.
Whether the migration agent acted fraudulently such that the applicants ought not to have responsibility as principals for his actions, was an issue on which the applicants bore the onus of proof. Significantly, and as the applicants’ written submissions made clear, it was an allegation which imputed conduct amounting to a breach of the Act and contravention of the Migration Agents Regulations 1998. Proof of matters of such seriousness is to be approached having regard to s.140 of the Evidence Act 1995 and relevant antecedent authorities such as Briginshaw v Briginshaw (1938) 60 CLR 336, Helton v Allen (1940) 63 CLR 691, Rejfek v McElroy (1965) 112 CLR 517 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.
Apart from transcripts of the hearings before the Tribunal, to which no particular reference was made, the applicants adduced no evidence supportive of their allegations that a fraud had been practised on them or on the Minister’s department. The only other material which was arguably before the Court were the Court Books of which one was filed in each proceeding. Significantly, the applicants did not give evidence in these proceedings and did not expose themselves to having their accounts tested in cross examination. In such circumstances, the versions of events they advanced, which were derived from their evidence to the Tribunal, must be accorded little weight.
Given the slight weight to be attached to the applicants’ versions of events and noting the absence of other evidence on the issue, I am not satisfied that the applicants have proved their allegations that their agent acted fraudulently in the preparation and lodgment of their visa applications.
The applicants also alleged that their agent exceeded his instructions. However, even if proved, that fact would not make the visa applications invalid for the purposes of the Act.
Ms Kaur gave to the Tribunal two inconsistent versions of the relevant events. In the first version she said that she had never spoken to the agent although she had, through a friend, asked him to lodge a visa application for her even though she knew that she did not satisfy at least one criterion for the grant of a visa. In the second version she said that she had told the agent to make a visa application for her only if she was eligible for a visa. Ms Kaur did not explain why she changed her account and, as already noted, did not give evidence in these proceedings. I find that her first version of events is likely to be the more accurate of the two. I therefore conclude that she gave the migration agent authority to lodge an application for her, even if she was not aware, and might not have approved, of its content had she known what was in it. In Mr Prodduturi’s case, he was aware that a visa application was being made on his behalf even if he did not know exactly what it contained.
Section 98 of the Act provides:
98 Completion of visa application
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.
In light of the above facts, the effect of s.98 is that each applicant is taken to have filled in the application which was lodged on their behalf with the consequence that no question of the agent’s authority to complete the forms arises. In such circumstances, no question of the validity of the applicants’ applications by reason of want of authority on the part of the agent arises either.
Ground 2
Ground two of Ms Kaur’s amended application alleged:
2.The Tribunal erred when it held that an agency agreement was established between the Applicant and the migration agent and that the migration agent had lodged the Application on the Applicant’s behalf.
Particulars
a.The migration agent engaged in fraudulent conduct when lodging the Application.
b.The fraudulent conduct of the migration agent amounted to fraud committed on the Applicant and on the Commonwealth.
c.Fraudulently, the migration agent provided false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.
d.Fraudulently, the migration agent provided a false Trades Recognition Australia reference number for a successful skills assessment as part of the Application.
e.The migration agent acted beyond any agency agreement that existed between the migration agent and the Applicant when the migration agent committed fraud as set out at a. to d. above.
f.The Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to criminal offences involving fraud on the Applicant and the Commonwealth.
g.The Application was not made “on behalf of” the Applicant, because the Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to criminal offences involving fraud on the Applicant and the Commonwealth.
Mr Prodduturi made the same allegation but particularised it as follows:
a. The Applicant repeats paragraphs 1a to 1f above.
b.The Application was not made “on behalf of” the Applicant, because the Applicant did not, or could not, authorise conduct on the part of the migration agent, which amounted to criminal offences involving fraud on the Applicant and the Commonwealth.
To the extent that this ground alleged that the applicants’ migration agent acted fraudulently and exceeded his instructions, for the reasons given in relation to the first ground of the applications, it is not made out.
As to the other particulars of this allegation:
a)no fraud was committed on the Commonwealth because in each case both the delegate (who was the same person in each case) and the Tribunal member (who was also the same person in each case) were aware of the untruthful nature of the contents of the visa applications; and
b)the operation of s.98 of the Act is not subject to any express or implied limitation in circumstances where a visa application is associated with or the product of unlawful conduct.
Ground 3
Ground three of Ms Kaur’s amended application alleged:
3.The Tribunal erred when it held that there was evidence that the applicant had given, or caused to be given, to the first respondent or an officer of the first respondent, information that is false or misleading in a material particular in relation to the Application.
Particulars
a.Fraudulently and without the knowledge of the Applicant, the migration agent provided false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.
b.The migration agent acted beyond any agency agreement that existed between the migration agent and the Applicant when the migration agent committed fraud as set out at 2a. to 2d. above.
c.The Applicant did not, or could not, authorise conduct on the part of the migration agent, which amount to criminal offences involving fraud on the Applicant and the Commonwealth.
d.the Applicant did not give to the first respondent or an officer of the first respondent the false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia.
e.The Applicant did not cause the false confirmation that the Applicant had obtained a successful skills assessment from Trades Recognition Australia to be provided to the first respondent or an officer of the first respondent.
The particulars of Mr Prodduturi’s identical allegation were not relevantly different from Ms Kaur’s.
The third ground of the applications invited the Court to make factual findings different from the ones reached by the Tribunal. The Court does not have power to do that. In any event, it was open to the Tribunal to conclude on the evidence before it that the applicants had authorised the making of the visa applications. This had the further consequence that it became open to the Tribunal to conclude, the material before it being sufficient for the purpose, that there was evidence that information had been given in those applications which was false or misleading in a material particular.
Conclusion
The applicants have not proved that the Tribunal’s decisions were affected by jurisdictional error as alleged.
Consequently, the applications will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 12 November 2013
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